Wilson v Police - [2018] NZHC 880

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-078

[2018] NZHC 880

BETWEEN
DYLAN WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2018

Appearances:

J Harder for Appellant

M Mortimer for Respondent

Judgment:

1 May 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitor:
J Harder, Barrister, Auckland Crown Solicitor, Auckland

WILSON v NEW ZEALAND POLICE [2018] NZHC 880 [1 May 2018]

Introduction

[1] Dylan Wilson appeals the District Court’s refusal to substitute a community- based sentence in lieu of disqualification under s 94 of the Land Transport Act 1998 (the “LTA”).

[2] Mr Wilson was sentenced on 23 February 2018 by Judge Fraser in the Auckland District Court.1 He faced nine charges for offending ranging from drug possession, assault, non-compliance, and driving-related offending. That driving offending involved three charges:2

(a)driving whilst suspended (simpliciter), carrying a minimum period of compulsory disqualification of 6 months;3

(b)driving whilst suspended (aggravated), carrying a minimum period of compulsory disqualification of 12 months;4 and

(c)careless driving, allowing discretionary disqualification for such period as the court thinks fit.5

[3] He was sentenced to six months’ community detention and 15 months’ intensive supervision for all nine charges. In addition, for the driving charges Mr Wilson was: disqualified for the minimum period of 12 months for aggravated driving; disqualified for a concurrent term on the charge of driving whilst suspended (simpliciter); and convicted and discharged for the careless driving.

1      New Zealand Police v Wilson [2018] NZDC 4780 at [8].
2      The other charges were for: common assault and two charges of male assaults female (Crimes Act 1961, s 196, 194); possession of methamphetamine and of cannabis (Misuse of Drugs Act, s 7(1)(a)); and failing to answer bail.
3      Land Transport Act 1998, s 32(1)(c) and (3)(b).
4      Section 32(1)(c) and (4)(b).
5      Section 37(1) and (2)(b).

Factual background

The offending

[4] Mr Wilson has eleven previous convictions for driving offences, and has served previous disqualification orders between 2010 and 2014 for such offending. He has been granted substituted community-based sentences under s 94, both in 2011 and also for his most recent offending in 2014.

[5] The driving charges the subject of this appeal arise from offending on two separate occasions. The earlier offending was on 4 November 2016. Mr Wilson was stopped by a Police patrol vehicle and found to be driving while his licence was still suspended. The summary of facts does not record any attendant driving fault. Although laid in the simpliciter form, this was his eighth incident of driving whilst suspended, the seven previous incidents arising between April 2011 and February 2014.

[6] The later offending, on 5 March 2017, is considerably more serious. That evening Mr Wilson was driving a BMW car on State Highway 1 near Whakapara. He was seen overtaking dangerously on yellow lines, and around blind concerns, causing concerned drivers to flash their lights at him and call the Police. When Mr Wilson reached the Kamo bypass, he…

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.

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Details

Case: [2018] NZHC 880
Decision Date: 1 May 2018

CaseChat Overview and Summary

Dylan Wilson appeals the District Court's refusal to substitute a community-based sentence in lieu of disqualification under s 94 of the Land Transport Act 1998. Mr Wilson was sentenced on 23 February 2018 by Judge Fraser in the Auckland District Court. He faced nine charges for offending ranging from drug possession, assault, non-compliance, and driving-related offending. The driving-related charges involved three instances of driving whilst suspended and one instance of careless driving. He was sentenced to six months' community detention and 15 months' intensive supervision for all nine charges. In addition, for the driving charges, Mr Wilson was disqualified for the minimum period of 12 months for aggravated driving, disqualified for a concurrent term on the charge of driving whilst suspended (simpliciter), and convicted and discharged for the careless driving. The court was required to decide whether the Judge was wrong to find the interests of the public favoured a further period of disqualification, whether the Judge failed to take into account the sentence of community detention would keep Mr Wilson off the road during the high-risk evening hours, whether the Judge erred in considering there was no employment impacted by the disqualification and the likely effect of further disqualification was not more than "frustration", whether the Judge erred in failing to take into account the disqualification would mean Mr Wilson could not participate in a defensive driving course for a further 12 months, whether the Judge erred in finding community work was not a suitable substitute for disqualification, and whether the decision was plainly wrong. The court found that the appeal was declined. The Judge did not err in any of the specific ways mentioned above. The court's reasoning was that the public interest in keeping Mr Wilson off the road was somewhat reduced, as he had regained his license and was driving legally. However, the Judge did not err in finding the public interest still weighed in favour of disqualification. The appeal is declined.
The final orders are that the appeal is declined.

Orders