Homer v Police
[2023] NZHC 1761
•29 June 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-000069
[2023] NZHC 1761
BETWEEN ROSS STANLEY HOMER
Appellant
AND
NEW ZEALAND POLICE
Defendant
Hearing: 29 June 2023 Appearances:
H V Bennett for the Appellant
G E R Alloway for the Respondent
Judgment:
29 June 2023
ORAL JUDGMENT OF GENDALL J
Introduction
[1] On 4 April 2023 the appellant, Mr Ross Homer appeared before Judge Mabey KC in the Christchurch District Court for sentencing,1 on a charge of dangerous driving to which he had pleaded guilty. Mr Homer was sentenced to pay $2,000 in reparation and was disqualified from driving for a period of six months.2
[2] Mr Homer now appeals the conviction and sentence on the basis that the sentencing hearing was flawed and resulted in a miscarriage of justice.
1 Police v Homer [2023] NZDC 7014 [Sentencing Notes].
2 Land Transport Act 1998, s 35(1)(b) carries a maximum penalty of three months’ imprisonment or a fine of $4,500 and the court must order the person to be disqualified from driving for a period of six months or more.
ROSS STANLEY HOMER v NEW ZEALAND POLICE [2023] NZHC 1761 [29 June 2023]
Facts
[3] At about 10 am on 5 October 2022, Mr Homer was driving his car along Blenheim Road, Christchurch. It was raining heavily. The road was slippery and wet. Traffic density at the time was medium. The road layout on the particular section of the road in question is such that there are two lanes in either direction, separated by a raised traffic island.
[4] At one point, Mr Homer was cut off by another vehicle. Effectively, the other driver changed lanes and drove directly in front of Mr Homer’s vehicle. In response, Mr Homer changed lanes and drove directly next to the other vehicle. He then accelerated in an attempt to get in front of the other vehicle. He accelerated at such a rate that he lost control. His car slid on the road for about 100 metres, mounting the raised traffic island and crossing onto the opposite side of the road. Once there, Mr Homer’s car collided with one travelling in the opposite direction, causing it to strike another vehicle.
[5]Mr Homer has not previously been before the courts. He is 74 years old.
District Court’s decision
[6] Judge Mabey, in the Christchurch District Court, established the circumstances of the offender and the offending. This included Mr Homer’s age at 74, the fact he had no previous convictions, the motivation behind the offending and the financial consequences of the offending. The Judge came to the conclusion that Mr Homer’s offending was not motivated by a desire to be a “boy-racer trying to show who has got all the grunt” but was merely careless.3
[7] Based on this assessment, the Judge expressed concern about the charging decision. He considered the offending warranted a lesser charge of careless driving than the charge Mr Homer faced, of dangerous driving. However, because Mr Homer had pleaded guilty to dangerous driving, the Judge said he was compelled to disqualify him from driving for a period of six months, which he did. The Judge did not fine
3 Sentencing Notes, above n 1, at [14].
Mr Homer but ordered emotional harm payments of $1,000 each to both victims, these totalling $2,000.
[8] In a Minute dated 19 April 2023, Judge Mabey further clarified the position. He repeated his concern about the appropriateness of the charge. He then noted that he gave the prosecuting sergeant an opportunity to amend the charge. He did not realise at the time it seems that the sergeant had expressed a willingness to take that course of action. In his Minute, Judge Mabey noted that if the sergeant had indeed amended the charge to one of careless driving, that would have resulted in a vacation of the guilty plea to the dangerous driving and a conviction for the substituted charge of careless driving instead. And, in that case, the Judge said he would not have disqualified Mr Homer from driving.
Grounds of appeal
[9] Mr Homer appeals on the ground that the District Court Judge erred by not allowing him an opportunity to vacate his guilty plea and to enter a plea to a lesser charge of careless driving. This resulted in a miscarriage of justice.
Submissions
For the appellant
[10] Ms Bennett, for the appellant, submits that the sentencing process was flawed such that a miscarriage of justice has occurred here. The Judge recognised that Mr Homer had been charged with a more serious offence than the offending warranted, he invited the prosecution to amend the charge, but he failed to action it once the prosecution indicated it would be willing to reduce the charge to one of careless driving. The Judge, it is said, did not allow Mr Homer an opportunity to speak with counsel nor, it appears, was either counsel given an opportunity to address the Court on the issue. The way the sentencing exercise took place meant the interests of justice were not met.
