G v Police HC Wellington CRI 2010-485-34

[2010] NZHC 1256

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-34

BETWEEN  G

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 July 2010

Appearances: Appellant appears in person

K E Salmond for Respondent

Judgment:      19 July 2010

JUDGMENT OF MILLER J

[1]      Mr G   moved for leave to appeal from my judgment of 19 May, saying that I accepted that there was merit in his argument that he should not have to pay the  full  amount  claimed  by the  police,  and  that  I gave my judgment  based  on misleading information to the effect that Mr G   could apply to Land Transport New Zealand for a refund.  He is in little position to pay a fine.

[2]      The police accept that they erred in advising me that the infringement fee amounted to the outstanding road user charges;  it is in fact a penalty calculated by multiplying outstanding road user charges by three.  The police also accept that the Justices of the Peace were not obliged to impose the infringement fee if they found Mr G   guilty;   rather, the penalty imposed became a fine subject to the usual principles of sentencing.  Further, Mr G   could not receive a rebate from Land Transport New Zealand, for the penalty imposed by the Justices was a fine that was not paid to that Agency.  And on appeal against sentence I could have reduced the

fine by reference to any mitigating factors.

GV NEW ZEALAND POLICE HC WN CRI 2010-485-34  19 July 2010

[3]      My judgment focused on the question of exemption, as I accepted that the factual findings made by the Justices of the Peace were open to them.  I found that Mr G  ’s vehicle was not an exempt vehicle for purposes of the legislation.   I also took the view that it was for Mr G   to negotiate a reduction in what I understood were the Road User Charges payable.  That, I am told, was wrong.

[4]      In the circumstances, an injustice has been done and it must be remedied. Ms Salmond accepted that there is jurisdiction to recall the judgment, referring to New Zealand Police v Caudwell[1].  I am prepared to accept that there is jurisdiction to recall the judgment and I do so.

[1] New Zealand Police v Caudwell HC Auckland CRI 2008-404-255, 9 December 2008.

[5]      The fine was $2,164.00 and Mr G   was also ordered to pay Court costs of $30.00.  The fine was calculated by trebling the amount of road user charges said to be due.

[6]      Mr  G    submitted  that  the  vehicle  had  been  used  on  a  farm  by  the previous owner.  He was also fined on the same occasion for having oversized tyres and not having seat belts, the total being about $550.00.  That has been paid.  He is not able to pay the fine imposed because he has many outstanding debts from a failed business venture.  The boat to which I refer in my decision is owned by his partner.

[7]      In the circumstances, I considered that the outstanding roader user charges ought not be trebled, and should be further discounted to reflect what appears to have been a substantial element of off-road use.   I reduced the fine to $300.00 with no Court costs payable in the circumstances.

[8]      Following that decision Mr G   elected not to pursue his application for leave to appeal.

Miller J

Solicitors:

Luke Cunningham & Clere for Respondent