Wilson v Police - [2014] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2014-454-12 [2014] NZHC 3028

BETWEEN
NICKY LEE WILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 November 2014

Counsel:

J B McVay and G Gimblett for appellant
N J Wynne for respondent

Judgment:

1 December 2014

RESERVED JUDGMENT OF DOBSON J

[1] On 27 August 2014, Mr Wilson was sentenced by Judge G M Ross in the District Court at Levin on his 17th conviction for driving whilst disqualified. He was sentenced to seven months’ imprisonment and disqualified from holding or obtaining a driver’s licence for a further period of 12 months from 1 December 2014 when the period of an earlier disqualification will expire.

[2] Mr Wilson has appealed that sentence, principally on the ground that the Judge was wrong to reject the opportunity available to him to use s 94 of the Land Transport Act 1998 (the Act). That section authorises the Court, in certain circumstances, to substitute a community-based sentence and not impose the otherwise mandatory disqualification from holding a driver’s licence.

[3] Mr Wilson was stopped whilst driving a vehicle in Levin at 9.30am on a Saturday morning after he had failed to give way to a young girl on a pedestrian crossing. He was a disqualified driver at the time and was charged accordingly. No
other charge was laid in relation to his driving conduct at the time. Mr Wilson’s

WILSON v POLICE [2014] NZHC 3028 [1 December 2014]

criminal record reflects only a small number of other driving offences, relative to the

17 convictions for driving whilst disqualified that he has accumulated at the age of

30. There is, in addition, something of a pattern of failing to comply with Court orders and breaches of a protection order, but little else.

[4] The pre-sentence report advised that Mr Wilson suffered a head injury when he was eight years old, which the Judge accepted had an effect on his cognitive ability. The report stated that Mr Wilson knew that he was doing wrong, but the Judge accepted that whilst he appreciated that, there was a lack of mental commitment to stop him going on and driving. The pre-sentence report included the following:

Mr Wilson is assessed as being at high risk of further offending and at medium risk of harm to the community. He is identified as a recidivist offender with a low level of motivation to address his offending behaviours. On previous sentences Mr Wilson has been offered treatment with the Departmental Psychologist. Community Probation records show that Mr Wilson has initially engaged in the intervention then later disengages with no progress made. Mr Wilson does not present as motivated to address his cognitive distortions.

[5] Mr Gimblett submitted that the Judge was overwhelmed by the number of prior convictions for driving whilst disqualified, and failed to look past that feature when other considerations justified dealing with Mr Wilson under s 94.

[6] Section 94 provides as follows:

94 Substitution of community-based sentences

(1)…

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: [2014] NZHC 3028
Decision Date: 1 December 2014

CaseChat Overview and Summary

In Wilson v Police, the appellant, Nicky Lee Wilson, appealed against his sentence of seven months’ imprisonment and a 12-month disqualification from holding or obtaining a driver’s licence, imposed by the District Court at Levin for his 17th conviction for driving while disqualified. The appeal focused on whether the sentencing Judge erred in failing to apply s 94 of the Land Transport Act 1998, which allows the Court to substitute a community-based sentence in certain circumstances instead of imposing a disqualification from holding a driver’s licence. The appellant's counsel argued that the Judge was wrong to reject the opportunity to use s 94, particularly considering the appellant's cognitive difficulties and relatively benign driving history aside from the disqualified driving convictions.

The court needed to decide whether the Judge had erred in not applying s 94 and, if so, whether that error warranted altering the sentence. The key legal issue was whether the appellant's circumstances justified substituting a community-based sentence under s 94. The court considered whether the appellant’s repeated offending, cognitive issues, and compliance with previous sentences were sufficient grounds to invoke s 94. The court also examined whether the appellant had shown any commitment to change his behaviour or comply with a community-based sentence.

The High Court reviewed the sentencing process and concluded that while the Judge's emphasis on the number of prior convictions could be criticised as mechanical, the court’s overall assessment aligned with the Judge's conclusion. The court found that the appellant had not demonstrated any commitment to change his behaviour, and his compliance with previous community-based sentences was questionable. Given these considerations, the court upheld the District Court's sentence, dismissing the appeal.

Orders