G v Police HC Rotorua CRI-2007-463-120

[2007] NZHC 1205

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-463-120

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 November 2007

Appearances: Mr P J Clarke for Appellant

Ms T Bayley for Respondent

Judgment:      6 November 2007

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

I D Farquhar, Taupo

Crown Solicitor, Rotorua

G V NZ POLICE HC ROT CRI-2007-463-120  6 November 2007

[1]      Mr G   pleaded guilty in the District Court at Taupo to two charges of careless driving causing death and one charge of careless driving causing injury. Judge McGuire sentenced him to 250 hours community work and disqualified him from holding or obtaining a drivers licence for a period of five years.   In addition the Judge ordered Mr G   to make reparation of $1,000 to the family of one of the deceased persons and the sum of $200 to the family of the other.

[2]      Mr G   now appeals to this Court against the length of the period of disqualification that the Judge imposed.

Factual background

[3]      The incident that led to the charges occurred at approximately 4.30 pm on Sunday 27 May 2007.   On that afternoon Mr G   was driving a station wagon on what is known as the “off highway road” towards Broadlands Road, near Taupo. He was driving into the setting sun, and the Judge accepted that this doubtless played a part in what was to follow.

[4]      The off road highway crosses Broadlands Road at a crossroads just north of the racetrack.   For someone travelling to the west, as Mr G   was, there is a stop sign requiring motorists approaching the Broadlands Road intersection to stop.

[5]      Mr G   failed to stop at the intersection and a larger vehicle travelling north on Broadlands Road towing a trailer collided with the passenger side of Mr G  ’s vehicle.   Mr G  ’s girlfriend was seated in the front passenger seat and Mr G  ’s friend was seated behind her.    Tragically they were both killed as a result of the collision.    A passenger in the vehicle that collided with Mr G  ’s vehicle was injured.

[6]      The Judge accepted, no doubt on the basis of a comprehensive report that was presented to the Court, that the speed of both vehicles at the time of the collision was significantly below the speed limits for both roads.     It is also likely that both vehicles braked just prior to the collision occurring.

[7]      There were a large number of mitigating factors that the Judge took into account.     The first of these was that Mr G   pleaded guilty at an early opportunity.    The second was that Mr G   is just 18 years of age, and had no previous criminal convictions.   Moreover, the two people who died in the accident were his girlfriend and his best friend.   As the Judge observed, the whole incident is a profound tragedy that has affected a large number of people, many of whom were present in Court to support Mr G   when he was sentenced.

[8]      The Judge also had available to him a large number of references.    These testified to Mr G  ’s good character.    The families of the deceased passengers were also united in their support for Mr G  , and urged the Court not to punish him further.

[9]      There was, however, one significant aggravating factor and this was the fact that,  at  the  time  of  the  accident,  Mr  G    held  a  restricted  licence.      This prohibited him from carrying passengers, and he was acting flagrantly in breach of that condition at the time that the accident occurred.   This was an important matter, and one that the Judge was clearly entitled to take into account.   As he observed, the purpose of a restricted licence is to ensure that passengers in a vehicle driven by an inexperienced driver, do not provide a distraction for the driver.

[10]     I would add that the prohibition on carrying passengers is also designed to prevent other people from placing themselves in the path of danger at the hands of persons who are not particularly experienced drivers.     Had Mr G   been observing the terms of his restricted licence, this particular tragedy would not have occurred.    Both his girlfriend and his best friend would still be alive today.    Mr G  ’s failure to observe the terms of his restricted licence was also a matter that the Judge was entitled to take into account.

[11]      Counsel advise me that no submissions were addressed to the Judge in relation to the length of the period of disqualification that he should impose.   Mr G   accepted that it was inevitable that he would be disqualified, but neither his counsel nor the prosecutor advanced submissions in relation to the length of the disqualification.

[12]     In his decision the Judge did not cite any authority supporting his decision to disqualify Mr  G    from  driving for  five  years.      I infer  from  his  decision, however, that the principal factor that motivated him to impose that length of disqualification was the fact that Mr G   was driving outside the terms of his restricted licence.    I take this from the lengthy discourse on this topic during the Judge’s sentencing remarks.

[13]     Counsel have provided me with a large number of authorities in which this Court has discussed the length of the period of disqualification to be imposed in cases where the offender has been convicted of charges of causing death or injury through the careless use of a motor vehicle.   Obviously care needs to be applied in considering these, because each case will depend to a large extent upon its own facts.

[14]     I  find  for  present  purposes  the  decision  of  Orpwood  v   Police  HC Christchurch AP 97/01 28 November 2001 Panckhurst J to be of the most assistance. In that case the appellant had pleaded guilty to two charges of careless driving causing  death  and  two  charges  of  careless  driving  causing  injury.       The circumstances of that case were that the appellant was a professional driver and had driven his vehicle through a stop sign.   It then collided with another vehicle, causing the deaths of two persons and injury to two others.

[15]     In that case the sentencing Judge had disqualified the appellant from driving for a period of two years.   That period of disqualification was reduced to 12 months on appeal to take into account the fact that the conduct that caused the death and injury was of moderate to serious carelessness.   In that case, however, the appellant

had an excellent driving record and was not driving in breach of any condition of his licence at the time that the accident occurred.

[16]     The only case that counsel have been able to find where a period of five years disqualification was imposed was in Roberts v Police HC Rotorua AP 53/99 Salmon J 26 August 1999.     In that case the appellant had pleaded guilty to a charge of careless driving causing death and careless driving causing injury.    The driving in question was said to be of moderate to serious carelessness.   On appeal, this Court reduced the period of disqualification from five years to two years.

Conclusion

[17]     Counsel for the Crown accepts that the period of disqualification that the Judge imposed in this case was outside the range that was available to him.    She submits that a period of disqualification of approximately two years would be appropriate having regard to all of the circumstances, including the culpability of Mr G  ’s conduct, the consequences that occurred as a result of the accident and the fact that he was driving outside the terms of his restricted licence.

[18]     I agree with that assessment.   The period of disqualification to be imposed in this case must clearly be more than the minimum period of six months.   Had it not been for the fact that Mr G   was driving outside the terms of his restricted licence, I would have said that an appropriate period of disqualification would be 12 months.   That would adequately reflect the consequences of Mr G  ’s conduct as well as the level of carelessness, which the Judge accepted was at the very lowest level.     In order to adequately take into account the aggravating factor that Mr G   was driving in breach of the terms of his restricted licence, I consider that the period of disqualification should be doubled to one of two years.

[19]     For these reasons the appeal is allowed.   The period of disqualification that the Judge in the District Court imposed is quashed.   In its place I substitute a period of disqualification of two years.

Lang J