H v Police CRI 2010-409-30 HC Christchurch

[2010] NZHC 479

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000030

H

Appellant

v

POLICE

Respondent

Hearing:         15 April 2010

Counsel:         K G Hales for Appellant

D M Jackson for Respondent

Judgment:      15 April 2010

JUDGMENT OF FOGARTY J

[1]      The appellant appeals against a sentence imposed by Judge Somerville in the District Court at Rangiora on 27 January 2010.  She had pleaded guilty to one charge of intentional damage under s 11(1)(a) of the Summary Offences Act 1981.  She was sentenced to six months supervision and disqualified from driving for a period of six months.

[2]      She appeals the sentence on the grounds that it was manifestly excessive given the nature of the charge and that the disqualification was not available to the

Judge as a motor vehicle was not used in the offending.

H V POLICE  HC CHCH CRI 2010-409-000030  15 April 2010

[3]      Mr Hales, wisely, did not pursue arguing against the six months supervision charge, as having read his argument and that of the Crown, before the hearing, I was not of the view that it would be open to me as an appellate Judge to disturb that sentence.   So the hearing focussed on whether or not the ability to disqualify was open to the Judge.

[4]      Section 80 of the Land Transport Act 1998 provides:

80       General penalty of disqualification may be imposed if offence involves road safety

(1)    If a person is convicted of an offence against this Act, and the court is satisfied that the offence relates to road safety, the court may order that the person be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.

(2)    The power conferred by subsection (1) is in addition to, and does not limit, any other powers of the court.

[5]      Before a disqualification can be imposed the Court must be satisfied that the offence “relates to road safety”.   Mr Jackson, helpfully, has drawn my attention to the  authorities  examining  that.    The  Court  of  Appeal  in  a  number  of  cases, particularly Husband v Napier City Council [1979] 1 NZLR 317 has accepted that the expression does not easily fit within practical boundaries. It raises, from my perspective, an issue of degree. A charge was originally laid against the appellant under the Land Transport Act but not withdrawn.

[6]      The facts are materially disputed which is an added complexity to this appeal. What is agreed is that the appellant was involved in a row with her boyfriend.  He had disappeared and she went out in a car looking for him.  She did chase him in a car.  In her own statement she said she drove at maybe 60-70 kilometres per hour.  It is not entirely clear from her statement whether that was in a 50 kilometre limit zone or an 80 kilometre zone.  It may well have been at least partly in a 50 kilometre zone. These events were taking place on the outskirts of Kaiapoi.  She threw two bottles at his car.  Mr Hales’ instructions are that she was not in the car at the time she threw the bottles.    The second bottle broke the rear windscreen of his car.

[7]      What is clear, it seems to me, is that on both occasions when the bottles were thrown she was stopped and parked on the road.  She may or may not have been in the car, and particularly on the second occasion when she threw the bottle which smashed the rear windscreen.

[8]      On these facts it is at the margins to say that the offence which was pursued by the Crown of intentional damage was an offence which relates to road safety.  She has now in fact not been able to drive for three months.  She has lost her employment as a result.

[9]      I am of the view, somewhat pragmatically, that there is a real doubt as to whether or not this disqualification fits within the purpose of s 81 and that is to a degree reinforced by the fact that the traffic charge was withdrawn.

[10]     For these reasons the appeal against sentence succeeds to the extent of the order for disqualification being set aside.

[11]     The appellant is to report to the Stanmore Road Community Probation Office next Monday, 19 April, at 10 am, to commence her sentence of supervision.

Solicitors:

Helmore Bowron & Scott, Rangiora, for Appellant

Raymond Donnelly & Co, Christchurch, for Crown