Blackie v Police
[2016] NZHC 1732
•28 July 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2016-412-000013 [2016] NZHC 1732
BETWEEN PAUL ANDREW BLACKIE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 27 July 2016 Appearances:
A W Belcher for Appellant
R D Smith for CrownJudgment:
28 July 2016
JUDGMENT OF DUNNINGHAM J
[1] On 9 April 2016, the appellant was charged with driving at 169 kilometres per hour in a 100 kilometre per hour zone.1 He pleaded guilty, and on 17 June 2016, he was sentenced by Judge Turner to a fine of $800.00 and was disqualified from driving for nine months.2
[2] Although the Judge does not expressly refer to it, it is apparent that the period of disqualification was imposed under s 80 of the Land Transport Act 1998 (the Act). This is reinforced by the fact that the summary of facts requested the Court to
consider disqualification under s 80 “as the speed relates directly to road safety”.
1 Under the Land Transport Act 1998, s 40; Offences and Penalties Regulations 1999, regs 3; Road User Rule 2004, r 5.1(1).
2 Police v Blackie [2016] NZDC 11589.
BLACKIE v NEW ZEALAND POLICE [2016] NZHC 1732 [28 July 2016]
[3] The appellant appeals against sentence on the basis that the period of disqualification is manifestly excessive. No issue is taken with the fine. Specifically, the appellant alleges that the Judge made the following errors:
(a) the Judge must have approached the issue on the basis that the appellant was being sentenced for dangerous driving, but even if this was not the case, the disqualification period imposed was more than that “normally … imposed on conviction for dangerous driving”, and was, as a result, excessive; and
(b)the Judge erred by taking into account the appellant’s history of speeding infringements as these are not, strictly speaking, “previous convictions” and were not able to be used by the Judge at sentencing.
Principles on appeal
[4] This appeal is an appeal against sentence, and as such is brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that, in
the event, a different sentence should be imposed.3
[5] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. However, if, as claimed here, the sentence is “manifestly excessive”, the Court on appeal can intervene and impose a lesser sentence.
Grounds for disqualification under s 80 Land Transport Act 1998
[6] Section 80(1) of the Act provides that:
If a person is convicted of an offence against this Act, and the court is satisfied that the offence relates to road safety, the court may order that the person be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.
3 Criminal Procedure Act 2011, s 250(2) and (3).
[7] The setting of the period of disqualification under s 80 involves the exercise of a discretion, as the Judge may impose such period as he “thinks fit”. Although each case will turn on its facts, it is accepted that “where danger to other road users is shown, disqualification should follow”.4 The Court in Auckland City Council v Tubman accepted that exceeding the speed limit is an issue related to road safety, with the Court identifying the key question as “Did his driving or the excessive
speed when compared with his proper speed relate or have reference to road safety?”5 Where it does, there is jurisdiction to disqualify. The Judge’s finding that the appellant’s speed in this case created a risk to the public and therefore related to road safety was clearly sustainable.
Did the Judge err by taking into account the appellant’s previous record of
speeding infringements?
[8] Although in the appellant’s written submissions it was asserted that the Judge incorrectly took into account the appellant’s history of speeding infringements as if it constituted a series of previous convictions, at the hearing that ground was abandoned, with Mr Belcher acknowledging it was incorrect.
[9] That concession was appropriate. The terms of the discretion in s 80 to disqualify a driver are broad, and the provision does not purport to itemise or limit considerations which the Court may take into account. Furthermore, in sentencing, the Court has a wide discretion to take into account “any other aggravating or mitigating factors that the Court thinks fit”.6 I am satisfied that, as a matter of common sense, the defendant’s previous traffic history, including fine-only regulatory offending, is relevant to the sentencing exercise. The Court should be able to differentiate between the sentence given to an offender with no history of
breaching speed limits, and a person with a history of infringing the speed limits,
when determining the period of disqualification to be imposed.
4 Roger Thornton (ed) Brookers Law of Transportation (online looseleaf ed, Brookers) at
[LT80.01].
