Wichman v The King
[2024] NZHC 1113
•7 May 2024
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 v Police; McNab v New Zealand Police; Woolston v New Zealand Police; Hayde v New Zealand Police; and Nguyen v New Zealand Police.2
[9] In Grant v Police the Court noted one of the primary purposes for disqualification is public safety but that must be weighed against the fact that long periods of disqualification can leave little hope for an offender. In Duncan the Court held that disqualification orders should be kept as short as possible in relation to the achievement of the underlying end of road safety.
[10] Perhaps the closest case is that of McNab. In that case the appellant appealed a sentence of driving with excess breath alcohol, on a third and subsequent offence and the initial disqualification for two years. Justice Goddard allowed the appeal. She held a period of one year and one day was sufficient in McNab’s case. She highlighted that as the appellant was disqualified for over a year he would have to complete approved tests before being able to reapply. The Judge considered that to be of greater importance to the sentence than the length of disqualification, a point which Mr Tang has emphasised in his submissions this afternoon.
2 Grant v Police [2017] NZHC 953; Duncan v Police HC Christchurch CRI-2003-409-000034, 17 July 2003; McNab v New Zealand Police [2014] NZHC 1493; Woolston v New Zealand Police [2013] NZHC 3225; Hayde v New Zealand Police [2021] NZHC 3218; and Nguyen v New Zealand Police HC Auckland CRI-2006-404-000370.
[11] Mr Tang also noted that, as compared to other cases, including Nguyen, where the appellant had been charged with dangerous driving, Mr Wichman did not face any separate or additional charge to the charge of failing to give a breath sample.
[12] In addition, Mr Tang also noted that Mr Wichman would be required to undertake rehabilitative programmes as part of the home detention sentence to address his underlying causes of offending, so that in all the circumstances the disqualification for two years was manifestly excessive as it failed to take into account the offending and personal factors of Mr Wichman. A disqualification for one year and one day should be substituted.
Respondent’s position
[13] The respondent opposes the appeal. The respondent sought to introduce as evidence on the appeal Mr Wichman’s demerit point history. Mr Tang opposed that. While the evidence is reliable, it is not fresh evidence as it could have been adduced before the sentencing Judge as Mr Tang submitted. Further, it substantially relates to speeding offences and operating an unlicensed motor vehicle. There is only one conviction relevant to breath alcohol matters and in that case, while Mr Wichman had exceeded 250 mcgs he had not exceeded the 400 mcgs level. I decline to admit the further demerit point history as lacking the necessary cogency for admission.
Principles
[14] As a sentence appeal this Court must allow the appeal if satisfied that if, for any reason, there was an error in the sentence imposed and a different sentence should be imposed. In Tutakangahau v R3 the Court of Appeal confirmed the previous approach to sentence appeals still applied. It is for the appellant to identify an error, and this Court as an appeal court must be satisfied a different sentence should be imposed. While the Criminal Procedure Act 2011 (CPA) makes no express reference to the concept of manifestly excessive or inadequate sentences the concepts are longstanding, consistent with the statutory language and should continue to be applied.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 2014 NZCA 279.
Analysis
[15] While I acknowledge the applicable principles in the authorities that Mr Tang referred to, each case must of course turn on its own facts. A comparison with other cases is perhaps of less assistance in cases involving disqualification periods. I note for example in McNab, Goddard J referred to two other decisions where disqualification for two years had been upheld on appeal.
[16]In Leaupepe v New Zealand Police MacKenzie J noted:4
[8] The principle objective of disqualification is public safety. Many of the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 can have little application when assessing the length of disqualification and others must receive limited weight because of public safety concerns.
[9] The extent of the discretion available to the sentencing Judge is, for these reasons, less fettered than that in respect of a conventional sentencing decision. A comparison with other cases is therefore a less reliable guide than is the case for a conventional sentencing.
[10] The Court of Appeal has provided some guidance to when a period of disqualification will be manifestly excessive. In Hitchens v Police the Court noted two competing considerations. competing considerations.
(a)long periods of disqualification typically leave little hope for offenders; and
(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.
[11] The task of the sentencing Judge, and an appellate Court on review, is to effect an appropriate balance between those considerations. The fixing of that balance depends upon the circumstances of the particular case.
[17] In Leaupepe MacKenzie J, considered the public safety and the need to keep Mr Leaupepe off the road for as long as reasonably possible weighed heavily in the balance. The period of five years’ disqualification was not, in the circumstances, manifestly excessive.
[18] To the extent that Judge Andrée Wiltens did not expressly articulate why two years was the appropriate disqualification period, in Ropiha v Police the Court noted:5
4 Leaupepe v New Zealand Police [2015] NZHC 1766, citing Hitchens v R CA380/03, 25 March 2004.
5 Ropiha v Police [2016] NZHC 839 at [25].
[25] The exercise on appeal is not in any event thwarted by the lack of more particularised reasons. This Court will consider the sentence against its own conclusion as to the range of sentence available. The Appellant must show that the sentence was, in the result, “manifestly excessive”.
[19] In this case Mr Wichman’s consistently poor history of driving offending is relevant to whether the disqualification of two years can be said to be manifestly excessive.
[20] At the age of 42, Mr Wichman started his driving offending at the age of 22 in 2002 with an excess breath alcohol conviction. Less than two months after that offending and within a month of conviction for it, he offended again by driving while disqualified. At the same time he registered a second excess breath alcohol conviction. Then six years later in 2008, he was convicted of exceeding 50 km/h and fined $700, which is a steep fine for such offending.
[21] In 2012 Mr Wichman was convicted of driving with excess breath alcohol (third or subsequent offence). At that time he was disqualified for one year and one day. Again within a month of that offending he drove whilst disqualified. Then in December 2019 I note he exceeded 80 km/hr in a gazetted area and was convicted for that offending.
[22] Given that background Mr Wichman can properly be described as a recidivist offender when it comes to driving offences and particularly in relation to failing to comply with orders of the Court in relation to driving.
[23] The circumstances of the most recent offending are also in my view a relevant consideration. The offending occurred while Mr Wichman was on bail for his methamphetamine offending. He was in breach of his bail conditions at the time of the driving offending. Further, while as Mr Tang submitted, he does not face further charges in relation to the driving the erratic manner of his driving brought him to the attention of the Police. It is not as though he was simply stopped at a random stop.
[24] I consider this case to be different to that of McNab. In McNab, Goddard J noted that the breath alcohol level was not “excessively” high and that the disqualification would impose difficulties for Mr McNab’s employment. By contrast,
in the circumstances of Mr Wichman’s offending and Mr Wichman’s personal circumstances I consider the disqualification of two years was well open to the Judge. Mr Wichman refused to provide a specimen and there is no suggestion of any employment related hardship. The disqualification of two years cannot be said to be of such a length as to leave little hope to Mr Wichman. Further, as Ms Cassidy noted, for 12 months Mr Wichman will, in any event, be subject to the home detention sentence and unable to drive. For that reason a period of two years’ disqualification is also supported on that basis. Finally, public safety considerations also support the disqualification given Mr Wichman’s past history.
Result
[25]For those reasons the appeal is dismissed.
Venning J
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