Claver v Police
[2017] NZHC 1976
•18 August 2017
IN THE HIGH COURT OF NEW ZEALAND
INVERCARGILL REGISTRY
CRI-2017-425-000014
[2017] NZHC 1976
BETWEEN SIMON NICHOLAS CLAVER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 August 2017 Appearances:
A S P Tobeck for Appellant D J Orchard for Respondent
Judgment:
18 August 2017
JUDGMENT OF DUNNINGHAM J
Introduction
[1] The appellant, Mr Simon Claver, pleaded guilty to three charges of careless driving causing injury. He was disqualified from holding or obtaining a driver licence for six months and ordered to pay $800 to each of the victims for emotional harm.1
[2] The only issue raised on appeal is whether Judge Couch erred in declining to dispense with the statutory minimum disqualification period under s 81 of the Land Transport Act 1998 (the Act). Section 81 requires the Court to impose the minimum period of disqualification “unless for special reasons relating to the offence it thinks fit to order otherwise”. The appellant says that four points were put forward at sentencing which constituted special reasons relating to the offence, and the Judge did not correctly assess them. As a result, he wrongfully imposed that minimum period of disqualification.
1 Police v Claver [2017] NZDC 8473.
CLAVER v NEW ZEALAND POLICE [2017] NZHC 1976 [18 August 2017]
Background
[3] On the evening of 20 July 2016, the appellant was driving south on Deveron Street in Invercargill. The weather at the time was wet and windy. He failed to stop at the red traffic light at the intersection of Deveron and Esk Streets, driving halfway through the intersection and narrowly missing a vehicle travelling on Esk Street. He braked heavily on realising his mistake but struck three female victims walking across Deveron Street on the opposite side of the intersection. One of the victims was thrown onto his windscreen which shattered. All three were bruised and sore after the impact and one of them sustained an injury to her knee. The defendant eventually pleaded guilty to the charges of careless driving causing injury.
District Court Decision
[4] At sentencing, the appellant sought to persuade the Judge that there were special reasons which would justify the Court not imposing the minimum period of disqualification. His lawyer advanced the following combination of circumstances as establishing special reasons:
(a)the appellant’s explanation that he looked at the green light at the intersection of Tay and Deveron Streets, one block further south and believes he mistakenly focused on that green light and not the red light at the intersection;
(b)the adverse weather conditions;
(c)a foggy windscreen;
(d)the glare caused by the wet smooth road surface reflecting street lights, other traffic and traffic lights; and
(e)the dark clothing of the victims.
The District Court decision
[5] In his decision, the District Court Judge identified the four matters put forward by the appellant as special circumstances and then rejected all of them as constituting, either alone or together, special reasons justifying him not imposing the minimum period of disqualification. His reasoning was as follows:
[9] I deal with each of those propositions. The intersection is a straightforward one involving only two roads. The traffic lights are positioned in conventional positions at the four concerns of the intersection and are plainly in view. The red traffic lights immediately in front of you would have been much larger and brighter in your view than the lights at the next intersection. If you focused on the distant lights rather than those close to you, that was significant driver error on your part. Such conduct would fall well below the standard of a prudent motorist.
[10] It appears there is evidence that one of the victims was wearing dark clothing. Even if all three had been doing so, however, they were plainly there to be seen. There are street lights on the two corners of the intersection and the way ahead would have been illuminated by your own headlights. If visibility was limited, a prudent motorist would have proceeded more solely.
[11] There appears to be no evidence that your windscreen was foggy. If it was, the prudent course would be to wipe it clear rather than to drive with reduced visibility.
[12] Finally, it is suggested you were somehow affected by light from various sources reflecting off the wet road surface. I have not been provided with any evidence that this was so or, if it was, that you were affected by it. In any event, such reflections are not unusual when it is raining and a prudent motorist would drive according to the conditions.
[6] Having addressed all four proposition, Judge Couch concluded there were no special circumstances which would justify exercising the discretion under s 81 of the Act.
Jurisdiction
[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
The applicable legal principles
[8]Section 81 of the Act provides:
81 Provisions relating to mandatory disqualification
(1)If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
(2)Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.
(3)This section is subject to section 94 (which relates to community- based sentences).
[9]Morgan v Police set out the tests to be applied in an appeal involving s 81:3
[13] A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:
(1)an assessment of fact and application of law in determining whether “special reasons” exist; and
(2)the exercise of judicial discretion in making an order other than the mandatory disqualification.4
[14] Thus, an appeal from a decision that makes an assessment of whether the circumstances of the offending constitute “special reasons” is subject to the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.5 In this type of appeal:
(1)The appellate court must reach its own view on the merits of the appeal, bearing in mind.
(2)The appellant bears the onus of satisfying the appellate court that it should differ from the decision appealed from.
[15] However, where the appeal focuses upon the way in which judicial discretion has been exercised, the test to be applied is that set out in May v May.6 In this type of appeal the appellant must show that the decision-maker:
(1)made an error of principle; or
3 Morgan v Police [2013] NZHC 3431.
4 Vaevae v Police [2009] BCL 780.
5 Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 May v May (1982) 1 NZFLR 165 (CA).
(2)failed to consider all relevant matters or took into account irrelevant matters; or
(3)reached a decision that was plainly wrong.
[10] Special reasons “must refer to some facts, or circumstances, which justify the Court in treating the case as one which falls outside the ordinary purview of this section”.7
[11]Similarly, the Court of Appeal, albeit in a different statutory context said:8
A special reason is one that is not found in the common run of cases. While not necessarily being categorised as ‘exceptional’ or ‘extraordinary’, it is one that may properly be categorised as not ordinary or common or usual.
