E v Police HC Nelson CRI-2007-412-67

[2008] NZHC 172

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2007-412-67

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 February 2008

Appearances: No appearance for appellant

C P Stevenson for respondent

Judgment:      21 February 2008

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00pm on the 21st day of February 2008.

JUDGMENT OF MACKENZIE J

The Appeal

[1]      Ms   E  ’   appeals   against   the   penalty   imposed   in   respect   of   two infringement offences for which she sought a Court hearing.

[2]      The appeal was listed for hearing, but Ms E   was not advised of the date. When contacted subsequently, she has submitted a letter setting out the essence of

the submissions which she wishes to make.  In the hope that this may assist in the

E V NZ POLICE HC NEL CRI-2007-412-67  21 February 2008

efficient disposal of the appeal, I propose to deliver judgment, but with the proviso that, if Ms E   does, after reading it, wish to pursue an oral hearing (as she is entitled to do) I will recall this judgment and direct that the matter be listed again for oral hearing.

[3]      Ms E   was visiting Dunedin from the Nelson area where she is resident. On 23 April 2007 she was driving on Portobello Road, Otago Peninsula.  She had the misfortune to be recorded by a speed camera twice, going and coming, exceeding the

50 kph limit.

[4]      Proceedings were taken under the infringement offence provisions in the Land Transport Act 1998.  The infringement fees payable under the Land Transport (Offences and Penalties) Regulations 1999 (the Regulations) were $120 and $170 respectively, the difference arising from the different speeds recorded on each occasion.

[5]      The appellant requested a hearing.   She wrote a letter of explanation and pleaded guilty by that letter.  In that letter, the appellant said that she had not seen a speed sign, and followed the speed of the car in front.  She noted that she had been driving for 11 years and had never incurred a ticket for any traffic offence.   That explanation was considered by the Justices of the Peace who heard the matter, who have given a brief statement of their reasons.  They said that they considered a fine of $150 in both cases to be appropriate;  that there were no other circumstances such as road safety to be considered, and that there was no evidence in mitigation, in particular no evidence to support the contention that the speed signs were obscured. A fine of $150 plus costs of $30 was imposed for each offence.

[6]      For reasons which I later discuss, when the appellant elected to have these infringement offences heard by the Court, the penalty to which she became potentially liable  was  a  maximum  fine  of  $1,000  in  each  case,  rather  than  the infringement fee fixed by the legislation.  As I have said, that was $170 in one case and $120 in the other, a total of $290.  The Justices in this case thought it appropriate to impose a fine of $150 on each.  The question on this appeal is whether that was wrong in principle or constituted a penalty which was manifestly excessive.

[7]      In her letter of 20 February 2008, Ms E   has set out the grounds of her appeal.  She says that there was a 30kph limit for road works, but at the end of the limit no further sign was posted.   She submits that the prosecution was unable to prove that signs imposing a 50kph limit were clearly visible.  She has inferred from the numbers on the tickets issued to her that 16 tickets were issued in a little over an hour, and submits that this demonstrates that no signs were visible to motorists on that day.

[8]      Ms E   pleaded guilty to the infringement offences.   Under s 24 of the Sentencing Act 2002, the Court was required to accept as proved all facts that are essential to guilt.  The consequence is that it was not open to her at the hearing or on this appeal, to dispute the essential fact, that the limit in place was 50kph.   This ground of appeal must accordingly be rejected.

[9]      Ms E   also submits that she incurred no other tickets on a holiday around the South Island, and that these are the first tickets she has received in 11 years of driving.  The question is whether the Justices here failed to recognise this mitigating factor to a sufficient extent in the penalty they imposed.  While Ms Evan’s driving record is commendable, and she may be congratulated on it, I do not consider that the Justices have failed to give adequate recognition to it.  The fines imposed were close to the level of the infringement fees, which will apply to drivers regardless of the number of previous infringements.  Records of infringements are not kept.  These facts suggest that the recognition to be accorded to driving record as a mitigating factor must be limited.

[10]     Ms E   further submits that this is an instance of blatant revenue gathering, rather than the enforcement of road safety.   That is a feeling which is no doubt shared by many recipients of speed camera infringement notices.   Such feelings, however widespread, cannot avail when an offence is committed.

