A v Police HC Wellington CRI 2009-435-7

[2009] NZHC 2367

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-435-7

BETWEEN  A

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 November 2009

Counsel:         P Broad for the Appellant

I Murray for the Respondent

Judgment:      24 November 2009

ORAL JUDGMENT OF MILLER J

[1]      Mr A   appeals against a sentence of three months disqualification and a $100 fine imposed in the District Court at Masterton for driving contrary to the condition of a learners licence, in that he was not accompanied by a fully qualified driver:  s 31(1)(b) Land Transport Act 1998.  The maximum penalty is a $1,000 fine. The disqualification was imposed under s 80 of the Act, which provides that the Court may disqualify an offender from holding or obtaining a driver’s licence for such period as the Court thinks fit, if the Court is satisfied that the offence relates to road safety.

[2]      The facts are that at about 2pm on 5 August 2009 Mr A   drove a Nissan car on Renall Street in Masterton.   He was stopped because his vehicle displayed a cardboard registration plate.  The police found that he held a learner’s licence which he had been granted in June 2005.  He had a passenger, who did not hold a valid driver’s licence.  Accordingly, he was in breach of one of the conditions

of the learner’s licence.

A V NEW ZEALAND POLICE HC WN CRI 2009-435-7  24 November 2009

[3]      Mr A   has breached the terms of his learner’s licence no less than 40 times, typically by driving unaccompanied or failing to display an L plate.  He has been caught speeding once.   He also has a number of convictions.   They include operating a motor vehicle causing sustained loss of traction, driving with excess breath alcohol, driving having been ordered not to do so, failing to stop after an accident, careless use of a vehicle, and a variety of convictions for breach of community work, assault, failure to answer bail, and obstructing the police.

[4]      In the District Court, the police submitted that the offence relates to road safety because he has never been assessed on his practical driving ability.   A disqualification was sought because the police submitted that there is a growing trend among learner drivers to breach driving conditions and ignore infringement notices.

[5]      Mr A   appeals on the grounds that the Justices erred in holding that the offence pertains to road safety and a sentence of three months disqualification is excessive in the circumstances.

[6]      The  submission  that  the  offence  does  not  relate  to  road  safety  may  be disposed of shortly.  Such offences are not confined to actual driving conduct.   In Husband v Napier City Council [1979] 1 NZLR 317, the Court of Appeal held that:

It may be said at once that the concept within s 30(4) of an offence that "relates to road safety" is not easy to get within practical boundaries. The Transport  Act  as  a  whole  is  obviously  very  much  concerned  with  road safety. Where should the line be drawn? If the subsection were to extend automatically to every one of the many provisions of the Act and the regulations made under it that are designed either directly or indirectly to promote safety on the road, then its scope would be all embracing. That cannot be the intention. On the other hand if its application were restricted to actual driving conduct or to what might be spelled out of the formal words of the charge that produced a conviction, then some kinds of conduct of quite a bad kind which clearly would seem to have affected road safety albeit indirectly, would be outside the disqualification provision.

[7]      I have no doubt that this offence relates to road safety.  There was no driving fault,  but  the  policy  of  the  legislation  is  that  drivers  must  have  passed  both theoretical and practical driving tests before they may drive unaccompanied by a fully licensed driver.   The qualified driver’s task is to supervise a learner whose

practical skills have not been tested, and so ensure that the vehicle is operated safely and lawfully.  The legislature’s purpose in imposing these requirements was plainly that of ensuring road safety.  Any breach affects road safety by creating an enhanced risk of unsafe driving.   A further consideration in Mr A  ’s case is that his driving record is very poor, suggesting that his driving skills, notably his judgement, are indeed sub-standard.

[8]      Mr Broad referred me to s 18 of the New Zealand Bill of Rights Act, arguing that in light of that section, I should not follow the authorities of which Husband is the  leading  example.    However,  he  was  unable  to  cite  any  authority  for  the proposition that loss of a driver’s licence is a restriction on the freedom of movement in New Zealand.  Mr A   remains free to go wherever he pleases, whenever he pleases.   The only authority which counsel could cite related to the stopping of a driver at a roadblock:   Kerr v Attorney-General [1996] DCR 951.   Still less was counsel able to find support for the argument that disqualification in circumstances such as the present is a disproportionate constraint on liberty.

[9]      So far as the period of disqualification is concerned, it is if anything lenient. Disqualification is, I accept, a considerable inconvenience for Mr A  , who evidently cares for a child, but he has a bad driving record and persistently ignores the requirements of his learner’s licence.   The matter could not be dealt with sufficiently by way of a fine;  Mr A   already has fines of $1,700 outstanding, some $13,310 having been remitted in October 2009 for 130 hours community work, and there is no reason to suppose that the fine will be paid.

[10]     The appeal is dismissed.

Miller J

Solicitors:

WCM Legal, Carterton for the Appellant

Crown Solicitor’s Office, Wellington for the Respondent