Kouznetsov v Police
[2014] NZHC 1482
•30 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-75 [2014] NZHC 1482
BETWEEN KONSTANTIN KOUZNETSOV
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 June 2014 Appearances:
Y Lee for Appellant
J Pridgeon for RespondentJudgment:
30 June 2014
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 30 June 2014 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
KOUZNETSOV v NEW ZEALAND POLICE [2014] NZHC 1482 [30 June 2014]
[1] On 8 January 2014, Judge Wade found Mr Kouznetsov guilty on charges of intimidation, being in possession of an offensive weapon, operating a motor vehicle carelessly and thereby causing injury to another person and failing to stop and ascertain whether anyone had been injured in an accident. The Judge gave reasons for his decision on 14 January 2014.1 On 25 March 2014, the Judge sentenced Mr
Kouznetsov to six months home detention.2
[2] Mr Kouznetsov now appeals against conviction and sentence.
The prosecution case
[3] All of the charges arose out of an incident that occurred at approximately
4.15 pm on 1 May 2013. It occurred as the complainant, Mr Crowther, was riding his bicycle on a footpath parallel to Lincoln Road in West Auckland. As he approached a driveway, he said he was obliged to swerve to avoid colliding with the rear of a motor vehicle exiting the driveway. There is no dispute that the driver of that vehicle was Mr Kouznetsov.
[4] Mr Crowther then continued travelling along the footpath parallel to Lincoln Road. A short time later, the vehicle that he had narrowly avoided colliding with appeared on his right hand side. The window was wound down, and Mr Kouznetsov yelled abuse at him. A short time later, however, Mr Kouznetsov’s vehicle was forced to stop at a set of traffic lights. Mr Crowther carried on through that intersection in an effort to get away from Mr Kouznetsov’s vehicle.
[5] As Mr Crowther was crossing the intersection of Lincoln Road and Sel Peacock Drive, Mr Kouznetsov turned off Lincoln Road and into Sel Peacock Drive, cutting in front of Mr Crowther. As Mr Crowther approached, Mr Kouznetsov got out of his vehicle. He then yelled out to Mr Crowther that he was going to bash Mr Crowther’s head in with a baseball bat. Mr Crowther said that at this point Mr Kouznetsov was moving towards the boot of his vehicle. This caused Mr Crowther
to pedal away from the scene along the footpath as fast as he could.
1 New Zealand Police v Kouznetsov DC Waitakere CRN 13090003100, 14 January 2014.
2 New Zealand Police v Kouznetsov DC North Shore CRI-2013-090-002179, 25 March 2014.
[6] As Mr Crowther came over the brow of a hill adjacent to the driveway of
9 Lincoln Road, he found Mr Kouznetsov’s vehicle parked directly in his path. Mr Crowther said that he had no opportunity to stop, and collided with the left passenger door of the vehicle. This caused him to be propelled off his bicycle and onto the bonnet of the vehicle. He immediately felt the vehicle reversing away, and this caused him to fall to the ground.
[7] The latter part of the incident was observed by Mr Molloy and Mr Lester, two motorists who were travelling along Lincoln Road in the same direction as Mr Kouznetsov’s vehicle. Mr Lester saw Mr Kouznetsov’s vehicle travelling behind him in the left hand lane. The vehicle then sped up and overtook him, before swerving in front of him. This forced Mr Lester to break extremely hard in order to avoid colliding with the other vehicle.
[8] Mr Lester then saw the other vehicle turn left off Lincoln Road, into the driveway of 9 Lincoln Road where it stopped on the footpath. Almost immediately thereafter, Mr Lester saw Mr Crowther’s bicycle collide with the vehicle. Mr Lester then saw the vehicle reverse out of the driveway, and endeavour to drive off down Lincoln Road. Mr Lester immediately positioned his vehicle in front of the other vehicle so that it could not get away.
