Gifkins v Police
[2018] NZHC 1455
•18 June 2018
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2018-443-5
[2018] NZHC 1455
DAMIEN JOHN GIFKINS v
NEW ZEALAND POLICE
Hearing: 12 June 2018 Appearances:
M S Boyd for the appellant
C E Clarke for the respondent
Judgment:
18 June 2018
JUDGMENT OF CULL J
[1] Mr Gifkins appeals his convictions and sentence on two charges of failing to remain stopped for police (as a third and subsequent charge) and failing to stop for police (as a third and subsequent charge) under s 52 of the Land Transport Act 1998.1 He was sentenced on each charge to three months’ imprisonment, to be served concurrently.2
[2] The Judge also imposed 12 months’ disqualification from driving on each charge, to be served concurrently on each other, but cumulative on the 13 months’ disqualification given for the charge of driving while suspended. The sentence on the two charges under appeal aligned with the maximum penalties available under s 52(4).
1 Land Transport Act 1998, ss 52(1)(c) and 52(4). Subsection (4) has subsequently been repealed as of 11 August 2017 by the Land Transport Amendment Act 2017, s 40, however, these offences occurred on 14 October 2016, prior to this change.
2 New Zealand Police v Gifkins [2017] NZDC 8373.
GIFKINS v NEW ZEALAND POLICE [2018] NZHC 1455 [18 June 2018]
[3]The focus of this appeal is that Mr Gifkin was sentenced under ss 52(1)(c) and
(4) of the Land Transport Act, as a person who has been convicted twice previously, with this being his third or subsequent offence.
[4] Both convictions related to offences on 13 October 2016. The District Court Judge, as part of convicting and sentencing the defendant on a total of nine charges, imposed the sentences of imprisonment and disqualification on the two contested charges as set out above.
The ground of appeal
[5] Mr Gifkins appeals his conviction and the consequential disqualification on the two charges under appeal, on the grounds that a miscarriage of justice has occurred. Mr Gifkins had one previous conviction for failing to stop or remain stopped at the time the convictions were entered on 20 December 2016. Mr Gifkins contends that the charges of failing to stop (as a third and subsequent offence) and failing to remain stopped (as a third and subsequent offence) should be quashed.
[6] As Mr Gifkins has one previous conviction under s 114 of the Land Transport Act only, for failing to stop in March 2016, he should have been charged under s 52(1)(c) and (3), not under s 52(4). These were not his “third or subsequent” offences. In short, Mr Gifkins has been convicted of more serious offences than he committed. His period of disqualification on the substituted charges should be three months concurrently.3
[7] The Crown agrees that the appeal should be allowed and Mr Gifkins should be convicted and discharged. The Crown submitted that this Court should impose a disqualification period of six months from driving on each charge, to be served concurrently on each other.
3 Land Transport Act 1998, s 52(3).
Relevant legislation
[8] The relevant provisions that Mr Gifkins was charged with under the Land Transport Act are set out below:4
52Contravening notices, requirements, etc, given or imposed by enforcement officers
(1)A person commits an offence if the person—
…
(c) Fails or refuses to comply with any lawful requirement, direction, notice, request, or prohibition given to or imposed on him or her under this Act by an enforcement officer or a dangerous goods enforcement officer; or
…
(2)The maximum penalty on conviction for an offence against subsection
(1) is a fine not exceeding $10,000.
(3)If a person is convicted of an offence against section 114 and has previously been convicted of an offence against section 114 or, while failing to comply with section 114, exceeded the applicable speed limit or operated a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver licence for 3 months.
(4)If a person is convicted for a third or subsequent offence against section 114, —
(a) the maximum penalty is imprisonment for a term not exceeding 3 months; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year.
(5)A disqualification ordered under subsection (3) or (4) is cumulative on, and not concurrent with, any other disqualification that a court may order in respect of the incident that gave rise to the person's conviction under section 114.
…
[9] It is clear that a miscarriage of justice has occurred.5 Mr Gifkins has been convicted of more serious offences than he committed.
4 As applied on 14 October 2016 when Mr Gifkins committed the offences. See above n 1.
5 Criminal Procedure Act 2011, s 232.
[10] Under s 52(3), the Court must order a disqualification period of three months. There does not appear to be any discretion to award a disqualification period of less or more than this mandatory three-month period.
[11] At the hearing, the Crown agreed that the available penalty for the substituted charges is three months, consistent with the mandatory three-month period under s 52(3).
Result
[12] The convictions and sentences for the offences of failing to stop and failing to remain stopped under s 52(1)(c) and (4) of the Land Transport Act are quashed.
[13] The two charges are substituted for charges of failing to stop and failing to remain stopped under s 52(1)(c) and (3) of the Land Transport Act.
[14]Mr Gifkins is convicted and discharged on the two substituted charges.
[15] As required under s 52(3) of the Land Transport Act,6 Mr Gifkins is disqualified for three months on each charge concurrently, but cumulative to the 13- month disqualification on the charge of driving while suspended.
Cull J
Solicitors:
Boyd Law, New Plymouth
Crown Solicitor, New Plymouth
6 Sentencing Act 2002, s 108(2)(c).
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