B v Police HC Palmerston North Cri-2007-454-18

[2007] NZHC 1231

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2007-454-000018

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 October 2007

Counsel:         O S Winter for Appellant

B D Vanderkolk for Respondent

Judgment:      9 November 2007

JUDGMENT OF WILD J

Introduction

[1]      Ms B   appeals against the sentences imposed on her in the District Court at Palmerston North on 24 April.  Having pleaded guilty and been convicted of careless driving causing injury (three charges) the Judge fined Ms B   $750 and ordered her to pay reparation totalling $3,000.  Because Ms B  ’s carelessness injured three victims she faced three separate charges, so the Judge ordered her to pay three sets of Court costs.  In total, she was ordered to pay $4,140, comprising three fines, three reparation orders and three sets of Court costs.

Background

[2]      On the afternoon of Wednesday 24 January 2007 Ms B   was driving east on State Highway 56.  She was travelling behind a truck.  Although not stated in

B V NEW ZEALAND POLICE HC PMN CRI-2007-454-000018  9 November 2007

the summary of facts, Mr Winter informed me that it was raining.  As the vehicles approached the intersection with Tiakitahuna Rd, the truck signalled a left turn and pulled over into the turning lane.   This left the “ahead” lane clear.   Too late, Ms B   became aware that a vehicle was stopped in the lane ahead waiting to turn right into Jackey-town Rd.   Ms B   was unable to stop in time or avoid this vehicle by passing on its inside, although photographs shown to me by Mr Vanderkolk seemed to indicate that there was adequate room to do so.

[3]      Ms B   collided with the rear of the stationary vehicle ahead, shunting it into the path of an oncoming vehicle, a small car.

[4]      The result of the three car collision was injury to three occupants of the other two vehicles, serious in the case of the two occupants of the small oncoming car. These two crash victims were hospitalised, one for a lengthy period.

[5]      The  Judge  had  victim  impact  reports  but  not  reparation  reports.    His reparation order was based on the victim impact reports he had.

[6]      Although counsel told the Judge that Ms B   is a student, and I am told also informed him of her financial position, the detail is not recorded in his decision. I therefore do not know to what extent the Judge grasped the detail of Ms B  ’s financial position.   This was no doubt one case of many in the Judge’s list that morning.

[7]      Ms B  ’s position is that she is completing a degree in veterinary science at Massey University.  By the time she completes her degree at the end of next year she will have a student loan of approximately $30,000.  Apart from this loan, she is being financially supported by her husband whose salary is between $41,000 and

$49,000.    The  couple  own  their  home,  in  which  they  have  an  equity of  about

$40,000.  In short, they are in modest financial circumstances.

The reparation reports

[8]      Having heard counsel’s submissions on 5 October, I called for the reparation reports the Judge did not have.  In terms of expenses the victims will have to meet out of their own pockets, these reports show:

•   Victim  Mrs  Smith:     She  did  not  respond  to  the  letter  requesting information from her for preparation of a reparation report.  She was the owner of the Toyota Hilux Surf – the vehicle Ms B   collided with from behind.  The Toyota was written off, because the cost of repairing it exceeded its value.   The documentation made available to me by Mr Winter indicates that Mrs Smith was insured.  I do not know the excess on her policy, if indeed there was one.

•   Victims Mr and Mrs Goyne:  Mrs Goyne was one of the two occupants travelling in the small car which  collided  head  on  with  Mrs  Smith’s vehicle after it was shunted across the centre line of the road.  Mrs Goyne was  badly  injured.     Her  husband  totals  is  out-of-pocket  travelling expenses to visit Mrs Goyne while she was in hospital at $1,429.28.

•   Victims Mr and Mrs Toneycliffe:  They are in the same position as the Goynes, save that Mr Toneycliffe assesses his travelling expenses over the quite lengthy period his wife was in hospital at $3,000.

The fine

[9]      Ms B   was careless in that she was unable to stop within the clear road ahead.  I need not speculate on the reason(s) for that.

[10]     The usual consequence of failing to stop is a “tail end” type collision.  What occurred here, although unusual, was not unforeseeable.   But I accept that the consequences of Ms B  ’s carelessness were disproportionate to the degree of her carelessness.

[11]     The maximum fine Ms B   faced was $4,500.  The $750 fine ($250 on each charge) the Judge imposed was 17% of that maximum.  Whilst a lower fine was a sentencing option, I cannot regard a $750 fine as manifestly excessive, given the degree of carelessness involved here.

Reparation

[12]     I have set out in 0 the out of pocket expenses the three victims faced.

[13]     Against those losses, and remembering that two of the victims sustained significant pain and anguish, and both they and their respective husbands also disruption, inconvenience, expense and general loss of enjoyment of life, $1,000 per victim is little more than a token payment, viewed from the victims’ viewpoint.

