K v Police HC Christchurch Cri-2009-409-110

[2010] NZHC 664

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000110

K

Appellant

v

POLICE

Respondent

Hearing:         5 May 2010

Appearances: S J Shamy for Appellant

C E Butchard for Respondent

Judgment:      5 May 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      Following a defended hearing before two Justices of the Peace, the appellant was convicted of a charge of careless use.  He was fined $200, ordered to pay Court costs of $130 and disqualified from driving for one month.

[2]      The notice of appeal that was originally filed was for an appeal against both conviction and sentence.   However, the appeal against conviction has since been abandoned and the appeal is now limited to the imposition of the one month period

of disqualification.

K V POLICE HC CHCH CRI-2009-409-000110  5 May 2010

[3]      The facts of the offending were that on 11 October 2008 the appellant drove around a curve on a state highway by driving on the wrong side of the road.

[4]      At the hearing, the appellant conceded he was driving on the wrong side of the road.  His explanation which the Justices did not accept was that he had taken that action in order to avoid some children and some quad bikes, and that he had sufficient visibility.

[5]      The incident happened on a coastal road near Goose Bay.   The area has a speed zone of 80 kilometres per hour, with an advisory speed zone at the relevant corner of either 55 kilometres or 65 kilometres.   It is unclear from the evidence which of those two advisory speeds was applicable.

[6]      In finding the charge proved beyond reasonable doubt, the Justices stated:

[41]      We are satisfied that a reasonable and prudent driver would not have crossed the centre line and driven entirely in the right lane.  Mr K   had no compelling reason to cross the centre line.

[42]      In   Police   v   Chappell   (Roper   J,   17/6/73)   Supreme   Court

Christchurch.

The facts speak for themselves.  The only reasonable inference is that there has been careless driving unless and until something is suggested by defendant by way of explanation.

In the absence of some compelling explanation for the driving of Mr K   in the right lane, the only proper inference is careless driving.

[7]      Unfortunately, while there is a detailed statement of the reasons for finding the charge proved, the Justices did not give any reasons for their sentence.   The absence of reasons means that I need to consider the issue of sentence de novo.

Should a period of disqualification be imposed?

[8]      The imposition of a disqualification period in respect of careless use is a matter of discretion, section 37 (2) of the Land Transport Act providing:

(2)       If a person is convicted of an offence against subsection (1),—

(a)      The maximum penalty is a fine not exceeding $3,000; and

(b)The  court  may  order  the  person  to  be  disqualified  from holding or obtaining a driver licence for such period as the court thinks fit.

[9]      Counsel are agreed it is unusual for disqualification to be imposed on a careless use charge.  Counsel for the police says, however, that this case is not the usual careless use prosecution and that an imposition of a short period of disqualification  is  warranted.    Counsel  for  the  appellant,  Mr  Shamy,  however, submits to the contrary and says no period of disqualification should be imposed.

[10]     In support of that submission,  Mr Shamy raised the following points:

i)In terms of the culpability of the offending, there were not significant issues of road safety because:

a.   it was just a fleeting instance of carelessness;

b.the appellant denied speeding and there was no finding made by the Justices about speeding;

c.   the appellant had clear visibility.

ii)Although the appellant has previous convictions for driving offences, the most recent of those was in 1996 and therefore his previous convictions should be given only limited weight.

iii)Disqualification would have a disproportionately severe effect on this particular appellant because of personal reasons.

[11]     The appellant has filed an affidavit in support of the appeal.   I have also received a second affidavit, from his partner.  It appears from the affidavits that the appellant is required to undertake extensive travel in the course of his work.  He has houses in both Christchurch and Kaikoura, and is required to drive between them regularly.  He is also required to drive to buy supplies for his Kaikoura farm, and has

no-one who can be a dedicated driver for him – his partner being about to leave for a holiday overseas.

[12]     Compounding his difficulties is the fact he has been unwell for a considerable period of time and has therefore not been able to work and earn income.  He is under significant financial pressure and says that if he cannot drive for the next month he will be financially ruined.  He is not able to apply for a limited licence until he is actually disqualified, and at present the time lapse between filing the application for a limited licence and the hearing of those applications is approximately three weeks. That, it was submitted, would mean a limited licence would obviously serve little purpose given the period of disqualification was itself only one month.   Thus, Mr Shamy argued the unusual hardship to be suffered by the appellant as a result of disqualification is not able to be ameliorated by the mitigation of penalty aspect of the Land Transport Act 1998.

[13]     I have carefully considered all the submissions Mr Shamy has made.  He has certainly said all that could possibly be said on behalf of this particular appellant, and has said it with great vigour.

[14]     However, first, in relation to the culpability of the offending, I consider that Mr Shamy’s submissions understate the seriousness of the driving.  This appellant was driving entirely on the wrong side of the road on a coastal highway in a holiday area where there are children, cyclists and caravans.  As the police point out, it was not a case involving a momentary lapse of attention, but rather a conscious decision. The appellant made a deliberate decision to cross the centre line.

