Berryman v Police

[2025] NZHC 386

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000139

[2025] NZHC 386

BETWEEN

DELAINE BERRYMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 February 2025
Appearances:	No appearance for Appellant C Megala for Crown
Judgment:	5 March 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 5 March 2025 at 3:00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:

Marsden Woods Inskip Smith, Whangarei

BERRYMAN v POLICE [2025] NZHC 386 [5 March 2025]

[1]    Delaine Berryman pleaded guilty to a charge of driving while disqualified (third or subsequent offence).1 On 2 December 2024, Judge G Tomlinson sentenced him to 180 hours of community service and disqualified him from holding or obtaining a driver’s licence for a period of 12 months.2 Mr Berryman appeals against the order for disqualification.

[2]    Mr Berryman is self-represented. In advance of the appeal, he filed only a one-page letter from his medical practitioner referring to unspecified health issues that necessitate him making medical appointments.

[3]    It became evident having heard from Mr Berryman at the appeal hearing that his complaint is that he understood that the Judge in the District Court at Whangārei was going to consider an application under s 94 of the Land Transport Act 1998, seeking substitution of a community-based sentence for the mandatory disqualification he received. No such application was made by Mr Berryman’s counsel.

[4]    Mr Megala for the Police acknowledged that remission to the District Court for resentencing was an appropriate course in the circumstances.

Background

[1]    Mr Berryman has three previous convictions for driving while disqualified, all from March 2024. He was disqualified from driving for six months. On 13 April 2024,  Mr  Berryman  was  stopped  by  Police  driving  in  Glenfield,  Auckland.  Mr Berryman was arrested for an unrelated matter. Police confirmed he was disqualified from driving.

[2]    On 27 May 2024, Mr Berryman pleaded guilty in the North Shore District Court to the charge of driving while disqualified (third or subsequent offence). It appears that at this point Mr Berryman had only a learner licence. His then counsel

1      Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty two years’ imprisonment or a fine not  exceeding  $6,000.  He  also  pleaded  guilty  to  one  charge  of  theft   ($500–$100),  Crimes Act 1961, ss 219 and 223(c). Maximum penalty one year imprisonment.

2      Police v Berryman [2024] NZDC 31892 [sentencing notes].

advised the Judge that Mr Berryman wished to make a s 94 application but needed time to obtain his restricted licence to put himself in a position to do so. The Judge scheduled sentencing to occur on 30 October 2024 and set a timetable for submissions on the s 94 application in advance of that date.

[3]    Mr Berryman obtained his restricted licence on 29 October 2024. In the interim, at his request, his matter was transferred to Whangārei District Court. Different counsel appeared for him at sentencing there on 2 December 2024. At the appeal hearing, Mr Berryman conveyed to me that he arrived at court with his restricted licence and (consistent with the May 2024 hearing) he thought he was not going to be disqualified now he had his licence. He said he was late arriving in the courtroom because he went to the wrong court.

[4]No application under s 94 application was made on his behalf.

Decision

[5]    This Court has the power to consider an application under s 94 if the issue has not been addressed in the District Court.3 The Court may exercise the s 94 discretion itself or quash the sentence and remit the matter to the District Court for further consideration.

[6]    I am not sufficiently informed to consider an application to this Court under  s 94, even if it were correct for me to characterise Mr Berryman’s submissions to me in the appeal hearing as an oral application. The material before me is simply a one- page letter from Mr Berryman’s doctor and what Mr Berryman wanted to tell me about his personal circumstances. I am unable able to assess the weight of Mr Berryman’s statements presented to me in this way.

[7]    However, I am satisfied that Mr Berryman did not have an opportunity to advance an alternative application under s 94 in the District Court, in circumstances where he reasonably understood from his earlier appearance in May 2024 that an

1. Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006; McColl v Police

[2014] NZHC 702; Nair v Police [2014] NZHC 2859; Evans v Police [2018] NZHC 2660.

application was to be, or had been, made on his behalf. I consider he should have the opportunity to make such an application in the District Court.4

Result

[8]    The appeal is allowed. The order for disqualification is quashed. I make a direction under s 251(2)(c) of the Criminal Procedure Act 2011 remitting the proceeding to the District Court so that it can consider whether to impose a community-based sentence under s 94 of the Land Transport Act.

[9]    I direct Mr Berryman to file a formal application in the Whangārei District within 10 days of this decision together with the material he relies upon to support that application. Mr Berryman should be aware that he should provide the information he relies upon as justifying a community-based sentence in the form of an affidavit or statutory declaration for the District Court to consider it.

Anderson J

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]; Nair v Police [2014] NZHC 2859.