5 Auckland City Council v Tubman [1973] 2 NZLR 133 (SC) at 137.
6 Sentencing Act 2002, s 9(4)(a).
Did the Judge err by sentencing on the basis that the appellant had been driving dangerously?
[10] Again, the submission that the Judge implicitly sentenced on the basis of dangerous driving was not pursued at the hearing. Instead it was accepted that the Judge appreciated the actual charge the appellant faced.
[11] Instead counsel for appellant focused on the second limb of this ground of appeal which was whether the sentence of nine months’ disqualification was disproportionate, and therefore excessive, because it was more than that “normally
… imposed on conviction for dangerous driving”.
[12] This submission was supported by reference to the decisions in Kimber v Police,7 and Lingman v Police.8 In those cases the period of disqualification imposed under s 80 was reduced in Kimber, and removed in Lingman, on the basis that, in each case, it was disproportionate in light of the sentence of disqualification which would have been imposed had the charge been dangerous driving, where the mandatory minimum period of disqualification is six months.9
[13] In Kimber the appellant had been found guilty of travelling at a speed of
164 kilometres per hour during an overtaking manoeuvre. The road conditions were fine and there was good visibility. The focus of the appeal was on whether the nine month disqualification period imposed was manifestly excessive.
[14] French J had regard to the appellant’s very poor driving record, noting several speeding offences in the 1990’s but also post 2000, including 2008, the year before the hearing, and dismissed a submission that the offending could be classified as a one-off offence. However, she accepted a submission that, as the appellant had not been charged with dangerous driving, it seemed wrong in principle that he should be subjected to a longer period of disqualification than was likely to have been imposed had he been charged with a more serious offence. On that basis, she allowed the
appeal and substituted a period of disqualification of six months.
7 Kimber v Police HC Timaru CRI-2009-476-000019, 15 October 2009.
8 Lingman v Police HC Rotorua CRI-2011-463-000076, 14 December 2011.
9 Land Transport Act 1998, s 35(1).
[15] In Lingman v Police, Asher J noted that where a driver exceeds a speed limit by more than 40 kilometres per hour, they will be subject to an immediate 28-day suspension pursuant to s 95 of the Act. Taking account of that, and the mandatory minimum term of disqualification of six months for the more serious offence of dangerous driving, he concluded that:10
In considering the appropriate term regard must be had to whether, as here, the offender was subject to an immediate 28-day suspension of his or her driver licence because the speed exceeded the limit by more than
40 kilometres per hour. Also relevant is the mandatory minimum term of disqualification of six months applying to the much more serious offence of dangerous driving. The immediate 28-day suspension can be seen as the minimum penalty applying for a qualifying speeding offence, while six months’ disqualification must be the maximum.
[16] While I would differ from Asher J’s conclusion that the maximum period of disqualification which can be imposed under s 80 for speeding offences relating to road safety is six months (because there is no such express limit and there may be cases of speeding where the offender’s recidivism is so egregious that a longer period of disqualification may be warranted for the purposes of road safety), I accept that a proportionate sentence of disqualification under s 80 for speed related offending should normally fall between the limits he has identified.
[17] I consider that in the present case there has not been adequate consideration of whether the length of disqualification imposed was proportionate to the offending and to the length of disqualification imposed in cases such as Kimber and Lingman. There is no obvious reason why the period of disqualification imposed in this case should exceed the minimum period of disqualification where dangerous driving is proved. While I take into account, as was submitted by Mr Smith for the respondent, that the appellant’s previous record was an aggravating feature, I still consider, having regard to both Lingman and Kimber, that a period of disqualification that exceeds six months is not warranted.
[18] Accordingly, I consider the imposition of a nine month period of disqualification is manifestly excessive in these circumstances. A sentence of six
months’ disqualification is more appropriate. Accordingly, the appeal is allowed.
10 At [13].
The period of disqualification of nine months is quashed and replaced with a period of disqualification of six months. The remainder of the sentence stands.
Solicitors:
Public Defence Service, Dunedin
RPB Law, Dunedin
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