Khan v Police HC Auckland CRI-2011-404-62

[2011] NZHC 488

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-62

BETWEEN  MOHAMMED AMIR KHAN Appellant

ANDNEW ZEALAND POLICE Respondents

Hearing:         17 May 2011

Counsel:         Appellant in person

K Bannister for Respondent

Judgment:      17 May 2011

JUDGMENT OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Respondent

(copy to Appellant in person)

KHAN V POLICE HC AK CRI-2011-404-62 17 May 2011

[1]      Mr Khan, appearing in person, appeals his conviction and sentence on a charge of operating a vehicle on a road carelessly.

[2]      The offence occurred on 21 August 2010.  Essentially, Mr Khan failed to give way at a road intersection.  A vehicle travelling into the intersection collided with him.  The driver of the other car suffered no injuries from the crash but his vehicle suffered moderate damage.  The driver of the other car was insured and suffered no direct financial loss as a result of the collision.   Mr Khan told the investigating officer  that  he  had  stopped  at  the  give  way  sign  but  had  simply  not  seen  the oncoming vehicle.

[3]      The case came before Justices of the Peace in the District Court at Manukau on 22 February 2011.   Mr Khan pleaded guilty and told the Justices of the Peace, through his lawyer, that his degree of carelessness was low and that he had been so concerned about what had happened that he had, of his own free will, undertaken a defensive driving course.   Mr Khan’s lawyer asked the Justices of the Peace to discharge him without conviction pursuant to s 106 of the Sentencing Act 2002.

[4]      The Justices of the Peace turned their minds to s 106 of the Sentencing Act and  to  the  test  set  out  in  s 107.    They did  not  give  their  reasons  for  refusing Mr Khan’s  application,  but  it  can  be  inferred  that  they  looked  at  the  level  of carelessness and could not put Mr Khan into a category different to any other person coming for sentence on such a charge.  However, they did take into account the fact that Mr Khan had gone to a defensive driving course and in sentencing they imposed a fine of $450. The maximum sentence is a fine of $3,000. The Justices of the Peace imposed court costs of $132.89.  Importantly, they did not disqualify Mr Khan from driving.  That indicates to me that the Justices of the Peace had listened to what his lawyer had submitted about the mitigating factors, and in particular had given weight to the fact that Mr Khan had undertaken a defensive driving course.  It would have been  within  the  jurisdiction  of  the  Justices  of  the  Peace  to  have  taken  away Mr Khan’s driver’s licence.

[5]      Before me, Mr Khan says that his degree of carelessness was low and that the particular consequences which make it unfair for him to have been convicted are,

firstly,  that  he  wishes  to  become  a  New Zealand  citizen  and  is  afraid  that  this conviction could count against him and, secondly, that the conviction might compromise his ability to travel in the future.

[6]      I am required to look at Mr Khan’s appeal in accordance with the law.  The law says that where a person sought a s 106 discharge, then the Court on appeal should consider it as an appeal against conviction and sentence.  It follows that the role of the Court is to assess for itself whether the test under s 107 has been met by Mr Khan.

[7]      Section 107 says:

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.

[8]      Firstly, I have to identify the gravity of the offending.   The gravity of the offending was not high.   This was a typical piece of careless driving.   Mr Khan stopped at a give way sign; he looked; he did not notice an oncoming car, pulled out and there was a collision.  Fortunately no-one was hurt.  The fact that the driver of the oncoming car was insured is not something that diminishes the gravity of the offending; it is just that if the driver had not been insured and had suffered a direct financial loss, that would have been added to the mix for the purposes of Mr Khan’s application.

[9]      I also have to identify the direct and indirect consequences of the conviction. In this case the points of significance are those that Mr Khan has identified.   But those are consequences which are common to any person who is convicted of a charge of careless use of a motor vehicle, although of course given Mr Khan’s wish to become a New Zealand citizen that possible consequence is one which is felt potentially only by persons so seeking.

[10]     Here I am reassured that this is what is known as a minor conviction.  It could not properly be characterised as a criminal conviction.  It is very much at the lower end of the scale and there is nothing before me that would indicate that it should

materially interfere either with Mr Khan’s travel plans or with his application for citizenship.

[11]     Therefore, when I come to the third factor, which is whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending, I cannot say that they would be.  The fact of the matter is that Mr Khan has been convicted of careless use as a result of his plea of guilty.   The sentence imposed is well within the Justices of the Peace jurisdiction.  The consequences of the conviction itself are pretty much the same for Mr Khan as they would be for anybody else.  I have no reason to think that Mr Khan’s ability to travel overseas or his  application  for citizenship  would  be materially affected by the entry of the conviction.

[12]     Accordingly, the appeals are dismissed.

Brewer J