Wiseman v Police - [2014] NZHC 2327

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000218 [2014] NZHC 2327

UNDER The Criminal Procedure Act 2011

IN THE MATTER OF

An appeal pursuant to s 244 of that Act

BETWEEN

RONALD JAMES WISEMAN Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 September 2014

Appearances:

A J Beach for Appellant
S P H Elliott for Respondent

Judgment:

24 September 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 24 September 2014 at 1.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

WISEMAN v NZ POLICE [2014] NZHC 2327 [24 September 2014]

Introduction

[1] Ronald Wiseman pleaded guilty in the District Court at Waitakere to one charge of driving with excess breath alcohol (third or subsequent). Judge Glubb sentenced him1 to four months’ community detention and 12 months’ supervision and disqualified him indefinitely under s 65 of the Land Transport Act 1998.2 The Judge refused Mr Wiseman’s request for an interlock order under s 65A. Mr
Wiseman appeals that decision on the grounds that the Judge erred in failing to give any reason for this aspect of his decision and that such an order would be appropriate. There is no challenge to any other aspect of the sentence.

[2] Mr Elliott, for the Crown, accepted that the Judge had erred in not giving reasons for refusing the interlock order and that it was open to this Court to consider the matter afresh. The Crown abides the decision of the Court as to whether an interlock order is appropriate but does not seek to cross-appeal any other aspect of the sentence in the event that such an order is made.

[3] Mr Beach sought to adduce further evidence for the purposes of the appeal in the form of an affidavit by Mr Wiseman and one by his employer, Mr Hick. There was no objection. The affidavits are clearly relevant to the issues arising on the appeal and leave is granted to adduce the further evidence.

The offending and sentencing in the District Court

[4] On 25 October 2013 Mr Wiseman had been to a bar and was driving on State Highway 16 in Kumeu. He showed signs of alcohol intake. His breath was found to contain 685 micrograms of alcohol per litre of breath.

[5] Mr Wiseman has a significant history of alcohol-related driving offences dating back more than 30 years. In February 1977 he was charged with driving with an excess blood alcohol level (no level was recorded), fined and disqualified for 18 months. In April 1993 he was convicted of driving with excess breath alcohol, fined
and disqualified for seven months. In 1996 he was convicted of driving under the

1 NZ Police v Wiseman DC Waitakere CRI-2013-090-006361, 19 June 2013.
2 Section 65 imposes a minimum period of disqualification of 12 months.

influence of alcohol and disqualified indefinitely with special conditions. He was convicted in 2004 and 2005 of driving while disqualified. In January 2010 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.

Continue reading Wiseman v Police

Details

AGLC: Wiseman v Police [2014] NZHC 2327
Case: [2014] NZHC 2327
Decision Date: 24 September 2014

CaseChat Overview and Summary

Ronald Wiseman appealed a decision of the District Court in which the court declined to impose an interlock order on him for driving with excess breath alcohol. The District Court had sentenced him to four months of community detention, 12 months of supervision, and an indefinite disqualification from driving. The Crown conceded that the District Court had erred in not giving reasons for refusing the interlock order and that it was open to the High Court to consider the matter afresh. The Court accepted additional evidence in the form of affidavits from Wiseman and his employer. The Court found that an interlock order was appropriate in the circumstances, given Wiseman's history of alcohol-related driving offences and his current efforts towards rehabilitation. The Court quashed the District Court's order disqualifying Wiseman from driving indefinitely and made orders under s 65A(2) instead, disqualifying him from driving for three months, authorizing him to apply for an alcohol interlock licence immediately, and requiring him to drive only a vehicle to which an alcohol interlock licence was fitted while holding the interlock licence. The Court also quashed the confiscation order as it had not yet been executed.

This case highlights the importance of providing reasons for sentencing decisions and the need to balance deterrence and denunciation with rehabilitation and the least restrictive outcome appropriate in the circumstances. The Court's decision also emphasizes the importance of considering the specific needs and circumstances of the offender when imposing sentences.

Orders