Wineera v Police - [2023] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000074 CRI-2023-404-000075

CRI-2023-404-000076 [2023] NZHC 1149

BETWEEN
JORDON WINEERA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 April 2023

Appearances:

S J Galler for Appellant

C L Wilkinson for Respondent

Judgment:

12 May 2023

JUDGMENT OF VAN BOHEMEN J

[Appeal against sentence]

This judgment was delivered by me on 12 May 2023 at 4:00 pm

Registrar/Deputy Registrar Date……………………………..

Counsel/Solicitors:
Crown Solicitor, Auckland S J Galler, Auckland

WINEERA v NEW ZEALAND POLICE [2023] NZHC 1149 [12 May 2023]

[1] Jordan Wineera appeals, out of time, a decision given on 4 April 2019 in the District Court at Auckland under s 52A of the Land Transport Act 1998 disqualifying him from holding or obtaining a driver’s licence for two and a half years.

[2]Mr Wineera’s period of disqualification comprised:

(a)a period of six months commencing 4 April 2019 upon conviction of two charges of reckless driving and one charge of dangerous driving;

(b)a period of two years commencing 4 October 2019 upon conviction of three charges of failing to stop for red and blue lights.

[3] The three failing to stop charges relate to three different sets of circumstances occurring on 27 December 2018, 30 December 2018 and 27 January 2019. The two charges of reckless driving and the charge of dangerous driving each relate to one of those sets of circumstances.

[4]Mr Wineera was convicted and sentenced on all charges on 4 April 2019.

[5] Section 52A was inserted into the Land Transport Act 1998 by the Land Transport Amendment Act 2017.1 The section came into force on 11 August 2017.2

[6]The section provides:

52A Contravention of section 114

(1)A person commits an offence if the person –

(a)is the driver of a vehicle that fails to stop –

(i)as soon as practicable when signalled or requested to stop under section 114(1); or

(ii)when required to stop under section 114(2); or

(b)is the driver of a vehicle that is stopped and fails to remain stopped in accordance with section 114(2A) or (3)(a); or

1 Land Transport Amendment Act 2017, s 41.
2 Section 2(3). The date of assent was 10 August 2017.

(c)fails or refuses to provide information or provides false or misleading information in response to a demand for information made by an enforcement officer under section 114(3)(b).

…

(3)If a person is convicted of a first offence against subsection (1)(a) or
(b) and committed the offence while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver license for 6 months.

(4)If a person is convicted of a second offence against subsection (1), a court must order the person to be disqualified from holding or obtaining a driver license for 1 year.

(5)If a person is convicted for a third or subsequent offence against subsection (1), –

(a)the maximum penalty is…

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 Wineera v Police

Details

AGLC: Wineera v Police [2023] NZHC 1149
Case: [2023] NZHC 1149
Decision Date: 12 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Jordan Wineera appealed a decision from the Auckland District Court that disqualified him from holding or obtaining a driver's licence for two and a half years. The District Court's decision was based on Wineera's convictions for multiple charges, including reckless driving, dangerous driving, and failing to stop for red and blue lights. Wineera's appeal centred on the interpretation of section 52A of the Land Transport Act 1998, which mandates escalating penalties for subsequent offences. He argued that because he had not been convicted of a first offence when the subsequent offences were committed, the penalties should not have escalated.

The court considered the legal principle that a subsequent offence, under statutes providing for escalating penalties, must be committed after conviction of a prior offence for the penalties to apply. This principle was established in cases such as R v South Shields Licencing Justices and R v Wain. Based on this reasoning, the court found that the two-year disqualification imposed on Wineera was incorrect. It determined that each of Wineera's offences should be treated as a first offence, resulting in a cumulative disqualification period of 18 months.

The High Court allowed Wineera's appeal, quashing the two-year disqualification and substituting it with an 18-month disqualification. The court also ordered that Wineera's criminal and traffic history be adjusted accordingly, and the commencement dates of his subsequent licence disqualification periods be revised.

Orders