Fitzgerald v Police HC Christchurch CRI-2011-409-000014

[2011] NZHC 449

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000014

STEWART TONY FITZGERALD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 May 2011

Appearances: AND Garrett for Appellant

M Zarifeh for Crown

Judgment:      4 May 2011

JUDGMENT OF CHISHOLM J

[1]      On 22 December 2010 the appellant was found guilty by Justices of the Peace for failing to provide the name of the driver of a motor vehicle in which the appellant owns a half share.  The appellant was ordered to pay a fine of $1000 and court costs of $132.89.  This is an appeal against the fine on the grounds that it is manifestly excessive.

[2]      The  circumstances  of  the  offending  were  these.    The  police  received  a complaint that the appellant’s vehicle had undergone sustained loss of traction. After receiving that complaint the police issued a notice requiring the appellant to identify the driver.  He failed to do so.  The police officer involved gave evidence about these

matters.

FITZGERALD V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000014 4 May 2011

[3]      A technical defence was advanced by Mr Garrett on behalf of the appellant. That defence was rejected by the Justices and the appellant was convicted.

[4]      Mr Garrett argued that the fine of $1000 is well beyond the range that would normally be  expected  for  offending of  this  kind.   Although  the  earthquake  has precluded any opportunity to comprehensively research the matter, Mr Garrett indicated  from  the  Bar  that  in  his  experience  fines  handed  down  for  similar offending have been in the range of $300 to $400.  He is concerned that the Justices of the Peace have sentenced on the basis that the appellant was in fact the driver of the vehicle when there was sustained loss of traction.  In other words, the appellant has been sentenced for something with which he was not charged.

[5]      The appellant is 29 years of age.     He has two previous convictions.   On

28 June 2010 he was fined $300 for sustained loss of traction and on 19 February

2010 he was fined $130 for careless driving.  Mr Garrett said that the appellant is on a modest income of $400 per week.

[6]      Mr Zarifeh pointed out that the maximum available fine is $20,000.   He submitted that the fine imposed by the Justices was within the available range.  He emphasised the level of the maximum fine that was available, the fact that the evidence  would  have  indicated  that  the  appellant  was  able  to  provide  the information, and his previous record.

[7]      Until I became aware of the maximum penalty, the fine of $1000 appeared to be very high.   Even after hearing argument I am still of the same view.   Ideally I would have liked to have had more information about the level of fines traditionally imposed for offending of this nature.  However, in all the circumstances it would be inappropriate to defer the matter to enable further research to be undertaken and I am adopting a pragmatic approach.

I am satisfied that given all the circumstances the fine is manifestly excessive The appeal is allowed, the fine of $1000 is quashed, and a fine of $500 is substituted.