F v Police HC Rotorua CRI 2007-069-725

[2007] NZHC 1067

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-069-725

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 October 2007

Appearances: Mr F   in person

Mr C H Macklin for the Respondent

Judgment:      15 October 2007

JUDGMENT OF ALLAN J

In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 3:00 pm on Monday, 15 October 2007

Copies to:

A J F  , 29A Cambridge Street, Milton, Palmerston North (Appellant) Crown Solicitor, PO Box 740, Rotorua

F V  POLICE HC ROT CRI 2007-069-725  15 October 2007

[1]      This is an appeal against the imposition of a fine of $1800, together with costs of $130, in the District Court at Taupo on 18 May 2007, following a plea of guilty to a charge of careless driving.

Background

[2]      The appellant is a professional driver.  On 7 March 2007, he uplifted from premises operated by ENZA at Whakatu in the Hawkes Bay, a sealed international container of apples destined for export.  He was required in terms of his employment to transport the container to the wharf at Tauranga.  The customary paperwork was not available with the consignment.  He made enquiries of ENZA staff and was told that the paperwork had been despatched with another driver. The appellant made enquiries of the head office in Auckland of Mainfreight (the head contractor) and was told that the paperwork was in order and that he should proceed without it.  The container having been sealed prior to his arrival at Whakatu, the appellant was unable to check the contents of the container or the distribution of the load within it.

[3]      At about 6:30 pm that same evening, the appellant’s truck and semi-trailer met with an accident on State Highway 5 near Rangitaiki.  The vehicle had passed through a right-hand bend with an advisory speed limit of 65 km per hour and having travelled a further hundred metres or so, approached a second right-hand bend.  A vehicle approaching from the opposite direction flashed its lights, presumably as a warning.  The appellant took the flashing lights to indicate that a traffic enforcement officer was in the vicinity.  His speed as he entered the right-hand bend was of the order of 85 km per hour, within the open road speed limit for a vehicle of this size.

[4]      As the appellant’s vehicle rounded the bend, the appellant was confronted by two sheep in the middle of the road.  They scattered as he approached and he, for his part, swerved to the right in an endeavour to avoid them, so encroaching upon the opposite lane.  In doing so, the semi-trailer rolled and the cab followed.  The rig then slid on its side for a distance of some metres before coming to rest in the opposite lane.  Fortunately, the roadway was clear at the time.  No other vehicle was affected. The appellant suffered minor injuries only.

[5]      The truck and trailer unit, taken together, exceeded the maximum permitted weight by approximately 3 tonnes.  It was also, on the police case, too high, in that it exceeded the maximum total height allowance of 4.25 metres.  However, there is no evidence as to the extent to which it exceeded the permissible height.

[6]      The police case was that the accident was caused by a combination of the rig being over weight and exceeding its permitted height.  Those factors, together with the unstable characteristics of the cargo of apples, rendered the rig in breach of its Static Rollover Threshold.

[7]      The police alleged that the appellant was careless in that he had failed to check that his rig complied with height and weight constrictions, and that he ought to have ensured that the inherently unstable cargo of apples was safely stowed.   The police also contended that, having been warned by the approaching vehicle of an unknown hazard ahead, the appellant ought to have been driving at such speed as to be able to avoid the sheep in the middle of the roadway without endangering his rig.

[8]      The  police  commenced  a  prosecution  in  the  Taupo  District  Court.    The appellant was charged with carelessly operating a vehicle contrary to s 37(1) of the Land Transport Act 1998.  He is based in Palmerston North and chose not to attend the hearing.   He did, however plead guilty by letter, in the course of which he pointed out that he drove for a living and that he would lose his livelihood if he lost his licence, that he had a record free of any driving convictions and that while he accepted that he would be likely to incur a fine, it was crucially important to him that he not be deprived of his licence.

[9]      The prosecution was heard by Justices of the Peace on 18 May 2007.  The Justices held that the appellant, as a professional driver, was driving a heavy and potentially dangerous vehicle, that the public was entitled to expect high standards of driving  behaviour  from  him,  and  that  he  had  palpably  failed  to  exercise  an appropriate duty of care.  The Justices declined to impose a period of disqualification but convicted the appellant and fined him $1800, together with Court costs of $130.

