J v Police HC Rotorua CRI 2007 470 29
[2007] NZHC 1159
•30 October 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2007 470 29
BETWEEN J
Appellant
AND POLICE Respondent
Hearing: 30 October 2007
Counsel: Appellant in person, with Mr Paul Castricum
Julie O'Brien for Crown
Judgment: 30 October 2007
[ORAL] JUDGMENT OF WILLIAMS J
Appeal against sentence of $800 reparation and 6 months’ disqualification for careless driving causing injury.
The appeal is allowed. The reparation order is reduced to $100 payable at
$10.00 per week from 21 January 2008 and the term of the disqualification
abbreviated so that it concludes on 18 November 2007.
Solicitors:
Crown Solicitor (Ms Julie O’Brien), Tauranga
Copy for:
Ms Karan J , 103 Greerton Road, Gate Pa, Tauranga
Community Magistrate, R Paterson
Mr Paul Castricum
J V POLICE HC ROT CRI 2007 470 29 30 October 2007
Introduction
[1] What seemed to be a relatively uncomplicated and straightforward appeal against a conviction for careless driving causing injury, has turned into quite a difficult matter to deal with in the sense of trying to achieve a sense of fairness and justice for all involved.
Background facts
[2] The background is that Ms J , a Chilean solo mother with two children aged 3 and 6, was driving her car on 7 May 2007 at the intersection of Burrows Street and Fourteenth Avenue in Tauranga, an intersection governed by a Give Way sign. As the Summary of Facts said, at about the time, 8:30 in the morning, the sun was low in the sky and shining directly into Ms J ’ eyes. No doubt as a result that, she failed to see a 17-year-old cyclist, Mr Paul Hempstalk, who was approaching the intersection from her right. She drove over the Give Way sign, giving Mr Hempstalk no opportunity to avoid a collision.
[3] As a result of the collision, the victim impact statement makes clear that Mr Hempstalk has suffered quite considerably. His collar bone was fractured in four places. He had medical treatment and suffered consequences as sleep disturbances and the like. He missed his school exams and may therefore have difficulty in qualifying for university. He lost a fee he had paid to play soccer. He had to buy some new clothing. He had enrolled in a defensive driving course and was unable to complete that, and his parents had to drive him around, with extra wear and tear and fuel costs for them.
District Court hearing
[4] Ms J pleaded guilty in the District Court and the Community Magistrate ordered her to pay $800 reparation to Mr Hempstalk at $20 per week with the first payment due on 3 August 2007. The magistrate also disqualified Ms J for the minimum period required by the Land Transport Act 1998 s
38(2)(b), namely for six months commencing from the day of the conviction, 19 July
2007.
[5] One of the matters that sets the present appeal apart is that prior to the hearing in the District Court the Police had been prepared to consider Ms J for diversion. That occurred on her first appearance, namely 6 June 2007. However the Police wrote to Ms J on 8 June 2007 saying that she was ineligible for diversion because of the mandatory disqualification.
Appellant’s personal circumstances
[6] For a person whose first language was English that may have been warning enough, but Ms J is Chilean, English is her second language, and although she has been assisted throughout by Mr Castricum, a neighbour, he said today that they went to the District Court on 19 July 2007 still under the impression that diversion may have been available or at least that disqualification may have been avoided.
[7] The particular problem as far as disqualification is concerned is that Ms J is a solo mother who works at night from 11pm to 7am, about 8 kms distant from her home. She drives to and from work because, of course, there is no public transport at that hour. When she returns home, she prepares the children for school and drives them there, again about 8 kms each way, and picks them up in the afternoon.
[8] Although as Ms O’Brien has said in her submissions there is power for a limited licence to be granted, Ms O’Brien also accepts that the services of a lawyer is necessarily required in preparing papers in support of such an application. Ms J has no money to pay for a lawyer. Trying to get legal aid, if she qualifies, would be difficult and then there is the filing fee, where she would have to seek a waiver.
[9] All of that, effectively, makes the prospect of a limited licence an impossibility for the appellant.
[10] There are also problems as far as the reparation order is concerned. Ms J earns about $500 per week. She lives in rented accommodation. As mentioned, she is solely responsible for trying to feed, clothe and house herself and her children and all of that makes fair resolution of this appeal a particularly difficult task.
[11] The appeal was not conducted in the conventional way. It was conducted essentially in a conversation between Mr Castricum, Ms O’Brien and the Bench. Ms O’Brien, it is fair to note, has been especially helpful in trying to assist in resolution of the matter.
[12] There might have been a possibility of treating the situation as one where the plea of guilty was entered on a wrong premise, namely the mistaken assumption that diversion was available. But that would only have resulted in the matter going back to the District Court and with considerable delay and anxieties on the part of Ms J and, of course, Mr Hempstalk. Everyone agreed that was an undesirable prospect.
[13] There are two further complicating factors.
[14] The first of those is that there have been no payments on account of the reparation simply because Ms J is unable to meet the payments of $20 per week and thought, erroneously, they might have been suspended in any case once her appeal was filed on 24 July 2007.
[15] The second is, as Mr Castricum responsibly acknowledged, although Ms J ’ disqualification was not suspended pending the hearing of the appeal, she has continued to drive ever since 19 July simply in order to survive.
[16] What then is to be done?
[17] As Ms O’Brien responsibly acknowledges, this might conceivably have been seen as a case where the sun-strike on the morning of the offence could perhaps have given Ms J either a defence to the charge or at least provided mitigating circumstances as far as the outcome was concerned.
[18] Seen in that light, and having regard to Ms J ’ personal circumstances, as remarked to Mr Castricum, Ms J should meet some payment and experience some disqualification as a result of an incident which caused serious injuries and significant loss to Mr Hempstalk.
[19] Mr Hempstalk and his family will be penalized by the result that is about to be announced, and it is unfortunate in that regard, but the Court is entitled to take Ms J ’ personal circumstances into account in trying to reach a just solution.
[20] In those circumstances, what is intended is that having regard to Ms J ’
straitened personal financial situation, the reparation order will be reduced from
$800 to $100 and it is to be paid at the rate of $10 per week commencing on
21 January 2008. That date is deliberately chosen to enable Ms J to meet the inevitable costs of Christmas and the vacation but still require her to make reasonable payments to Mr Hempstalk in partial recompense for what he and his family have suffered.
[21] As far as the disqualification is concerned, as remarked to Mr Castricum, Ms J has to undergo some period of disqualification. It is accepted that any period of disqualification will cause her and her children significant inconvenience. But it is to be hoped – and Mr Castricum accepted this was a possibility – that friends, neighbours and supports of Ms J may be able to help.
[22] Because, as Ms O’Brien and Mr Registrar point out, the disqualification has been running ever since 19 July, although it has not been honoured, the appropriate course would be to terminate the disqualification on Sunday, 18 November 2007. That means that Ms J must not drive from today until 18 November but will then be free to drive again.
[23] As mentioned, it is to be hoped that Mr Castricum, who has supported her so strongly throughout this matter and others may be able to assist her to resolve the inevitable inconvenience the disqualification will cause.
[24] So, to that extent, the appeal is allowed. The reparation order is reduced to
$100 payable at $10.00 per week from 21 January 2008 and the term of the disqualification abbreviated so that it concludes on 18 November 2007.
…………………………..
WILLIAMS J.
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