Geo v Police HC Whangarei CRI-2010-488-000066

[2011] NZHC 1305

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-000066

JOSEPH PAUL GEO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 July 2011

Counsel:         Appellant in person

LEP Henderson for Respondent

Judgment:      5 July 2011

JUDGMENT OF ASHER J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei 0140. Email:  [email protected]

Copy to:

JP Geo, 17A Belmont Terrace, Milford, Auckland 0620

GEO V NZ POLICE HC WHA CRI-2010-488-000066 5 July 2011

Background

[1]      Mr Geo has lodged a notice of appeal out of time against his conviction in the District Court for careless driving.  On 20 October 2009, he had been driving in a line of traffic north from Kerikeri.  There were two cars ahead of him, one was a Police vehicle.  He passed the vehicles travelling on to the opposite side of the road to do so.   Coming in the opposite direction was a van, which at the outset of the passing manoeuvre was about 250 metres away and at the completion of the passing manoeuvre was approximately 50 metres away.

[2]      Because of the proximity of the approaching vehicle the completion of the passing manoeuvre was sufficiently abrupt to cause both the Police vehicle and the approaching vehicle to brake.  When spoken to by the Police immediately afterwards he was asked “How dangerous was that?” He replied “Yes, I suppose it was. Sorry.”

[3]      Mr Geo was charged with driving in a dangerous manner.  The matter came before Judge McDonald for a status hearing at the District Court at Kaikohe.  There was an exchange which is recorded in some 10 pages of transcript between the Judge, Mr Geo and the prosecutor which culminated in the Police amending the charge  from  dangerous  driving  to  careless  driving.    Mr  Geo  pleaded  guilty  to careless driving and the Judge convicted him and fined him $200 and $130 court costs. There was no disqualification.

[4]      Mr Geo, in his out of time appeal, suggests that he was under the impression when he agreed to plead guilty that what was going to happen was he would be discharged without conviction, although fined and possibly penalised in other ways. He says that this misunderstanding was brought home to him when he went to get a motorcycle licence (he already has a car licence  and  he needs a  motorcycle to commute to work) and he has found that because of the conviction he is obliged to drive under a learner licence and not a full licence.  This will last for two and a half years.  He also found that his insurance premium, because of his learner licence, is approximately $1,500 a year rather than approximately $500 a year if he held a full licence.  He cannot ride a motorcycle of over 250cc, although this appears to concern him less than the insurance premium.

[5]      Mr Geo also explained how he feels deeply the stigma of a conviction.  He comes from a culture where any such an offence is deeply felt and it has certainly had a profound effect on him personally.

[6]      The Crown opposes the leave application and resists the appeal.  It submits the Judge has made no error and that the decision reached was well within the Judge’s discretionary range.

Discussion

[7]      Mr Geo has presented his appeal personally.  I accept his explanation that his appeal is late due to the surprise of finding the effect it had on his obtaining a motorcycle licence.   I also appreciate that he is justifiably proud of his otherwise entirely clean record and the sincerity of his wish to maintain standards for himself and  his  family.    He  reluctantly  accepts  that  his  driving  was  open  to  criticism, although he points out that the Police car was driving well under the speed limit.  I comment as an aside that this is no excuse for an infringement and that drivers faced with slow drivers ahead of them must subdue their impatience and not take any risks, hard as it may be on occasions.  So it was a piece of driving that fell well within the ambit of the careless driving offence of which he was convicted.

[8]      For there to be a discharge without conviction the Court must be satisfied under s 107 of the Sentencing Act 2002 that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[9]      In considering the merits of this application for leave, and indeed the merits of the appeal, there are two obvious points to be made.  First, the Judge made no error in the procedural conduct of the status hearing.  An objective reading of the transcript indicates that the Police Sergeant, while prepared to accept the lesser charge of careless driving, dug his heels in on a discharge without conviction and would not accept that was an appropriate penalty.  The Police Sergeant accepted that if Mr Geo had appeared in front of Justices of the Peace it was possible he might have had such a discharge but he was not prepared to accede to it.

[10]     The Judge in his discussion with Mr Geo indicated he would be fined and ultimately when he gave his sentence stated that he was convicted.   So on any objective  assessment  the  treatment  of  Mr  Geo  was  fair  and  the  entry  of  the conviction can have come as no surprise.

[11]     Mr Geo has impressed me as an honest person and I have no doubt he did not fully appreciate just how this might affect him, but nevertheless I see no procedural unfairness.

[12]     The second and more important point is that Mr Geo’s case for discharge without conviction is far from overwhelming.   In ordinary parlance this sort of conviction  would  come  under  the  heading  of  “minor  traffic”.     It  is  widely appreciated in our community that all sorts of worthy individuals can, on occasions, make this sort of error and there is often little, if any, opprobrium that attaches to such a conviction.  I appreciate that it may be personally painful for Mr Geo and his family but I am not satisfied that the circumstances of his family and culture are so unique that this should be treated as a special case.

[13]     The practical consequences seem to be limited to the inconvenience of the learner licence and the extra cost of the insurance.   This is a nuisance and I can understand Mr Geo’s feeling that it is somewhat disproportionate that he should have this degree of interference with his life arising from such an incident and the extra cost.   Nevertheless, it is something of a stretch to say that this inconvenience in relation to his motorcycle licence creates a penalty out of all proportion to the gravity of the offence.

[14]     Certainly it was entirely within the boundaries of the Judge’s discretion to convict Mr Geo and not discharge him.  I discern no error in the Judge’s approach and it cannot be said that the decision was clearly wrong.  What would be regarded as a relatively minor event by most New Zealanders obviously has loomed very large with Mr Geo.  It is unfortunate when a good member of our community feels hard done by our justice system.   However,  I can see no basis upon  which  I could responsibly interfere with the Judge’s decision.

[15]     Therefore my decision is that I will grant leave to appeal, as I can understand why, when Mr Geo struck the difficulty in relation to the motorcycle licence, the full import of what had happened was for the first time fully appreciated by him. However, I do not consider the appeal made out.

Result

[16]     The appeal is dismissed.

……………………………..

Asher J