J v Police HC Tauranga CRI 2006-470-34

[2007] NZHC 76

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2006-470-34

BETWEEN  J

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 February 2007

Counsel:         G G J  , Appellant in person

G C Hollister-J   for Respondent

Judgment:      23 February 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Tauranga
Copy to:

Appellant in person

J V NEW ZEALAND POLICE HC TAU CRI 2006-470-34  23 February 2007

[1]      Mr J   has appealed against the entry of a conviction and the sentence imposed in the District Court at Tauranga on a charge of driving while disqualified. The conviction was entered during the course of a status hearing, at which a plea of guilty was received by the presiding District Court Judge through counsel acting for Mr J  .

[2]      Mr J   has told me today something of the circumstances that led to his apprehension in July 2006.  At 1.05pm that day he was driving a Nissan Prado motor vehicle along Banks Avenue in Mt Maunganui.   He was stopped by Police and admitted to being a disqualified driver.   Mr J   tells me that he drove in circumstances which had caused him some difficulty.  Apparently a driver did not turn up for work and he felt he needed to drive to ensure work was done.  Frankly and commendably, however, Mr J   has told me that he knew he was not able to drive at the time.

[3]      Judge Rollo sentenced Mr J   to 60 hours community service.  He imposed no further disqualification under the Land Transport Act 1994.  That sentence was lenient in the extreme, Mr J   having an extensive record for driving related offences, including driving while disqualified going back into the 1980s.

[4]      As  Mr  Hollister-J    has  submitted,  for  the  Crown,  there  need  to  be exceptional circumstances before a Court will entertain an appeal against conviction and sentence where a guilty plea has been entered.   I have been referred to R v Draper [1985] 1 NZLR 129 (CA). However, in the course of that decision Greig J, for the Court, referred to the power of a District Court to grant a rehearing in relation to the summary jurisdiction of that Court: see s 75 of the Summary Proceedings Act

1957.   Regrettably, it appears that Mr J   was told that he could not seek a rehearing in the District Court and for that reason found it necessary to embark upon this appeal.

[5]      The complaints made by Mr J   about his desire to plead not guilty and to put relevant factors before a Judge conflict to a substantial degree with evidence from Mr Dutch, who was the barrister who represented him at his status hearing.

However, for the purpose of this appeal, as I have not heard either Mr J   or Mr Dutch be cross-examined, I propose to assume (without deciding the point) that, while  Mr  Dutch  may  well  have  explained  the  circumstances  to  Mr  J    and informed him of the desirability of pleading guilty, Mr J   did not understand what was being conveyed to him and was genuinely surprised when the plea of guilty was entered.  I make it clear that that assumption makes no adverse finding on the evidence given by Mr Dutch.

[6]      On that assumption, the question is whether an appeal should be entertained. Leaving  aside  whether  this  is  a  suitable  case  in  which  to  entertain  an  appeal following the entry of a guilty plea, on the merits I am satisfied that the appeal must be dismissed.

[7]      The  reality  is  that  Mr  J    has  an  extensive  history  of  driving  related offences.   He acknowledges knowing that he drove while disqualified.   In those circumstances, he was very fortunate to escape imprisonment, or at least a further lengthy period of disqualification.

[8]      The sentence imposed in the District Court was very lenient and it is difficult to envisage that, if a rehearing were held, Mr J   could receive any better result than that achieved.  In those circumstances, it would be pointless to allow the appeal and on that discretionary basis I found my decision.

[9]      For  those  reasons  Mr  J  ’  appeal  against  conviction  and  sentence  is dismissed.

P R Heath J