A v Police HC Christchurch CRI 2007-409-157

[2007] NZHC 931

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000157

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 September 2007

Counsel:        J J Brandts-Giesen for Appellant

D Jackson for Respondent

Judgment:      20 September 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of two  months disqualification from driving for exceeding the speed limit on the open road.   On 4 June 2007 at Craigieburn  the  appellant  was  checked  by  a  laser  travelling  at  a  speed  of

162 kilometres per hour.  He was stopped, suspended from driving for a period of

28 days and escorted to his home address by a constable.

[2]      Inevitably, a notice of prosecution for a minor offence followed.   That was dealt with by Justices of the Peace on 12 July.  They fined the appellant $630 and disqualified him for a period of two months from 1 August, noting on the notice of

prosecution “Roadside suspension taken into account”.

A V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000157  20 September 2007

[3]      The  appeal  is  not  directed  to  the  fine.    Nor  can  it  be  to  the  period  of suspension which is automatic and which, in any event, has already been served. The sole focus is the addition of two months disqualification.   Mr Brandts-Giesen argues that the additional term is clearly excessive, that it should be quashed or, at the very least, that it should be deferred for a period of a month to enable a limited licence application to be made.

[4]      In entering a plea of guilty the appellant wrote a three page letter to the Court which, amongst other things, explained his business situation.  He has established a business which provides a product designed to address leaky building syndrome and for that reason he is highly dependent upon his licence for extensive travel in the course of work.

[5]      To my mind there are a number of difficulties in relation to the Justices’ decision.  First of all the notice of prosecution contains at its foot “speed checked by laser at 162 km/h.  Nil explanation” and in the body of the notice there is reference to a summary of facts signed by the informant, but that reference has been deleted. This indicates to me that there was not a summary of facts provided to the Justices.

[6]      However, this morning Mr Jackson has been able to  provide one which, amongst other things, confirms the fact of the suspension, but does not describe the circumstances of the offence beyond the bare description already contained in the notice of prosecution.  I had supposed that the Justices must have seen the summary of  facts,  but  I  now  think  they  did  not.    They  would  have  been  aware  of  the suspension as a matter of course.

[7]      This,  it  seems  to  me,  raises  the  question  whether  the  Justices  could  be satisfied that the offence relates to “road safety” as that phrase is used in s80 of the Land  Transport  Act  1998.   This  is the  essential difference  in  the  arguments of Mr Brandts-Giesen and Mr Jackson.   Mr Brandts-Giesen said that the bare fact of excessive  speed  did  not  establish  a  road  safety  issue.    Whereas,  Mr  Jackson contended that the speed here was such that road safety was necessarily at stake.

[8]      I incline to the view that Mr Jackson is probably right.  That said, the fact is that there is no information on the notice of prosecution which gives any colour to the bare fact that this was a laser checked reading of 162 kilometres per hour.  On what basis the Justices could be satisfied that the 28 day suspension was inadequate and that a further two months disqualification was required I do not know.

[9]      Mr A   does have four previous speeding convictions in the period 1997 to 2006.  I assume that they were before the Justices.  Even so, given the features to which I  have  just  referred,  I  am not  confident  that  the  decision  to  impose  the additional two month disqualification beyond the period of suspension was justified. Very little information was provided to the Justices concerning the circumstances of the  offence  and  in  my  view  the  added term was  excessive,  and  it  is  therefore quashed.

[10]     It follows, of course, that the fine of $630 will remain.  As to that I note that the summary of facts noted that the checked speed was 12 kilometres outside the infringement fee range of $630 and, of course, the period of suspension remains, but

it has already been served in any event.

Solicitors:

Brandts-Giesen McCormick, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent