Houry v Police HC Whangarei CRI-2011-488-11
[2011] NZHC 1104
•12 September 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2011-488-11
BETWEEN VICTORIA HOURY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 8 September 2011
Counsel: R C Mark for Appellant
D B Stevens for Respondent
Judgment: 12 September 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 12 September 2011 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS
Richard Mark (Kerikeri) for Appellant
Marsden Woods Inskip & Smith (Whangarei) for Respondent
HOURY V POLICE HC WHA CRI-2011-488-11 12 September 2011
Introduction
[1] The appellant appeals against her conviction for carelessly driving a motor vehicle causing injury.1 Alternatively, she appeals against her sentence, being disqualification from driving for six months, the payment of $2,000 in reparation and a fine of $300.
Facts
[2] In the afternoon of 25 February 2009 the appellant approached an intersection at Franklin Street and State Highway 11, Opua. It was an intersection with which she was familiar. It is a four-way intersection and the approach to it which the appellant took was controlled by a stop sign. The appellant duly stopped at the stop sign. She then drove into the intersection without noticing a car approaching from her right. That car collided with the appellant‟s motor vehicle. The driver of the other car received injuries.
[3] The appellant defended the charge, which went to a defended hearing on
30 June 2010. District Court Judge JL Rota reserved his judgment, which he delivered on 20 December 2010. The Judge convicted the appellant.
[4] Following the release of the reserved judgment the appellant applied for a discharge without conviction and requested the Court to exercise its discretion not to disqualify the appellant from holding or obtaining a driver‟s licence on the basis that “special reasons” relating to the offence existed.2
[5] On 25 January 2011 the Court delivered its reasons for refusing both applications.
Jurisdiction
[6] An appeal from the summary jurisdiction of the District Court to this Court proceeds by way of rehearing. That means that I must review the evidence, hear the submissions on behalf of both parties, and reach my own decisions on the issues. Naturally, it is useful to have regard to the District Court Judge‟s findings and reasoning, but I do not have to give them any particular deference.
Appeal against conviction
[7] The prosecution had to prove that in entering the intersection the appellant was careless. The prosecution also had to prove that a result of that carelessness was injury to the driver of the other vehicle. The test for carelessness is objective and the key question is whether the appellant exercised the degree of care and attention that a
reasonable and prudent driver would exercise in the circumstances.3
[8] The appellant submits that she was not careless. Her grounds are:4
“Weeds at least partially obscured the view to the north from where
the complainant‟s vehicle approached”;
“The impact occurred on or about the centre line and was virtually a
head-on collision”;
“The appellant had exercised care before entering the intersection”.
[9] The appellant amplifies these submissions by arguing that on the evidence there is a reasonable possibility that she exercised requisite care in stopping at the stop sign and in pulling out into the intersection, and that the collision occurred because the appellant‟s vision to the north was at least partially obscured by weeds. Therefore, it is a reasonable possibility that the appellant, when she looked to
confirm whether the way was clear, had her view of the complainant‟s vehicle approaching from the North obscured by the weeds.
[10] The appellant also submits that the complainant‟s driving, in particular not braking immediately, was a causative factor in the accident and that the complainant had had “ample room ... in the six or seven seconds before impact to steer behind the defendant”. I will not consider those submissions further since contributory negligence is not a factor in this offence. The focus is on the level of care exhibited by the appellant.
[11] The Crown submits that the District Court Judge correctly identified the legal test to be applied and concluded on the evidence that the complainant‟s car was there to be seen by the reasonably competent prudent driver in the appellant‟s situation. The Crown quotes the District Court Judge at [28] of his decision as follows:5
The photographs produced permit the view that even with vision „obstructed‟ by verge growth, the complainant‟s white car was there to be seen at a comparatively early time, even by a glimpse coming round the corner at Oromahoe Road. A driver with that knowledge and of the difficulty of the intersection and contracted timeframes for decision would give thought to and gauge the actions of that vehicle including its speed. That vehicle would be travelling with a view aspect to the observer in the defendant‟s position such as to permit a decision about speed and therefore concern about timeframes. All of that was there in this case to be seen and assessed. Likewise of course any traffic advancing from the left up the hill.
[12] The evidence relevant to the state and nature of the intersection and to the actions and observations of the witnesses is as follows:
(a) Denise Reihana
[13] Ms Reihana was the driver of the car which collided with that of the appellant. She was familiar with the road and travelled it probably two or three times a week. The road upon which she was travelling climbed a hill before descending to the intersection. When she got to the top of the hill she saw the appellant‟s vehicle approach the stop sign at the entry to the intersection and stop
there. As Ms Reihana descended the hill towards the intersection she saw the
5 Police v Houry DC Kaikohe CRI-2009-027-726, 20 December 2010.
appellant‟s vehicle begin to enter the intersection “inching her way across the road in front of me”.6 She braked but hit the appellant‟s vehicle. Ms Reihana‟s evidence is encapsulated in the following passage:7
Well I saw her stop at the stop sign from when I was right at the top of the hill and she began inching out straight after she‟d stopped. She came out really slowly, I couldn‟t believe that she was pulling out.
(b) Andrew Sanderson
[14] Mr Sanderson was driving a car directly behind that of the appellant at the time of the accident. He was familiar with the intersection and was unaware that there was any issue as to weeds obstructing the view from the intersection.
(c) Melissa White
[15] Ms White was the police constable tasked with investigating the accident. She arrived shortly after the accident and recalls that the weather was clear, the road was dry and visibility was good.
[16] Constable White took the photographs which were produced as exhibits by the prosecution and took measurements to determine the visibility from the compulsory stop area back up the hill which Ms Reihana was descending. The constable then made careful observations from the stop sign of traffic coming down the hill to gain an appreciation of the visibility of vehicles coming from that direction. The measured distance of visibility was 140 metres. That measurement “was the clear visibility of someone sitting in a vehicle and a vehicle throughout the
whole time travelling down that hill”.8 However, under cross-examination, the
constable gave evidence directly consistent with the contention that plant growth partially obscured the visibility of approaching cars:9
Q. Are you able to say what part – from what part of the car up you
could see when they‟re in that area of the weeds or not?
6 Notes of Evidence taken before Judge JL Rota, at 3.
7 Ibid, at 8.
8 Ibid, at 26.
9 Ibid, at 36.
A. Um, I just watched for similar-coloured cars, like a light-coloured car and I would say from the driver‟s window up so the roof, sort of up from the window.
(d) Tania McGuiness
[17] Ms McGuiness is a local resident who knows the intersection well. She considered the weeds to be a barrier to visibility, making an already dangerous intersection more of a hazard. She took it on herself to cut the weeds down after the accident. Her evidence on the effect of the weeds was:10
Q. So is that photograph 3 where you can see the weeds on the apex behind the barrier, how do you say they affect your visibility?
A. Um, well I have a sedan so when you were looking up you could sort of see a glimpse of the car coming up round the top corner and then it sort of disappeared.
Q. Was the top corner being by Oromohoe Road? A. That‟s correct.
Q. So get a glimpse of the car there, is that right? A. Yeah.
Q. And then what happens?
A. And then it sort of disappeared for a bit and then it came – a moment later it came into view again.
[18] In cross-examination the prosecuting sergeant put this evidence into context. In my view it is a very relevant context and so I will quote the whole of the passage:11
Q. Would you agree that it‟s a fairly busy piece of road?
A. It can be, yes at certain times of the day.
Q. And likewise coming up Franklin Road when the ferry gets in,
there‟s car after car after car?
A. There can be, yes.
Q. And there‟s a school just down the road from your place?
10 Ibid, at 38.
11 Ibid, at 39-40.
A. That‟s correct.
Q. So early in the morning, late in the afternoon it‟s quite a busy piece
of road?
A. Ah, it can be and, you know there‟s a lot of people going to work at
certain times, yeah.
Q. Would you agree that it‟s an intersection that needs considerable care
to negotiate safely?
A. Um, it certainly needs care, yes.
Q. There wouldn‟t be crashed there every day, would there?
A. Ah, not that I‟m aware of, no.
Q. Approximately how many crashes would you have heard about this year?
A. Ah, none.
Q. So despite all that traffic people still negotiate the intersection on a reasonably successful basis regularly?
A. I guess so yes.
Q. Taking considerable care as you would if you were travelling through the intersection?
A. Mhm.
Q. In your evidence you said you see a glimpse of the car when it comes past Oromohoe Road entrance?
A. At that time you did, yes.
Q. And depending on how big the vehicle was, it may have gone out of sight behind the weeds?
A. That‟s correct, yes.
Q. I take it it would be obvious if it was a bigger vehicle or a higher
vehicle, it wouldn‟t be obstructed by the weeds? A. I would agree yes.
Q. Prior to those weeds being removed, how did you negotiate through that intersection safely?
A. Um, I just took my time I guess, just, yeah. And I did hope for the best on the odd occasion, it did make me nervous going through there for a bit.
Q. For example, would you move through the intersection if you‟d have
seen a car prior to the weed patch?
A. No.
Q. You would wait? A. Yes.
Q. What about if the vehicle was coming past the weed patch, getting closer to the intersection?
A. I‟d certainly wait, yes.
(e) Victoria Houry
[19] Ms Houry is the appellant. She gave evidence that she knows the intersection well, crossing it four times a day during school term and week days, if not more. On the day in question she picked up her children from school and came up to the stop sign. Her evidence was that she stopped at the stop sign for four or five seconds and checked left and right twice because there are two intersections to be aware of. The car in which she and her family were travelling was a Volvo XC90. That is a vehicle, as the photographs confirm, which is commonly described as a SUV. It is higher off the ground than an ordinary sedan. The appellant described the vehicle as being “a very heavy car” and one which does not pull away quickly from an intersection. Her evidence was “you really have to slam your foot on the accelerator to get it moving quickly” and that she moved off quite slowly into the intersection. She did not see the other vehicle until she had crossed the road and was turning up
the hill.12
[20] The appellant gave evidence that her visibility was restricted by the weeds and that the area of the stop sign is in a dip which further cuts vision up the hill.
[21] The standard of care to be exercised by a driver entering an intersection is not a superhuman one. Accidents can occur even where a driver has exercised the care to be expected of a reasonably competent and prudent driver. Sometimes, a driver can drive in a way that makes nugatory the reasonable precautions of another driver. In this case the appellant gave evidence that Ms Reihana was driving very fast and
came around the corner with half her car on the wrong side of the road.13
Ms Reihana denied that and Mr Sanderson, who saw the accident, said that
Ms Reihana‟s car was on its “own side of the road” when the two cars hit.14
[22] There is no crash investigation report. The physical evidence is that one wheel of Ms Reihana‟s car was over the centre line when the vehicles came to rest. From the photographs it had clearly slewed to its left on impact so that it ended up facing obliquely towards the other lane. The speed limit for the area was 80 kmh. Ms Reihana put her speed at “about 50 or 60”.15
[23] In my view, the evidence establishes that this was a difficult intersection. It required a reasonably competent and prudent motorist to take real care in crossing it. The weeds did partially obscure traffic coming down the hill towards it. The appellant was in a heavy and relatively high vehicle. She stopped at the intersection and looked for oncoming traffic. The relevant length of view was only 140 metres, although about 70 metres away weeds could obscure the view of cars below the level of the windows. The appellant failed to see Ms Reihana‟s vehicle (although Ms Reihana had had the appellant‟s vehicle under observation from the top of the hill 140 metres away and throughout her descent of the hill). The appellant entered the intersection slowly. She did not see Ms Reihana‟s vehicle until the last moment.
[24] There is a reasonable possibility that Ms Reihana was driving close to the centre line and that she was driving faster than she reported. However, evaluating the evidence as a whole I do not find there was a reasonable possibility that she was across the centre line and exceeding the speed limit prior to the collision. I accept that her speed was low at the top of the hill, that there were only 140 metres to the point of impact from the top of the hill, and that she was braking heavily for part of that distance.
[25] The appellant was very familiar with the intersection. She knew its dangers. She traversed it several times a day for prolonged periods. As did others. It was a busy intersection – but there was no inevitability that crashes would occur despite due care being taken.
[26] In my view, the Judge was justified in coming to the conclusion he did at [28] of his decision.16 The obligation of a driver halted at a stop sign is to ensure that the way is clear before proceeding into the intersection. If the view to the right is partially obscured by plants growing on the road verge, then a reasonably competent prudent driver has to take greater than normal care to ensure that the growth is not obscuring an oncoming car. In other words, a reasonably competent prudent driver
cannot proceed on the assumption that nothing is coming. Equally, where the visible distance to oncoming traffic is limited, it is prudent to cross the near lane in as short a period of time as reasonably possible.
[27] Having read the evidence and listened to the submissions of counsel, I accept that the District Court Judge was entitled to find that the verge growth, as a reasonable possibility, obscured the appellant‟s view of the road to the north at least partially, but that that did not mean that in the circumstances the appellant drove to the standard of the reasonably competent and prudent driver.
[28] The appeal against conviction is dismissed.
Appeal against sentence
(a) Undue delay
[29] The first ground of appeal against sentence is that no conviction should have been entered because of the delay in getting to that point. That is to say, the delay between the accident occurring on 25 February 2009 and the final sentencing on
25 January 2011 (a period of 23 months) breached the complainant‟s right to be tried without undue delay.17
[30] Delay is ascertained from the cumulative effect of the proceedings. In
R v Williams Wilson J discussed the nature of the right to be tried without undue delay:18
16 Quoted above at [11].
17 New Zealand Bill of Rights Act 1990, s 25(b).
[12] Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. … [T]he obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.
[31] In cases where undue delay is found the remedy must be a proportionate response:19
[18] The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If, however, the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.
[32] In the present case the relevant dates are as follows:
10 March 2009: first call.
23 July 2009: matter set for defended hearing. Adjourned at
appellant‟s request – counsel conflicted with trial dates.
30 June 2010: defended hearing.
20 December 2010: judgment delivered (guilty).
21 December 2010: hearing of the appellant‟s applications for
discharge without conviction and no period of disqualification.
25 January 2011: judgment delivered refusing applications.
19 Ibid, at [18] (footnotes omitted).
[33] Counsel advised me that on two occasions the case was in the list for trial but was not reached in the time available.
[34] This timeframe is not inordinate and does not attract the criticism levied against the delay in Martin v Tauranga District Court.20 The Court set the matter down for a defended hearing with commendable celerity. The adjournment was at the appellant‟s request. A delay of 11 months from that point to a defended hearing is lengthy but not unusual for a busy District Court. The subsequent period of six months before delivery of the judgment was lengthy and unfortunate. But in my
judgment it does not cross a threshold requiring me to intervene to protect the appellant‟s rights under the New Zealand Bill of Rights Act. I might have taken a different view if there had been no application for adjournment.
[35] This ground of appeal is dismissed.
(b) Discharge without conviction
[36] The second ground of appeal is that the District Court Judge should have discharged the appellant without conviction pursuant to s 106 of the Sentencing Act
2002. This amounts to a complaint that the sentence that was imposed was manifestly excessive.
[37] A discharge without conviction is at the discretion of the sentencing Judge.21
As such, I will only overturn it if I conclude that the failure to exercise the discretion as the appellant requested was plainly wrong.
[38] The disproportionality test in s 107 is a gateway or precondition to the exercise of the s 106 discretion:22
20 Martin v Tauranga District Court [1995] 2 NZLR 419 (CA); see also Department of Social
Welfare v Stewart [1990] 1 NZLR 697 (HC) at 713.
21 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA) at [8]–[12].
22 Ibid, at [8].
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[39] I also note that the complainant in this case suffered moderate facial injuries as a result of the collision including broken teeth, bruising, a broken nose, and cuts requiring 18 stitches.
[40] I accept the appellant‟s submission as to the approach that a sentencing Judge
should take when an application has been made under s 106 of the Sentencing Act:23
There is therefore a three-step approach to deal with applications for discharge. This has been affirmed in R v Hughes [2008] NZCA 546 and Blythe v R [2011] NZCA 190.
(1) The gravity of the offending should be first determined;
(2) The consequences of the conviction should then be identified;
(3) The Court must then consider whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
[41] Here the appellant submits careless use of a motor vehicle is in itself a relatively minor offence. I accept that. However, here the charge is not careless use by itself but careless use which caused injury. That is an offence of a more serious type altogether. This is acknowledged by the appellant who nevertheless submits:
(a) The Judge and the Police accepted that the defendant‟s culpability
was low;
(b) The offence was a single incident;
(c) The appellant has had no prior convictions; (d) The offending was out of character;
(e) There was no likelihood of reoffending;
23 Submissions on behalf of the appellant, at [45].
(f) There were no aggravating factors as listed in s 9 of the Sentencing
Act 2002;
(g) The payment of reparation was agreed by the appellant.
