Wichman v The King - [2024] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000070

[2024] NZHC 1113

BETWEEN
MATTHEW WICHMAN

Appellant

AND

THE KING

Respondent

Hearing: 7 May 2024

Appearances:

E Butler and S Tang for Appellant J N Cassidy for Respondent

Judgment:

7 May 2024

ORAL JUDGMENT OF VENNING J

Solicitors: Kayes Fletcher Walker Ltd, Manukau Counsel: Public Defence Service, Auckland

WICHMAN v R [2024] NZHC 1113 [7 May 2024]

Introduction

[1] Matthew Wichman pleaded guilty to possession of methamphetamine for supply and a separate offence under the Land Transport Act 1998 (the Act) of refusing to undergo evidential breath procedures (having been previously convicted of two or more, related offences under the Act).

[2] On 30 January 2024, Judge G A Andrée Wiltens sentenced Mr Wichman to 12 months’ home detention and disqualified him from holding or obtaining a driving licence for two years from that date.1

[3]Mr Wichman appeals against the period of disqualification.

Relevant background facts

[4] The driving offending to which the disqualification applied occurred on 19 June 2022. On that day Mr Wichman was seen to be driving a Toyota car erratically. He was swerving within the lane from the curb to the centre line and the erratic swerving was accompanied by sudden changes in speed. When stopped by Police Mr Wichman refused to undergo evidential breath alcohol procedures and was subsequently arrested.

District Court decision

[5] In sentencing Mr Wichman in relation to the driving the Judge noted it was Mr Wichman’s fourth offence of its kind and, after allowing several discounts from the starting point for the drug and driving offending sentenced Mr Wichman to 12 months’ home detention. The Judge then also imposed the disqualification for two years.

Appeal

[6] In support of the appeal Mr Tang submits the Judge erred in disqualifying Mr Wichman for two years for the refusing breath charge. It is said that disqualification for that length of time was manifestly excessive.

1 New Zealand Police v Wichman [2024] NZDC 1863.

[7] A third or subsequent conviction for a number of drink driving related offences, including the recent offence Mr Wichman pleaded guilty to, requires a mandatory minimum disqualification of at least one year. Counsel submitted that a disqualification for a year and a day would reflect the aggravated form the charge is laid in and would also take account of the fact that a person such as Mr Wichman, who is disqualified for more than a year, must pass appropriate licensing tests and apply in order for the licence to have effect. They are not able to immediately reapply for a licence.

[8] In Mr Tang’s submission there was nothing in the present case which suggested a longer disqualification period than the minimum mandatory period was necessary. The two years imposed was inconsistent with other authorities for sentencing for this type of offending. Mr Tang referred in his submissions to a number of High Court decisions: Grant v Police; Duncan…

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 Wichman v The King

Details

AGLC: Wichman v The King [2024] NZHC 1113
Case: [2024] NZHC 1113
Decision Date: 7 May 2024

CaseChat Overview and Summary

Matthew Wichman appeals against a two-year disqualification from holding or obtaining a driving licence imposed by the District Court in Auckland. Mr Wichman pleaded guilty to possession of methamphetamine for supply and to refusing to undergo evidential breath procedures, having been previously convicted of two or more related offences under the Land Transport Act 1998. The District Court sentenced Mr Wichman to 12 months' home detention and disqualified him from holding or obtaining a driving licence for two years. The appeal focuses on whether the length of the disqualification was manifestly excessive.

The central issue in the appeal is whether the two-year disqualification period was an error of law and thus manifestly excessive. Mr Wichman's counsel argued that the disqualification period was too long, given the minimum mandatory disqualification of one year for a third or subsequent conviction of the offence and that the disqualification was inconsistent with other authorities on sentencing for this type of offence. Counsel cited several High Court decisions where disqualification periods of one year or slightly more were considered appropriate. The Crown opposed the appeal, arguing that the disqualification period was justified given Mr Wichman's extensive history of driving offences and the circumstances of the recent offence.

The court considered the principles governing disqualification periods, emphasizing that each case must be assessed on its own facts. The primary objectives of disqualification are public safety and preventing dangerous drivers from operating vehicles. The court noted that the extent of the sentencing Judge's discretion in setting disqualification periods is less fettered than in conventional sentencing, given these objectives. The court also noted that while long periods of disqualification typically leave little hope for offenders, it is the Court's duty to keep dangerous drivers off the road for as long as reasonably possible. The court held that the sentencing Judge was entitled to consider Mr Wichman's extensive history of driving offences and the circumstances of the most recent offending in determining the appropriate disqualification period.

After considering Mr Wichman's history of driving offences, which began in 2002 and included multiple convictions for excess breath alcohol and driving while disqualified, the court found that the two-year disqualification was not manifestly excessive. The court found that Mr Wichman's history of repeated driving offences, including driving while disqualified, supported a longer disqualification period than the minimum mandatory one year. The court also found that the circumstances of the most recent offending, where Mr Wichman drove erratically while on bail for methamphetamine possession, supported the two-year disqualification period. The court held that the disqualification period did not leave little hope for Mr Wichman and that public safety considerations justified the length of the disqualification.

For these reasons, the appeal was dismissed.

Orders