[11]     The total fine imposed, $300 as opposed to the infringement fees totalling

$290, cannot be said to be manifestly excessive, having regard to the offending and allowing for the mitigating factors raised by the appellant.  The amount imposed for Court costs ($30 on each) was the mandatory figure.  For these reasons, I would be

minded to dismiss the appeal and to uphold the decision of the Justices.  However because Ms E   did not have notice of the hearing, and in order to avoid undue and expensive further procedures, counsel for the Crown sensibly made a pragmatic suggestion.  He said the Crown would not object if the fine were reduced to $120 in each case.   That concession was based on the mistaken assumption that the infringement fee was $120 in each case.  When I pointed this out Mr Stevenson did not resile from the proposal.   To avoid further expense and inconvenience, I am minded to adopt a pragmatic approach, and to give effect to the Crown’s concession.

Result

[12]     Because the appellant was not advised of this hearing, she must be given an opportunity to be heard, if she wishes.   If she does, she will be alerted by this judgment to the prospect of a more adverse outcome.  In the event that she does not elect to be heard, I propose to adopt the pragmatic suggestion of Counsel for the Crown.  Accordingly, the appeal will be allowed, and the penalty imposed will be reduced to $120, plus costs of $30, on each offence.

[13]     If, within 14 days, the appellant advises that she wishes to be heard, the matter is to be referred to me for consideration of recalling this judgment.

General Comments

[14]     I consider it desirable to venture some comments of a general nature on the infringement offences procedures.  An essentially administrative procedure may be invoked for such offences.  Under that procedure, if the matter is not contested, an infringement fee of an amount set out in the schedule to the Regulations is payable. The recipient of an infringement notice has the right to require the matter to be heard in the District Court.  There is however a “sting in the tail” if that course if adopted. The defendant in those circumstances becomes liable not to the infringement fee fixed by the regulations, but to a fine to be fixed by the Court.  In the case of these infringements, the maximum fine is $1,000.

[15]     The  interrelationship  between  the  essentially  administrative  infringement notice provisions and the judicial procedures which apply if the matter is taken to Court was considered by me in Nelson City Council v Howard [2004] NZAR 689. I held that the penalty able to imposed was the maximum fine for the offence, not the infringement fee. I pointed out that a person electing to have the matter dealt with by the Court was potentially at risk of a higher penalty being imposed. That view of the legislation was accepted by Randerson J in Young v Police [2007] 2 NZLR 382.

[16]     In Nelson City Council v Howard, I described the legislation dealing with infringement  offences  as  “labyrinthine”.    The  complexity  of  drafting  which  is evident in these provisions is, in my view, quite unsatisfactory.  These are provisions which affect ordinary citizens in their everyday lives.  They ought to be simple and readily understandable.  They are not.  That is demonstrated by the fact that there are several conflicting decisions in this Court (some of which were considered by me in Nelson City Council v Howard) on the question of whether, when a matter is referred to the Court, the infringement fee fixes the amount payable.

[17]     The consequences of the different processes should also be transparent.  They are not.  Schedule 1 of the Regulations sets out the difference between the maximum penalty on summary conviction and the infringement fee.   The forms used in this process do not fully inform the recipient of the potential consequences of requiring a Court hearing.  The forms of notice used, as prescribed in the first schedule to the Summary Proceedings Regulations 1958, do not make clear the distinction between the infringement fee and the penalty by way of fine if the matter is taken to Court. The form of reminder notice uses the term “penalty for the offence”.  In doing so, it refers to the infringement fee, not to the maximum fine which may be imposed. There is a statement of the infringement fee payable.  There is no indication in the reminder notice that if the matter is taken to Court, by the defendant, the penalty to be   imposed   will   be   assessed   on   a   quite   different   basis.   Nowhere   in   the documentation is there a statement of the maximum penalty which may be imposed.

[18]   I regard the complexity of the legislative provisions, and the lack of transparency in the forms, as matters which call for legislative and administrative

attention.     These  procedures  should  be  simple,  readily  understandable,   and adequately explained in the documentation.  They are not.

“A D MacKenzie J”

Solicitors:           Pitt & Moore, Nelson