Whyman v Police - [2014] NZHC 2889

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-316 [2014] NZHC 2889

BETWEEN
MARK FREDERICK WHYMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 November 2014

Appearances:

K Harding for Appellant
J Carlyon for Respondent

Judgment:

20 November 2014

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 20 November 2014 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

WHYMAN v NEW ZEALAND POLICE [2014] NZHC 2889 [20 November 2014]

[1] Mr Whyman pleaded guilty in the District Court to a charge of driving a motor vehicle whilst his licence was suspended.1 On 28 August 2014, Judge Bergseng sentenced Mr Whyman to 80 hours community work and disqualified him from driving for a period of one year and one day.2

[2] Mr Whyman appeals to this Court against the order for disqualification. He contends that the Judge ought to have exercised his discretion under s 94 of the Land Transport Act 1998 (the Act) to sentence him to a community-based sentence rather than a period of disqualification.

The offending

[3] Mr Whyman was suspended from driving from 5 May 2014 until 4 August

2014. The suspension occurred because he had incurred excess demerit points as a result of infringement notices issued against him in respect of speeding offences.

[4] At 2.20 am on 14 May 2014, a police patrol vehicle stopped Mr Whyman whilst he was driving his motor vehicle in Henderson. He immediately acknowledged that his licence was suspended.

[5] Mr Whyman explained his offending on the basis that it was driven by necessity. His partner suffers from stomach cancer, and drinks alcohol to deal with this. At approximately 2 am on 14 May 2014, she awoke after having consumed alcohol earlier in the evening. An argument ensued, during which Mr Whyman’s partner attacked him. Mr Whyman then decided to leave the address and to spend the remainder of the night at a friend’s house. He decided to drive because he was concerned that if he left on foot his partner may drive after him when she was in no
fit state to do so. He was stopped by the police patrol en route to his friend’s house.

1 Land Transport Act 1998, s 32(1)(c) and 32(4).
2 New Zealand Police v Whyman DC Waitakere CRI-2014-090-2468, 28 August 2014.

Relevant principles: s 94 of the Land Transport Act 1998

[6] Section 94 of the Act provides as follows:

94 Substitution of community-based sentences

(1) This section applies if—

(a) the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b) The court, having regard to—

(i) the circumstances of the case and of the offender; and

(ii) the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii) the likely effect on the offender of a further order of disqualification; and

(iv) the interests of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whyman v Police

Details

AGLC: Whyman v Police [2014] NZHC 2889
Case: [2014] NZHC 2889
Decision Date: 20 November 2014

CaseChat Overview and Summary

The appeal in Whyman v Police was brought by the appellant, Mark Frederick Whyman, against a sentence imposed by the District Court. The appellant had pleaded guilty to driving a motor vehicle while his licence was suspended. The District Court sentenced him to 80 hours of community work and disqualified him from driving for a period of one year and one day. The appellant appealed against the disqualification order, arguing that the court should have exercised its discretion under s 94 of the Land Transport Act 1998 to sentence him to a community-based sentence instead.

The court examined the relevant principles under s 94 of the Act, which allows the court to substitute a community-based sentence if it considers a further period of disqualification to be inappropriate. The court noted that the exercise of this discretion is a statutory one, and an appellate court may only disturb the decision in limited circumstances, such as where the Judge erred in principle or the decision was plainly wrong.

In considering the appellant's appeal, the court noted that the Judge had evaluated the factors set out in s 94(1)(b), but had not fully considered the appellant's employment situation in the context of the public interest. The court also observed that the Judge was mistaken when he believed the appellant was eligible to apply for a limited licence, as the appellant was precluded from doing so under s 103(2)(c) of the Act.

Taking these factors into account, the court decided to consider the matter afresh. While the first three factors listed in s 94(1)(b) favoured the imposition of a community-based sentence, the public interest played a crucial role in the decision. The court weighed the public interest in the appellant being permitted to continue working against the public safety issue arising from his previous history of speeding. Ultimately, the court decided that the scales remained tipped in favour of a community-based sentence when the public interest was taken into account.

Result: The appeal was allowed, and the order for disqualification was quashed. The existing sentence of community work was also quashed, and a new sentence of 200 hours community work was imposed in its place.

Orders