Submissions for the appellant

[10]     Mr F   appeared in person.  He submitted that the fine was too high and indeed suggested that it would have been proper in this case for the Justices simply to have discharged him upon payment of costs.  He accepted that he bore a degree of culpability for what occurred because it was his ultimate responsibility to ensure that the vehicle he was driving complied with the weight limits imposed by law.   He accepted that the accident arose from the overall weight of the rig, exacerbated by the inherently unstable nature of his cargo.  He said that he ordinarily inspected the contents of the container if it was open at the time of his arrival to uplift it, but in this particular case the container had already been closed and sealed for export.  He felt justified in proceeding because the head office of Mainfreight had told him that the “paperwork was confirmed”,  and  that  it was  in  order  for  him  to  undertake  the journey.  Had he not received that assurance, he would not have done so.

[11]     He does not accept that he was at fault in respect of his response to the warning conveyed by the flashing lights of the oncoming motorist.  He says that he took that to be simply a warning of the presence of an enforcement officer in the vicinity and there was no need for him to take any action in that respect because he was already driving at a speed below the legal limit.   He had been driving heavy vehicles for a total of 12 years and had an unblemished driving record, he said.

[12]     He said he was aware of two cases in which drivers of heavy vehicles had been charged with offences consequent on their rigs having rolled and asserted that they  had  emerged  virtually  unscathed  in  the  sense  that  no  significant  financial penalty was imposed.

Submissions for the Crown

[13]     For the Crown, Mr Macklin accepted that this case was not at all near the highest level of culpability for a charge of this nature and that a fine of $1800, measured against the maximum penalty permitted by law of $3000, could properly be characterised as a stern response.  He helpfully referred me to my earlier decision

of Hakeke v Police HC WHA CRI 2005-488-31 30 June 2005, in which I reviewed certain earlier authorities on sentencing for careless driving.  In Hakeke I upheld a fine of $1300 imposed upon a learner driver who carelessly permitted his van and A frame trailer (carrying a second vehicle) to leave the sealed roadway momentarily, with the result that when he endeavoured to correct the position he lost control and his trailer collided with the last of four oncoming vehicles.

Discussion

[14]     In my view, there is substance in this appeal. I do not think that there was anything about the appellant’s driving that could be characterised as careless.   In particular,  his  response  to  the  flashing  lights  of  the  oncoming  vehicle  was appropriate. Moreover, the police who attended the scene and took photographs and measurements accept that the appellant was driving within the relevant speed limit. The accident arose by reason of the need for the appellant to take precipitate action upon encountering sheep in the middle of the road as he was rounding a bend, with the  result  that  the  overweight  and  over  height  vehicle,  carrying  an  inherently unstable cargo, tipped on its side.

[15]     The carelessness to which the appellant properly pleaded guilty consists of his failure to ensure that his rig complied with the weight limits imposed by law.  He was concerned at the absence of paperwork and made enquiries of head office, from where he was assured that the paperwork was in order and that he should proceed. As matters turned out, of course, the paperwork was not in order.  The appellant’s carelessness arose from his failure to personally satisfy himself that the rig was compliant, rather than simply accepting assurances from head office.

[16]     There is no evidence as to the extent to which the rig infringed the applicable height limits.  International cargo containers are of a standard height.  The appellant explained at the hearing of the appeal that if the rig was over height, then that would be because the trailer (hired by the appellant’s employer) was itself set at too high a level.

[17]     I regard the appellant’s carelessness as being at a relatively low level of culpability but the consequences were serious, albeit not as disastrous as might have been the case had there been oncoming traffic.

[18]     The reasons given by the Justices run to just three lines of typescript.  It is not possible to discern their reasons for concluding that a fine of the order of $1800 was appropriate.  The appellant’s culpability here stemmed from his failure to personally satisfy himself as to the adequacy of the consignment documents which were unavailable to him at his departure point.  Hakeke, and the cases referred to therein, were instances of carelessness arising from the management of the vehicle while on the road.

[19]     The level of carelessness in this case calls for proper recognition but not at the same level, in my view, as is appropriate where fault can be found with the operation of the vehicle itself.  Having said that, it is not appropriate, as the appellant urges, for the Court to impose a minimum penalty or no penalty at all.   The consequences of the appellant’s carelessness were serious.   They could have been disastrous.  But in my opinion, the appropriate financial penalty ought to be much lower than was imposed by the Justices.

Result

[20]     The appeal is allowed.  The fine of $1800 is quashed.  I substitute a fine of

$500.  The order for payment of costs of $130 will stand.

C J Allan J