Combes v Police - [2012] NZHC 945

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-11 [2012] NZHC 945

PETER WILLIAM COMBES

V

NEW ZEALAND POLICE

Hearing: 7 May 2012

Counsel: J Webber for Crown
I Miller for Appellant

Judgment: 8 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1:00pm on the 8th May 2012.

JUDGMENT OF WILLIAMS J

[1] Peter Combes appeals against sentence. He pleaded guilty to careless use of a motor vehicle causing injury and was sentenced on 19 March 2012 in the District Court at Nelson to 13 months disqualification, a fine of $1,500, together with court costs of $132.89 and reparations to the victim of $500.

[2] Mr Combes has no argument with the reparations or the court costs, but says that the fine was too high and the disqualification too long.

Facts

[3] The offending occurred at 6.52pm on the evening of 5 September 2011. The appellant was driving his taxi along Trafalgar Street in Nelson. Trafalgar Street has a

PETER WILLIAM COMBES V NEW ZEALAND POLICE HC NEL CRI-2012-442-11 [8 May 2012]

reasonably high traffic volume and a speed limit of 50km per hour. The appellant approached a right turn into Wainui Street but failed to give way to an ongoing moped. The moped hit his vehicle “at speed” and the rider was thrown into the windscreen of the taxi. The rider was later treated for cuts and bruises to his leg, a broken fist and sprained thumb. The appellant said he simply did not see the moped coming.

[4] In his sentencing comments, Judge Russell, emphasised the fact that this was the appellant’s third appearance for careless use of a motor vehicle. Both the current offending and offending in 1997 (that is two of the three) involved injury to another. The learned Judge specifically and intentionally structured the disqualification period so as to ensure that the appellant could not return to driving without having resat his driving test.

Submissions

[5] The appellant claims that the sentence was manifestly excessive. Counsel argues that when measured objectively, the seriousness of this offending is low because:

(a) neither speed nor alcohol was a factor;

(b) the accident was in the early evening when visibility was low; (c) the victim was following closely behind a car; and
(d) the victim’s injuries were not serious.

[6] The appellant submits that this was a case of momentary inattention rather than serious carelessness. The appellant argued that it was wrong in principle for the learned Judge to work back from his conclusion that the appellant should be made to resit his licence, rather than simply assess the seriousness of the particular offending in light of relevant authorities. The appellant argued that a more appropriate sentence would have been a fine of $750-$1,000 and disqualification of six to nine months.

[7] Mr Webber for the police argues that the penalty is well within range. The Land Transport Act provides a maximum fine of $4,500…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Combes v Police

Details

AGLC: Combes v Police [2012] NZHC 945
Case: [2012] NZHC 945
Decision Date: 8 May 2012

CaseChat Overview and Summary

Peter Combes, the appellant, appealed against his sentence for careless use of a motor vehicle causing injury. The incident occurred on September 5, 2011, when Combes, driving his taxi in Nelson, failed to give way to a moped resulting in injury to the moped rider. The District Court imposed a 13-month disqualification period, a $1,500 fine, court costs, and reparations to the victim. Combes contested the severity of his disqualification and fine, arguing that the circumstances of the offence did not warrant such a harsh penalty. The case raised issues concerning the appropriate sentence for careless driving causing injury, particularly in relation to the length of disqualification and the amount of the fine. The appellant's submissions focused on the low severity of the offending, considering factors such as the time of the incident, visibility conditions, and the nature of the injuries sustained by the victim. The court considered the arguments and relevant legal precedents, including Tupu v Police, George v Police, and others. Williams J concluded that while the fine was within the acceptable range, the 13-month disqualification period was manifestly excessive. The court found that the learned judge had relied on extraneous factors, such as the requirement for resitting the law and practice test for taxi drivers, and had not adequately balanced the culpability and consequences of the offending. The appeal in respect of the disqualification period was allowed, and the court substituted a nine-month disqualification period. The other aspects of the sentence were to remain unchanged.

Orders