[14]     Ms B  ’s viewpoint needs to be considered.  Section 35 Sentencing Act requires this, and it is anyway but common sense.  The Judge was not aware in detail of Ms B  ’s financial situation.   He accepted that her “circumstances are not propitious  at  the  present  time”,  but  added  that  he  did  not  have  “full  details”, accepting “that it would be unlikely that (Ms B  ) would be able to meet all (the victims’) losses and costs to a full and true measure”.

[15]     A total financial impost of $4,140 on a university student dependent on a student loan and her husband is substantial.  Mr Winter submitted it was essentially a penalty imposed on Mr B  , because he is the only one able to pay, yet is blameless.

[16]     I accept that, but of course the three victims were equally blameless, not to mention their husbands and partners who have incurred substantial out of pocket expense in visiting and caring for them.

[17]     In contending that the fines should be quashed and the reparation orders reduced, Mr Winter placed heavy reliance on the decision of Asher J in Qu v Police HC AK CRI-2006-404-000222 10 November 2006.  I regard the factual distinctions between Qu and this case as sufficient to render it of no assistance to Mr Winter.  Mr

Qu was driving an Auckland passenger bus.  He was “flashed” through a turn at an intersection by another, on-coming, bus driver.   As Mr Qu turned, his bus hit and knocked over a cyclist, badly injuring him.  The sentencing Judge did not fine Mr Qu, but ordered him to pay reparation to the injured cyclist in the total sum of

$5,590, at the rate of $50 per week.  Mr Qu unsuccessfully appealed the reparation order on the ground of hardship.  Drawing something of an analogy with the factual situation in Qu, Mr Winter submitted the truck ahead of Ms B   had impliedly signalled to her that the road ahead was clear, by pulling over to the left.  However, by producing to me a series of photographs of the crash scene, Mr Vanderkolk convincingly demonstrated that the truck had moved out of the “ahead” lane and into the separate, left-turning lane.  Qu does not assist Mr Winter.   The outcome there was rightly termed by Asher J lenient and merciful.  Lenience in one case does not assist in proving manifest excess in terms of penalty in another, factually different case.

[18]     When I stand back and look at the level of carelessness involved here, at the dire  consequences  it  had  for  the  victims,  particularly  the  Goynes  and  the Toneycliffes, I cannot view the sentences under appeal as manifestly excessive, with the exception of the reparation order in favour of Mrs Smith.  I will come back to that.  I accept that those sentences represent a substantial burden on Ms B  , but I think not one out of all proportion to her culpability and its consequences.

[19]     Because there is no information before the Court indicating what loss, if any, was sustained by Mrs Smith, I quash the reparation order in her favour.  Now that the Court has details of the out-of-pocket expenses sustained by the Goynes and the Toneycliffes, I intend increasing the reparation orders in their favour.   I make the point that those are out-of-pocket expenses, and do not address the physical harm and the consequent pain, suffering and inconvenience sustained by both Mrs Goyne and Mrs Toneycliffe.

[20]     I  quash  the  two  reparation  orders  in  favour  of  Mrs  Goyne  and  Mrs Toneycliffe respectively, and substitute an order in favour of both Mr and Mrs Goyne in the sum of $1,500, and one in favour of both Mr and Mrs Toneycliffe, also in the sum of $1,500.  I am doing that because both husband and wife combinations

can receive reparation for both out-of-pocket expense, and the two women injured also for emotional harm (i.e. pain and suffering).

Court costs

[21]     The one thing I can properly do for Ms B   is in respect of Court costs. The Judge ordered her to pay Court costs of $130 on each of the three charges. While the Police were correct in laying a separate charge in respect of each of the three victims injured, I consider justice is done by ordering Ms B   to pay only one set of Court costs.  Accordingly, I set aside the Judge’s order as to Court costs and substitute an order that Ms B   pay Court costs in the total sum of $130.

Result

[22]     I have considerable sympathy for Ms B  .  A driving lapse has cost her dearly.  But I reiterate that I am unable to view the total fines ($750), and the total reparation orders ($3,000) made by the Judge, as adding to sentences which were manifestly excessive.

[23]     Given the reparation reports which I have received, but the Judge did not have, I have substituted the reparation orders detailed in [20] above, for those made by the Judge.  The total reparation is unchanged.

[24]     I have also set aside the Court costs he ordered, and substituted an order that

Ms B   pay Court costs in the total sum of $130.

[25]     To that extent, and in those respects, the appeal succeeds, but in substance it fails.

Solicitors:

Winterwoods Lawyers, Palmerston North for Appellant

Crown Solicitor, Palmerston North for Respondent