[11] Judge Mabey it seems did have a discretion to vacate Mr Homer’s guilty plea up to the point he was sentenced. The Judge accepted that the interests of justice
required Mr Homer’s charge to be amended to the reduced careless driving charge but, Ms Bennett submits, the Judge wrongly exercised his discretion to refuse Mr Homer to vacate his guilty plea. This, she maintained, resulted in a miscarriage of justice. The Judge, Ms Bennett noted, ultimately bears the responsibility of ensuring justice is done and here, she says, that responsibility was not discharged.
[12] Accordingly, Ms Bennett contends this Court, on appeal, should quash the conviction and in doing so bring matters to an end. This, she says, can be achieved by either quashing the conviction for dangerous driving and entering a conviction for careless driving in its place, or by remitting the matter back to the District Court.
For the respondent
[13] Mr Alloway, for the respondent, maintains that no miscarriage of justice has occurred here because the charge of dangerous driving fit the proof which was before the District Court and Mr Homer’s guilty plea was entered following competent legal advice.
[14] The respondent says also that Mr Homer’s comments in a discussion with Judge Mabey during the sentencing were not made under oath and therefore are quite untested. Even if taken to be true, Mr Alloway says they do not necessarily mean that Mr Homer’s offending cannot be characterised as dangerous driving. To the contrary, Mr Homer’s offending was objectively dangerous, Mr Alloway suggests, and it was caused by some fault on Mr Homer’s part, satisfying the elements of the offence of dangerous driving.
[15] Therefore, the police position, Mr Alloway confirms, is that the appeal should be dismissed.
Relevant law
[16] Appeals against conviction are brought under ss 229 and 232 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that a
miscarriage of justice has occurred for any reason.4 A miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to or affecting the trial that:5
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[17]“Trial” includes a proceeding in which the appellant pleaded guilty.6
Analysis
[18] I consider overall that a miscarriage of justice has occurred in this case. Mr Homer was originally charged with reckless driving. His counsel had this charge reduced to one of dangerous driving but Judge Mabey’s clear assessment was that the offending warranted an even lesser charge of careless driving. The prosecuting sergeant representing the police at sentencing, as I understand it, agreed that Mr Homer’s conduct justified the lesser charge of careless driving. He indicated a willingness to amend the charge. I accept from Judge Mabey’s later minute that for some reason—no doubt, in part, as a result of the time pressures and generally the high workload of the District Court—the prosecuting sergeant’s intention to amend may not have been communicated sufficiently clearly to the Judge.
[19] When an application is made to withdraw a guilty plea before sentence, the touchstone is whether the interests of justice require leave to be granted.7 In the circumstances I have described above, it was plainly in the interests of justice for Mr Homer to have been granted leave to withdraw his guilty plea to the charge of dangerous driving. I note the proceedings were the first time Mr Homer had appeared before the courts. Understandably, he would have been unfamiliar with the process. As I have noted, he is 74 years old. It seems he was not afforded an opportunity to consult with counsel after Judge Mabey’s comments about the appropriateness of the charge. And neither Ms Trinder, counsel at the time for Mr Homer, nor Sergeant Friese
4 Criminal Procedure Act 2011, s 232(2)(a) and (c).
5 Section 232(4).
6 Section 232(5).
7 Marino v Police HC Napier CRI-2007-441-27, 14 May 2008 at [9]; R v Ripia [1985] 1 NZLR 122 at 127; R v Turrall [1968] NZLR 312 at 315; and R v Kihi CA395/03 25 March 2004.
for the police were given an opportunity to be heard on the issue. While the Criminal Procedure Act does not stipulate any particular procedure for the making of an application to withdraw a guilty plea under s 115, as a matter of natural justice, the court must give both parties a chance to be heard.8
[20] I agree with Ms Bennett that this matter has gone on long enough considering the relatively low seriousness of the offending. Mr Homer has paid the emotional harm reparation payments ordered amounting to $2,000. I note also that he expressed a willingness to engage in restorative justice processes but that was deemed not to be appropriate here. I do not consider any useful purpose will be served by remitting the matter back to the District Court. Rather, I adopt the Court’s powers under ss 233 and 234(4) of the Criminal Procedure Act 2011 and now quash the conviction for dangerous driving and substitute it with a charge and a conviction for one of careless driving.
Result
[21]This appeal is allowed.
[22] I order that Mr Homer’s conviction on the charge of dangerous driving be quashed and substituted with a conviction on a substituted charge of careless driving. And, as to his sentence, the six month period of disqualification from driving is now set aside and a further order is now made to this effect. The emotional harm payments already made remain unaffected.
Gendall J
Solicitors:
Malley & Co for the Appellant
Raymond Donnelly & Co for the Respondent
8 Attorney-General v District Court at Manukau [2017] NZHC 1958, at [17].
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