[42] Central to the appellant‟s argument was the submission that on the evidence there was at least a reasonable possibility that the accident was caused by the appellant‟s vision prior to entering the intersection being at least partially obscured by vegetation on the road verge.
[43] The appellant also submitted that although injury was caused, the extent of the injuries was arguably contributed to by the complainant‟s failure to wear a seatbelt properly.
[44] I now come to the heart of the appeal. That is to say, the consequences of conviction for this appellant. The appellant is not a New Zealand citizen. She had applied to become a New Zealand citizen prior to the accident. Essentially, by operation of s 9A(1)(c) of the Citizenship Act 1977 a person cannot be granted citizenship in the usual way if within the preceding three years the person was convicted of an offence but did not receive a sentence of imprisonment. Subsection (2) of that section gives the Minister a discretion nevertheless to authorise a grant of citizenship to a person who otherwise meets the normal requirements “if satisfied that there are exceptional circumstances relating to the conviction such that a grant of citizenship should not be precluded”.
[45] The appellant submits that:24
The appellant would by now have been granted citizenship but for the conviction. At best, she will have to wait at least three years before she can apply for citizenship again, unless the Minister finds that there are special reasons relating to the conviction. With a conviction, there is now no assurance that she will be granted citizenship.
[46] The Crown submits that the District Court Judge, when assessing the gravity of the offending, had to pay regard to the injuries received by the complainant.
24 Ibid, at [58].
While acknowledging that the culpability of the appellant was low (her driving was careless, not dangerous) and partially obscured vision was a mitigating factor, it nevertheless supports the District Court Judge‟s views25 that there is little, if any, stigma attached to a conviction for careless use of a motor vehicle, even use which causes injury. The District Court Judge noted that there was no requirement that the conviction would delay any grant of citizenship for up to three years and he was satisfied that there would be no substantial other disadvantages to the appellant in the delay or the absence of obtaining a citizenship certificate given that she enjoys all of
the benefits of being a permanent resident. In other words, the District Court Judge took the view that in the appellant‟s case the lack of a citizenship certificate was frustrating but not deleterious to her.
[47] Having read the notes of evidence and considered the District Court Judge‟s approach to this matter, I cannot find that he exercised his discretion wrongly. It might very well have been different if the charge on which the appellant was convicted was careless use of a motor vehicle simpliciter. But the fact is that another person received quite serious injuries as a result of the appellant‟s carelessness. To hold that the appellant should not suffer conviction for her actions and its consequences would have, in my view, required another level of consequence to her arising out of a delay in receiving her status as a citizen. Where the only consequence which has been pointed to is the probable delay then the District Court Judge was perfectly entitled to find that this consequence would not be out of all
proportion to the gravity of the offence.26 In response to the appellant‟s claim that a
conviction may later affect her citizenship application, I note that the Minister retains discretion and it is appropriate that the decision is made with knowledge of all the relevant information.27
[48] This ground of appeal is dismissed.
25 At [20] and [21].
26 In submissions before me the point was made that New Zealand citizenship confers right of abode in Australia. The appellant is therefore deprived of that right. That is correct, but would only be operative if the appellant intended to emigrate.
27 Roberts v Police (1989) 5 CRNZ 34 (HC) at 36–37; Liang v Police HC Wellington AP38/02,
16 April 2003, Hammond J.
[49] I note that because the appellant‟s period of disqualification has now finished, the appellant has abandoned her appeal against the refusal of the District Court Judge to grant her application for an order that no disqualification be imposed.
Outcome
[50] I have sympathy for the appellant‟s position. Her driving was not very careless and if Ms Reihana had been using her seatbelt properly her injuries might have been much reduced. The appellant then had to endure the uncertainty and anxiety of a Court process which took more time than it should to reach a decision on her case. In particular, it should not have taken six months for the District Court Judge to make his decision. The appellant could have made a compelling case for a discharge without conviction in these circumstances if the s 107 guidance on proportionality applied. But I cannot say that the District Court Judge was wrong in his exercise of his discretion.
[51] In accordance with the above, therefore, the appeals against conviction and sentence are dismissed.
Brewer J
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