B v Police HC Hamilton CRI 2007-419-66

[2007] NZHC 1187

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-066

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         1 November 2007

Counsel:         D Hall for Appellant

C D Bean for Respondent

Judgment:      2 November 2007

JUDGMENT OF WILD J

Introduction

[1]      The appellant pleaded guilty to a charge of operating a motor vehicle causing sustained loss of traction, an offence under s36A(1)(c) Land Transport Act 1998. The District Court Judge fined the appellant $500 and disqualified him from driving for six months.

[2]      The appellant appeals against the Judge’s refusal to exercise his discretion under s81 of the Act not to impose the otherwise mandatory period of disqualification.   A Judge can do that if he finds “special reasons relating to the offence”.

[3]      The basis for the appeal is that the guilty plea was entered only after the

Crown had agreed with counsel for the appellant that there were “special reasons

B V NEW ZEALAND POLICE HC HAM CRI 2007-419-066  2 November 2007

relating to the offence”.  Although the Judge had been informed of that ‘agreement’, he had no regard to it.

Background

[4]      On the night of 29 September 2006 the appellant was driving down Te Rapa Road in Hamilton which is frequented by boy-racer type vehicles.   Indeed, that evening there were about 100 such cars in the area, and between 100-150 pedestrians assembled to watch them.  The Police accept that the appellant was not part of that group of boy-racers.

[5]      As the appellant approached a roundabout his car crossed a diesel spill on the road.  This diesel had undoubtedly been spilled deliberately by the boy-racers.  The diesel caused the appellant’s vehicle to slide.   He accelerated hard around the roundabout, travelling some 30 metres with his wheels spinning in a sustained loss of traction.

[6]      The appellant denied to the Police that this loss of traction was deliberate; he blamed it on the diesel spill on the road.  He accepted that, with hindsight, it might have been more sensible to take his foot off the accelerator, but he claimed his acceleration was an instinctive reaction when trying to control the slide or skid his car had gone into.

District Court judgment

[7]      The Judge acknowledged that the appellant was not one of the boy-racers who had congregated on Te Rapa Road.  But he observed that the appellant was well aware they were there, and he made it clear to the appellant that he considered there was an issue of road safety:

You drive like this on the road and you immediately put other people who are driving sensibly, at risk.

[8]      The two passages in the Judge’s sentencing notes particularly relevant to this appeal are these:

[3]       The driving that caught the attention of the Police was the fact that you went for 30 metres around this roundabout with your wheels spinning. You would have created smoke, there would have been a lot of noise and so on.   I have to say to you that I do not fully accept that this was simply a matter of you trying to control the skid because within that 30 metres there was plenty of opportunity for you to lift your foot off the accelerator and not to do what you did.  As I say, I am suspicious that this is a bit of a show for the boys out there on the road, and if you were not part of the group, you may still have been trying to prove something to them for yourself.

[4]       I do not fully accept your explanation. I am not inclined to consider that here is a case where you should be given the leniency of not losing your licence. I think the law requires that it is mandatory and you have not got special circumstances as I would expect them to be before the Court.  There is not enough here for me to do that. At some point in that 30 metre journey you must have realised what was going on and it was not a question of controlling your car.

The appeal

[9]      The ‘special reasons’ agreed by the prosecutor were that the appellant did not deliberately lose traction – he had kept his foot on the accelerator in an effort to regain control.   The nub of the appeal was that the Judge, also, ought to have accepted this, and thus erred in disqualifying the appellant from driving for six months.

[10]     The appeal came before Ronald Young J on 25 July.  The Judge pointed out that, if the appellant’s loss of traction was not deliberate as alleged, then he was not guilty of an offence under s36A.  The special reasons claimed were thus at odds with the appellant’s guilty plea.  Ronald Young J also pointed out that any ‘agreement’ between counsel for the appellant and the prosecutor in the District Court would not have bound the Judge, who had to make his own assessment and decision under s81. As it was not clear whether there was ‘agreement’ as to the existence of special reasons, Ronald Young J ordered that a transcript of the District Court hearing be obtained.

Submissions to me

[11]     With  the  benefit  of  the  District  Court  transcript,  Mr  Hall  was  able  to demonstrate that he had informed the Judge of the ‘agreement’, and to point out that

there is no record in the transcript of the prosecutor disagreeing with that.  For the Police, Mr Bean accepted that and informed me that the prosecutor now has no independent recollection of the hearing.

[12]     My  understanding  of  Mr  Hall’s  argument  is  that  the  appellant’s  loss  of traction:

•   Was deliberate in the sense that it was the result of his accelerating in an effort to control his car when it crossed the diesel spill on the road, and started skidding or sliding.

•   But was not deliberate in the sense that it was not a wilful attempt to show off to boy-racers and bystanders in Te Rapa Road, which is the gist of the s36A offence.

•  Thus, although the appellant’s driving involved poor technique and judgment, it did not involve culpability in terms of s36A.

•   The  Judge  erred  in  either paying no  regard  to  the  ‘agreement’  as  to special reasons, or (if he did) in rejecting that agreement out of hand.

[13]     Mr Bean’s position for the Police was that, notwithstanding the ‘agreement’, it was still for the Judge to exercise his s81 discretion if he saw fit, and he had not seen fit.

[14]     Even on the most sympathetic view, this appeal is hopelessly problematic. The problem is that the appellant’s version of events conflicts with his guilty plea. By entering a plea of guilty he accepted the essential elements of the charge:  that, without reasonable excuse, he operated his vehicle in a manner which caused it to lose traction.  If he lost traction purely as a consequence of his attempts to control his vehicle in a dangerous situation, this could not be said to be “without reasonable excuse”.  His plea indicates that, at the very least, he continued to operate his vehicle in this manner after it had become reasonable for him to have regained control of it.

The appellant cannot claim, as special reasons, the absence of an intention which is an element of the charge to which he pleaded guilty.

[15]     As the appellant did not give evidence, the Judge was guided by the Police summary of facts.  The summary stated:

…

The defendant was seen driving his vehicle under hard acceleration, the left wheel spinning in a sustained loss of traction, squealing and smoke coming from the tyre.

He went around the roundabout in this manner for about 30 metres before turning into Sunshine Avenue.

…

This was not disputed by the appellant.  Given his plea of guilty, the finding that the appellant was not trying to control his car for the whole of that time was the obvious inference for the Judge to draw.

[16]   It may seem somewhat harsh that the appellant is facing a six month disqualification, given that the Police accepted that he was not one of the boy-racers who had congregated for that purpose on the night in question, and that his initial loss of traction was unintentional.  But the fact is that the appellant pleaded guilty to the charge.  In doing so, he admitted that at some stage during the 30 metre skid, he deliberately and without reasonable excuse maintained a loss of traction.   People who plead guilty under s36A must expect, in the absence of other special reasons, to face the mandatory period of disqualification.

[17]     I  am  concerned  that  the  appellant  pleaded  guilty  in  reliance  on  the prosecution’s assurance that special reasons under s81 would be conceded, with the anticipated consequence that no disqualification would be imposed.   However, the decision whether or not to find the existence of special reasons is a decision for the Judge, not the prosecutor.   The appellant was legally represented and his counsel must have appreciated that.

[18]     Accordingly, I reject the appellant’s submission on this appeal that the Judge was plainly wrong to conclude that no special reasons existed under s81.

[19]     The appeal is accordingly dismissed.

Solicitors:

Crown Solicitor, Hamilton for Respondent