H v Police HC Wellington CRI-2010-485-29

[2010] NZHC 954

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-29

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 June 2010

Appearances: R Gould for the appellant

J Murdoch for the respondent

Judgment:      15 June 2010 at 10.15am

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Mr H  , pleaded guilty to a charge of operating a vehicle on a road in a manner that caused the vehicle to undergo sustained loss of traction: Section 36A(1)(c) of the Land Transport Act 1998.

[2]      At  sentencing on  3  March  2010,  Mr H    submitted  that  he  should be discharged  without  conviction.    The  Judge  declined  to  do  that,  and  entered  a

conviction against Mr H  , resulting in Mr H   being subject to a mandatory

H V POLICE HC WN CRI-2010-485-29  15 June 2010

period of six months’ disqualification from driving.  Mr H   now appeals against that decision.

Background

[3]      In the early hours of 20 December 2009 Mr H   was the driver of a BMW car in Park Road, Palmerston North.  Mr H   had three passengers in the vehicle with him.  Mr H   drove the car through a gap in a fence on to Ongley Park, a park in Palmerston North owned by the Palmerston North City Council and used on a regular basis for sporting events.  Mr H   then accelerated the vehicle, causing the tyres to lose traction and spin.   At the same time he turned the wheel sharply causing the vehicle to spin in a 360 degree motion.  He continued to accelerate and spin the vehicle out of control, causing considerable damage to the grass on the park. Mr H   was subsequently apprehended by the Police.  I proceed on the basis that, in terms of the definition of “road” contained in s 2 of the Land Transport Act, Ongley Park is a road in that it is “a place to which the public have access, whether as of right or not”.

[4]      Mr H   was initially charged with wilful damage.  The Police were, over Mr H  ’ objection, given leave to withdraw that charge and lay the charge of causing a vehicle to undergo sustained loss of traction.  Mr H   pleaded guilty to that charge.

[5]      In sentencing Mr H  , Judge Mill first referred to the statutory test that Mr H   might be discharged without conviction if the Judge found that the direct or indirect consequences of such a conviction were out of proportion to the gravity of Mr H  ’ offending.  The Judge then considered the seriousness of the offending, Mr H  ’ willingness to pay reparation, that fact that he had completed a welding course and was also involved with supporting his grandparents, and in particular his unwell grandfather.  The Judge observed that the type of work Mr H   had done in the past, and which he was then seeking, generally required a driver’s licence so there would be an impact from a conviction in that regard.  The Judge also observed the possibility of an impact on his ability to provide support to his grandparents if he could not drive.  By the Judge’s observation, these were consequences that naturally

flowed “from the sort of driving that you were doing on this occasion and you must have realised that there would have been consequences”.

[6]      For Mr H  , Ms Gould based this appeal on the proposition that when the gravity of this offending was properly considered, the consequences of a conviction, and in particular the mandatory disqualification that followed, was out of all proportion.  She referred in particular to the nature of the offending itself, which she classified as being immature behaviour.  She also pointed to the early guilty plea, the offer of reparation and the remorse shown by Mr H   in a letter he addressed to the Court.   Ms Gould also pointed to the impact on Mr H   of a period of disqualification, particularly on his ability to find employment and his ability to support his grandparents.

Law

[7]      In R v Hughes, the Court of Appeal held that before the Court can invoke its discretionary power to discharge a person without conviction under s 106 of the Act, it must first be satisfied under s 107 that the disproportionality test has been met.[1]

[1] R v Hughes [2008] NZCA 546.

[8]      The factors to be considered when applying the s 107 disproportionality test were summarised at [41]:

In summary, the parameters within which the disproportionality principle operates   have   not   been   changed   by   s 107.      Application   of   the disproportionality  test  under  s 107  requires  consideration  of  all  relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.  Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.

[9]      Hughes reaffirmed the principle stated in BC v Police that there is no onus on the offender to establish that the disproportionality test has been met under s 107.[2]

Rather, the Court must be satisfied of disproportionality on the information put before it (Hughes at [49] and [53]). It could be expected in the normal run of things that the person would put material before the Court or draw the Judge’s attention to reports which would provide a basis for the Judge to be so satisfied (Hughes at [53]).

[2] BC v Police CRI-2003-485-101, 1 June 2004.

[10]     Hughes affirmed that the proper approach to the disproportionality test under s 107 is three-fold:

a)        Assessing the gravity of the offending; and

b)        Assessing the direct and indirect consequences of conviction; and

c)        Determining whether or not these consequences would be out of all proportion to the gravity of the offending.

Discussion

[11]     Whilst this offending was not of the most serious kind that would attract a charge under s 36A(1)(c), nevertheless it is apparent from the summary of facts that the appellant deliberately drove onto Ongley Park and there skidded and spun his car.   It follows that I do not accept Ms Gould’s submission, made in her written submissions for the purposes of this appeal, that the charge was an inappropriate one.

[12]     I accept, in terms of Delaney v Police,[3] confirmed by the Court of Appeal in Hughes (at [38]), that Mr H ’ guilty plea, and what I accept is his remorse, are relevant to my assessment of the gravity of his offending. Ms Gould submitted that “what the appellant did may readily be classified as “high jinks and immature behaviour in the presence of his peers”, and she contrasted that to his more mature recent behaviour which showed in his care for his grandparents. In that context, I note that the appellant has something of a record of traffic offences and, in fact, has suffered a suspension of licence because of accumulated demerit points. He has, as

recently as 26 February 2010, incurred further demerit points on a charge of being a restricted driver carrying an unauthorised passenger.  That pattern of disregard for traffic laws in my mind shows that this offending cannot simply be explained away as immature high jinks.  I assess its gravity accordingly.

[3] Delaney v Police HC Wellington CRI-2005-484-22-28, 22 April 2005.

[13]     Returning to the direct and indirect consequences of conviction, the particular focus of this appeal is on the consequence of the automatic period of disqualification. I accept that for the appellant, who is obviously a motoring enthusiast, that is an undesirable outcome.   Furthermore, a compulsory period of disqualification will impact on his ability to help with the care of his grandfather.

[14]     In my judgment, however, those consequences are not out of all proportion to the gravity of this offending.  Rather, and as the District Court Judge found, they are an inevitable consequence of such  a conviction, as it is difficult to imagine  an offender who relies on his or her driving licence not suffering some considerable degree of inconvenience from a period of disqualification.  The appellant also has the opportunity to apply for a limited licence.

[15]     This appeal is dismissed accordingly.

“Clifford J”

Solicitors:   Rennie Gould, Barrister, Wellington for the appellant ([email protected]) The Crown Solicitor, Wellington for the respondent ([email protected])