[15]     I accept there is no finding as to speed, and in the absence of a contested facts hearing today, I would not be prepared to rely on the issue of speed.   I do not, however, accept Mr Shamy’s argument relating to visibility, because unlike speed , visibility was the subject of an express finding by the Justices:

[34]     In our opinion if Mr K   had had a clear view of 100 metres throughout his entire manoeuvre into the right lane then the Police patrol car parked at the side of the road was there to be seen.  If Mr K   had seen the marked Police patrol car he is unlikely to have moved into the right lane when he did.

[35]      In our opinion Mr K   did not apply Land Transport (Road User) Rule 2004 2.3 (2) (b).  He did not ascertain that the manoeuvre into the right lane could be made safely.  Mr K   had less than 100 metres of clear view throughout his manoeuvre.   His actions were not those of a careful and prudent driver.

[16]     Mr Shamy sought to challenge this finding on the grounds that it was largely dependent on the contention the appellant had been unable to see a police vehicle which was further down the road and therefore so the Justices reasoned, if he could not see the police vehicle, that meant he did not have clear visibility.  Mr Shamy says such reasoning is flawed because the police vehicle was parked off the road and issues of visibility should be determined by reference to the driver’s vision of the road.   It is not necessary in terms of road safety that the driver is able to have a complete view of everything off road as well as on road.

[17]     However, that argument overlooks the fact that the police car, while parked off the road, was still on the asphalt and was only a metre off the road.  Further, the area where the police vehicle was parked is an area where it is highly possible there could have been a cyclist or a child.  Therefore, if the appellant was unable to see the police vehicle, he would not have been able to see a cyclist or a child, or any other vehicle close to that spot that was proceeding on the assumption there would be no traffic coming towards them on their side of the road.

[18]     A driver must be alert to the unexpected, and by driving in the way he did, the appellant was in my view potentially putting himself and other road users at risk. I do not regard the degree of carelessness as low.

[19]     Turning then to the issue of the appellant’s previous convictions (dangerous driving, three charges of driving while disqualified, two convictions for careless use and conviction for careless driving causing death or injury), I accept that the weight to be afforded to this as an aggravating feature has to be tempered by reference to the fact that the last offence was some time ago, in 1996 when the appellant was a young man.  However, against that is the fact that since 1996 the appellant has a significant demerit point history:

Offence Date    Offence Description  Demerit Points

04/08/2008	Exceeded 100 km/h posted speed limit	35
12/09/2007	Exceeded 90 km/h while towing – light vehicle	50
14/10/2006	Exceeded 90 km/h while towing – light vehicle	20
30/09/2005	Exceeded 100 km/h posted speed limit	35
03/07/2005	Exceeded 100 km/h posted speed limit	20
08/04/2004	Exceeded 100 km/h posted speed limit	40
04/04/2003	Exceeded 100 km/h	35
30/11/2002	Exceeded 50 km/h in a restricted area	20
29/03/2002	Exceeded 50 km/h temp spd limit road works	35

[20]     Mr Shamy suggested that because none of the demerit point offending relates to  driving  on  the  wrong  side  of  the  road,  they  should  be  of  no,  or  limited, significance.

[21]     I do not agree with that argument.   I consider the demerit history to be significant because it shows the appellant is a person who does not observe the road rules.  It would be misleading to present him as a person who had learnt the error of his ways since 1996.  The demerit history is of concern.

[22]     As far as the issue of personal circumstances is concerned, of all the points raised in the appeal this has given me the greatest pause for thought.  However, after Mr Shamy’s written submissions were filed, it transpired that as the result of another speeding incident in November 2009 the appellant has now accumulated sufficient demerit points within a two-year period that a demerit suspension notice is about to be served on him, suspending his licence for three months.  As a result of that, the argument about a limited licence being unable to mitigate a one month disqualification period obviously loses its force.

[23]     I  accept,  of  course,  that  the  personal  circumstances  are  still  relevant  in weighing up whether there should be what will in effect be an additional month of disqualification.   However, in my view, after weighing all the circumstances and having regard not only to my obligation to impose the least restrictive outcome but also  considerations  of  individual  and  general  deterrence,  I  have  come  to  the

conclusion  that  a  period  of  disqualification  is  warranted.    I  have  considered, however, that the length of it should be limited on account of the personal circumstances, and I have therefore decided that the most appropriate outcome is the imposition of a period of disqualification of one month.

[24]     The outcome of the appeal hearing therefore is that the appeal is dismissed and the sentence of the Justices is effectively confirmed.

Solicitors:

Ronald W Angland & Son, Christchurch (Counsel: S J Shamy, Christchurch) Crown Solicitor’s Office, Christchurch