E v Police HC Invercargill Cri-2010-425-28

[2010] NZHC 1737

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-425-000028

E

v

POLICE

Hearing:         27 September 2010

Appearances: R R Smith for Appellant

K Henry for Respondent

Judgment:      27 September 2010

ORAL JUDGMENT OF HON. JUSTICE FOGARTY

[1]      This is an appeal against part of a sentence imposed by the District Court Judge K J Phillips.   The appellant appeared before the Court facing a charge of assault under s 196 of the Crimes Act 1961, and one of intentional damage under s 11(1)(a) of the Summary Offences Act 1981.  He had been on the deck at a hotel in Mataura.  The male victim had driven into the carpark and the appellant had begun to bottle his motor vehicle by throwing a green stubby bottle at it and then two further glass bottles.  The bottles smashed the rear passenger window.  One of them, thrown into the cabin through the smashed window, struck a female occupant on the arm. She suffered bruising and soreness for two weeks.

[2]      The appellant was convicted and sentenced on the charge of assault to 150 hours’  community  work  and  to  supervision  for  nine  months.    He  was  further

E V POLICE HC INV CRI-2010-425-000028  27 September 2010

disqualified from holding or obtaining a driver licence for a period of four months. In relation to the charge of intentional damage he was sentenced to 60 hours’ community work.

[3]      The  argument  on  appeal  is  that  the  Judge  had  no  power  to  make  a disqualifying order, and that the Court’s power to disqualify is contained in s 80 of the Land Transport Act 1998:

80General penalty of disqualification may be imposed if offence involves road safety

(1)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.

(2)The power conferred by subsection (1) is in addition to, and does not limit, any other powers of the court.

and s 124 of the Sentencing Act 2002:

124Power  of  court  to  disqualify  offenders  from  driving  motor vehicles

(1)This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against the Transport Act

1962 or the Land Transport Act 1998.

(2)A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—

(a)the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or

(b)       a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of  facilitating  his  or  her  flight  or  avoiding  his  or  her detection or arrest after the commission of the offence.

(3)The court may order the offender to be disqualified from holding or obtaining a driver licence within the meaning of the Land Transport Act 1998 for any period in accordance with section 125 that the court thinks fit.

(4)The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.

(5)Nothing in this section limits or affects any power of the court under any other enactment to make an order disqualifying any person from holding or obtaining a driver licence.

[4]      It is plain that there is no power to disqualify in this case by reason of s 80. The only question is whether or not it could be said that the commission of the assault was facilitated by the use of a motor vehicle by the offender.   There is an argument at a stretch that the offender took advantage of the broken window of the motor vehicle when throwing one of the bottles, but in my view that is well outside the meaning of s 142(2) read in the light of its purpose.   I am satisfied that the imposition of the disqualification was beyond the power of the Court.

[5]      The Crown invited the Court to increase the sentence if this disqualification was to be removed.  That was opposed.  Mr Smith pointed out that the appellant has already suffered loss of the ability to drive for one month prior to this appeal being lodged.  I declined to alter the rest of the sentence.

[6]      Accordingly, the appeal is allowed by removing the disqualification.

Solicitors:

Cruickshank Pryde, Invercargill

Crown Solicitor’s Office, Invercargill