[12] Importantly, where it is sought to establish special reasons, evidence should be given in support, and the Court should not act merely on the submissions of counsel, particularly, where they are based simply on instructions, unless the facts are formally admitted.9 The onus of proof of the relevant facts relied on as constituting special reasons rests on the offender.
[13] Special reasons must be special to the facts which constitute the offence and not one peculiar to the offender. Three matters identified in Lower Hutt City v McAlpine must be considered when considering whether special reasons for not ordering disqualification exist:10
(a)whether in law the particular circumstance are capable of constituting special reasons;
(b)whether special reasons exist on the facts; and
(c)whether the court should exercise discretion in whole or in part.
7 Gassner v Frost [1940] SASR 295 at 298.
8 Basile v Atwill [1995] 2 NZLR 537 at 539.
9 Auckland City Council v Civil HC Whangarei, M116/84, 5 December 1984.
10 Lower Hutt City v McAlpine: Sammons: Brockman-Palmer [1972] NZLR 168 (SC).
[14] Recently, Wylie J in Anderson v Police summarised the principles applying to special reasons application as follows:11
[15] Special reasons ‘embrace only factors of particular or exceptional character’. The reasons must arise from the circumstance in which the offence was committed or the manner of its commission as a whole. Personal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence, or a part and parcel of the offending itself. The special reason must not conflict with the essential purpose of the statutory provision.
Analysis
The appellant thought he was proceeding on a green light
[15] Mr Tobeck submits that the Judge erred by not addressing his mistaken belief that the traffic lights were green, noting Mr Claver gave the same explanation in his statement to the police, and the Judge should not have dismissed this as a factor pointing to special reasons.
[16] I accept that this was the explanation given by the appellant for running the red light. However, I do not consider that the Judge dismissed this explanation. He simply concluded “if you focused on the distant lights rather than those close to you that was significant driver error on your part”. This was a perfectly straightforward assessment of this factor. While it explained how the accident happened, it was simply evidence of carelessness on the appellant’s part, and was properly dismissed as constituting a special reason.
The victims were wearing dark clothing
[17] The appellant objects to the Judge’s conclusion that even if the three victims were wearing dark clothing, they “were plainly there to be seen”. This submission was supported by reference to Huang v New Zealand Police, where Mander J confirmed that the doctrine of res ipsa loquitur did not apply in criminal cases.12 In that case, the appellant struck a cyclist who was travelling the wrong way down a one way street in violation of the road rules. However, as the appellant in that case did
11 Anderson v Police [2016] NZHC 942 at [15].
12 Huang v Police [2016] NZHC 1271 at [31].
look in the direction the cyclist came from, and was travelling slowly, the prosecution had not established beyond reasonable doubt that Mr Huang had fallen below the degree of care and attention that a reasonable and prudent driver would exercise.
[18] However, in the present case, the carelessness which forms the basis of the charge has been admitted and that was necessarily so, as the act of running a red light obviously fell below the standard of a reasonable and prudent driver. What the appellant must establish here is whether there is a special reason which justifies not imposing the minimum period of disqualification. The onus is on him to do so, not on the prosecution to disprove it. The fact the pedestrians were struck was simply an inevitable consequence of the act of carelessness. While they may have been wearing dark clothing that was not a special reason relating to the offence as it did not excuse or lessen the degree of carelessness shown. This was not a case where something unpredictable happened which contributed to the offence occurring. Rather, the pedestrians were crossing when cars should have obeyed the red light signal, and whether they were readily visible or not, they were lawfully there. The fact he did not see them does not constitute a special reason.
Foggy windscreen/light reflecting off wet road
[19] The appellant complains that the Judge rejected the possible impacts of his windscreen being foggy or as being affected by reflections of light off the wet road. He submits that if there was any doubt about that matter, it was incumbent upon the Judge to have a disputed facts hearing under s 24 of the Sentencing Act 2002. However, as the respondent says, there was simply no evidence before the Court that the windscreen was in fact fogged. There is no obligation to invoke a disputed facts hearing, unless there are competing factual narratives. Similarly, in terms of the assertion that the appellant was affected by glare off the wet road surface, the Judge again pointed out there was no factual narrative to support this assertion and that the appellant was affected by it. In the absence of a competing factual narrative, there was no requirement to have a disputed facts hearing. As already stated, where matters raised in submissions alone, without evidence to support them, that will not be sufficient to establish special reasons.
[20] Furthermore, even if both factors were true, it was open to the Judge to conclude that neither factor constituted special reasons. Both were conditions that required more particular care to be taken by the driver, whether to clear the foggy window or to drive to the conditions.
Conclusion
[21] For the reasons given above, I am satisfied that the Court was entitled to dispose of the matters put forward as constituting special reasons, whether individually or cumulatively. In respect of some of these factors the defendant failed to discharge the onus on him to prove that they were present and, in any event, they were all conventional contributors to, or consequences of, his careless driving. They did not have the character of something unusual or out of the ordinary which would warrant not imposing the minimum disqualification period.
[22] The appeal is therefore dismissed. The commencement of the period of disqualification has been deferred while this appeal is progressed. It is to commence at midnight on Monday, 21 August 2017.
Solicitors:
Allan Tobeck, Barrister, Otautau
Raymond Donnelly & Co., Christchurch
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