Clapham v Police HC Wellington CRI-2011-485-5

[2011] NZHC 329

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-5

MICHAEL MARK CLAPHAM

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 April 2011

Counsel:         B A Crowley for Appellant

K S Grau for Respondent

Judgment:      21 April 2011 at 3:15 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 3.15pm on the 21st day of April 2011.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant was originally charged with two counts of dangerous driving and one of failing to stop.   He denied all three charges.   At a status hearing on

23 September 2010 he offered to plead guilty to a charge of careless driving.  That offer was not acceptable to police and a defended hearing was scheduled.  On the morning of the hearing, 8 February 2011, the prosecutor advised that police would accept a plea to one count of careless driving, in respect of an incident which had

occurred on Dixon Street on 23 May 2010.

CLAPHAM V NEW ZEALAND POLICE HC WN CRI-2011-485-5 21 April 2011

[2]      When  the  matter  was  called  before  Judge Wainwright  the  charges  were amended and withdrawn as agreed and the plea of guilty to one charge of careless driving was entered.   Sentencing took place immediately.   In her brief sentencing notes the Judge said:

[1]       Mr Clapham, I have taken into account the circumstances of your offending and what your counsel has to say.  Normally on an offence like this I would disqualify for six month.  I am going to disqualify you for three months and you have a fine of $400.

[2]       I should just note that the reason that I have not taken  up your counsel’s offer was suggestion that you not be disqualified, is that you have been disqualified twice before and disqualification is actually quite a serious thing to do to somebody, and you hope that, when you have done it twice, that they will be really careful on the road.  Although I understand that you did not accept that you were driving dangerously, clearly there was a strong view on the part of the police that you were at least careless.  You are very young and I want you to think twice when you are in a car again.

[3]      The present appeal is against the order for disqualification. The other parts of the sentence are not the subject of appeal.

[4]      There are two grounds of appeal.  The first is that the Judge did not provide sufficient reasons for imposing the disqualification (in addition to the fine imposed) and that she considered irrelevant matters and failed to consider relevant matters. The second ground is that the period of disqualification (in addition to the fine imposed) was manifestly excessive.

[5]      On the first ground of appeal, counsel for the appellant takes issue with the Judge’s comment in para [1] of the sentencing notes that “normally on an offence like this I would disqualify for six months”. He submits that the effect of this normal practice of the Judge is to place an unnecessary fetter on the Court’s discretion and that this is an inappropriate approach.   Counsel for the respondent accepts that a period of disqualification of six months on a careless driving charge would be rare and that the Judge’s statement that she would normally impose a period of disqualification of six months on such a charge is surprising.   In accepting that a period of disqualification of six months on the careless driving charge would be rare, counsel for the Crown has considered the cases of Rathburn v Police, Mullaly v

Police, and Powell v Police.1    However the Crown submits that this comment does not demonstrate a fetter on the exercise of her discretion.

[6]      If the Judge, in her comment, was suggesting that a period of six months disqualification  was  the  usual  sentence  for  a  charge  of  careless  driving,  then  I consider that that would be an error in principle which would justify the intervention of this Court on appeal.  However, I do not consider that the Judge’s comment is to be read in that way.  I consider that it is properly understood as to be a reference to the decision prima facie appropriate in this case having regard to the circumstances as the Judge saw them.  On that basis, while that would reflect a stern starting point, and indeed one potentially out of range, I do not think that it demonstrates an error in principle.

[7]      In the end result, the actual disqualification imposed was three months.  The Judge gave reasons for disqualifying.   She noted that the appellant had been disqualified twice before.  She made reference to the nature of the driving.  She also made reference to the appellant’s youth.  I do not think that it can be said that the case is one where a sentence of disqualification was not, as a matter of proper sentencing principle, open to the sentencing Judge.

[8]      For these reasons, I do not consider that the first ground of appeal is made out.

[9]      The second ground of appeal is that sentence is manifestly excessive.  That is the nub of this appeal.  As in any sentencing decision, what is important is the end result, rather than the reasoning process which has led to that result.  Counsel for the appellant submits that the common feature of cases discussed by Hammond J in Powell appears to be that the loss of control of the vehicle (involving an increased risk to other road users) results in a loss of licence.  He submits that feature is absent here and that the sentence is accordingly manifestly excessive.   Counsel for the

Crown submits that it is clear from the cases cited that a period of three months

1      Rathburn v Police HC Christchurch A132/02, 6 March 2003;  Mullaly v Police HC Timaru

SP13/02, 10 September 2002; Powell v Police HC Wellington AP286/02, 10 December 2002.

disqualification would not be out of line with other sentencing decisions.  Counsel submits that although the sentence was stern, it was not manifestly excessive.

[10]     The  fixing  of  the  appropriate  penalty  requires  an  assessment  of  the seriousness of the offending, and the degree of culpability.  The authorities do not establish any general principle that unless a loss of control occurs, disqualification is unlikely.   Loss of control is simply one aspect of the circumstances.   Here, the offending occurred at 1am, on a wet road, when there were many pedestrians around. The appellant made two abrupt changes of lane, cutting off another vehicle.   The appellant has earlier disqualifications, which were properly treated as an aggravating personal factor.   The assessment by the Judge was, I consider, within range.   The sentence, although stern, was not manifestly excessive.

[11]     For these reasons, the appeal is dismissed.

Solicitors:           Brett Crowley, Barrister, Wellington, for Appellant

Crown Solicitor, Wellington, for Respondent

“A D MacKenzie J”