C v Police HC Christchurch CRI 2007 409 83

[2007] NZHC 428

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007 409 000083

BETWEEN  C

Appellant

AND  THE POLICE Respondent

Hearing:         3 May 2007

Appearances: V Walsh for Appellant

S. Litt for Respondent

Judgment:      3 May 2007

JUDGMENT OF HON. JUSTICE JOHN HANSEN

A.       The appeal is allowed.

B.       The sentence of disqualification is quashed.

[1]      The appellant pleaded guilty to one charge of driving while disqualified.  He applied not to be disqualified, maintaining that special reasons relating to the offence existed under s 81 of the Land Transport Act 1998.

Background

[2]      The background to this matter is that the appellant is someone who suffers from serious depression.   This has been exacerbated by relationship issues.   It is apparent from the letters put before the Court from his doctor that on the day in question he was severely depressed, suicidal, and attempted to burn his parents’

C V THE POLICE HC CHCH CRI 2007 409 000083  3 May 2007

house by lighting a fire in his bedroom.   He went to see his General Practitioner, who referred him to the Emergency Psychiatric Services.   After dealing with him, they released him in a taxi, but gave him back his car keys.   He then went and obtained his car and drove.   He came to the attention of the police because the General Practitioner concerned was so worried about his state, and the fact that he had been released by Emergency Psychiatric Services, that she notified the police. The Crown accept that that is the basis upon which he was apprehended.

[3]      The matter first came before Judge Green, and  it  appears to be common ground that he accepted that special circumstances relating to the offence existed under s 81 of the Land Transport Act.   However, ultimately on that day, the sentencing was not done by Judge Green, but by a Judge Cunningham.  Counsel then appearing, having changed from the earlier appearance, was unaware of the concession made by Judge Green.   That counsel, Ms Walsh, who appears on this appeal, was of the view that the police also accepted that there were special circumstances.

[4]      Ms Litt for the Crown advises that, in fact, the information she has received from the police is that they were ambivalent, accepting that there were difficult circumstances confronting this defendant that led to his driving, but in the end left it to the Crown.  It is unfortunate that this matter unfolded in this way, and in a sense it can be viewed by analogy with a disparity argument, ie would it draw the law into disrepute in that a Judge of the experience of Judge Green indicated a certain course of  action  and  accepted  certain  matters,  but  this  was  not  advised  later  to  the sentencing Judge, and that a sentence was given with ignorance of that situation.  I am not sure if the prosecutor was the same at the hearing in front of Judge Cunningham as the one who appeared in front of Judge Green, because it seems to me that if there was an acceptance by Judge Green that there were special reasons, the prosecutor had an obligation to draw that to the attention of the sentencing Judge. The prosecution were quite entitled to maintain an ambivalent stance, but, equally, given the onus on prosecutorial fairness, that should have been drawn to the Judge’s attention.  In any event, it seems to me that the Judge has not fully considered the matters placed before her, and has not dealt with them within what can only be described as extremely brief sentencing notes.

[5]      If one refers to the decisions relied on by Ms Walsh today, Whittall v Kirby (1947) DB 194, followed in New Zealand, the special circumstances must relate to the facts of the offence and arise from the circumstances.  It is a case that is, in my view,   clearly   stronger   than   that   confronting   Tipping   J   in   the   case   of McGowan v Police (HC, Christchurch AP 139/91 5 July 1991).  In that case, because of emotional pressure that was involved in making the decision to drive, the Judge reduced the term of disqualification.

[6]      On  the  other  hand,  the  Crown  referred  to  a  decision  of  Wild  J  in Love v Police [2001] BCL 405.  In that case the appellant was upset because of an argument over retrieving photographs of his deceased father from a former partner. Although that was understandably an emotional event for the appellant in that case, it cannot  be compared with this case where there  is compelling  medical evidence before the Court of the exact state of Mr C  .

[7]      For two reasons, I think this appeal should be allowed.  Firstly, I think special reasons do  exist.   Secondly, given the clear acceptance and  indication of Judge Green, it was not open, in my view, for another sentencing Judge to take a different view.   If they wished to do so they should have advised the appellant and held a hearing into the matter in the normal way.  Of course I do not say that in a manner critical of the sentencing Judge, as she had not been informed of what Judge Green had found.

[8]      Accordingly, the appeal is allowed, and the sentence of disqualification is quashed.

[9]      It should be made very plain to Mr C   that  he should not  expect similar treatment from the Court if he comes back with these sorts of reasons for driving in the future.  These are one off these sorts of events and he needs to learn to cope with his depression in such a way as it does not lead him to driving.

Solicitors

V. Walsh for Appellant

Crown Law, Christchurch for Respondent