[9] Mr Molloy also saw Mr Kouznetsov’s vehicle turn off Lincoln Road and stop on the footpath. He, too, observed the bicycle colliding with the vehicle virtually immediately thereafter. Like Mr Lester, Mr Molloy saw the driver of the vehicle then reverse back onto Lincoln Road and begin to drive off. He, too, positioned his vehicle in such a way that the driver of the other vehicle could not continue driving down Lincoln Road.
[10] Both men then observed Mr Kouznetsov emerge from the vehicle. They said he was extremely angry and was uttering profanities. They and other passersby took it upon themselves to keep Mr Kouznetsov from leaving the scene until the police arrived a short time later.
[11] Mr Crowther was taken to hospital by ambulance. After being examined by a doctor, he was discharged a short time later. He suffered bruising to his jaw, but was otherwise unharmed as a result of the incident.
[12] At the request of the police, Mr Kouznetsov then drove his vehicle to the police station. There he made a written statement describing his version of the incident. In short, he said that a guy on a pushbike drove into the rear passenger side of his motor vehicle as he was exiting the McDonald’s carpark onto Lincoln Road. Mr Kouznetsov said that he yelled at the cyclist, but he kept on cycling away. He said it then took him a few minutes to catch up to the cyclist. He then yelled at the cyclist to stop because he wanted to talk to him, but the cyclist kept on cycling. He said that he pulled into a driveway to wait for the cyclist after the lights on the corner of Lincoln Road and Sel Peacock Drive. He said that at this stage the cyclist was about 30 feet away. The cyclist then drove into the passenger side of his vehicle.
[13] Mr Kouznetsov said that after the collision he wanted to move his vehicle onto the grass verge, and wait there for the police to arrive. He denied that he had tried to flee from the scene of the accident, and said that he had waited for at least one to two minutes before moving his car. During that period the cyclist did not seem to be injured.
[14] At the conclusion of the interview, one of the police officers asked Mr Kouznetsov whether he was prepared to allow the police to look inside his vehicle. Mr Kouznetsov agreed, and the officer then looked through the windows of Mr Kouznetsov’s vehicle whilst it was parked in the garage of the police station. Looking through the rear window, the officer saw what appeared to be a baseball bat. The officer then took a photograph of that object. When he subsequently examined the image on his computer, the officer realised that a length of chain was attached to the end of the bat.
[15] When the officer examined the rear of Mr Kouznetsov’s vehicle, he could find no evidence of any damage or marks indicating that Mr Crowther’s bicycle had collided with the vehicle at the beginning of the incident. There was a dent in the
rear of the car, but as it was covered with dust the officer formed the view it would not have been caused by a recent collision with the bicycle.
The defence case
[16] Mr Kouznetsov gave evidence. This amplified what he had told the police in the statement he had made on the day of the incident. He said the incident began after Mr Crowther had struck his vehicle in the driveway leading from McDonalds onto Lincoln Road. He said he decided to pursue Mr Crowther in order to obtain his details, including details of his insurer. He says that as he drove along Lincoln Road he spoke to Mr Crowther through the open window of his vehicle. He says he asked Mr Crowther to stop, but Mr Crowther told him to go and have sex with himself. Mr Kouznetsov says he then attempted to speak to Mr Crowther again in Sel Peacock Drive, but Mr Crowther ignored him and continued on his way.
[17] Mr Kouznetsov said he then decided to park across the footpath on the driveway to 9 Lincoln Road so that he could force Mr Crowther to stop and discuss the damage that he had caused to Mr Kouznetsov’s vehicle. Mr Kouznetsov said that Mr Crowther was approximately 30 feet away when he stopped his vehicle. He believes that approximately five to seven seconds passed before Mr Crowther collided with his vehicle.
[18] Mr Kouznetsov said that after the collision he tried to ask Mr Crowther whether he was hurt. He said that Mr Crowther immediately made it clear he did not want to talk to Mr Kouznetsov. Mr Kouznetsov says that he then tried to park his vehicle on the grass verge between the roadway and the footpath. He remained in the vicinity of the vehicle until the police arrived. He denied engaging in the manoeuvre that Mr Molloy described at the point where he turned off Lincoln Road and into the driveway.
The Judge’s decision
[19] In essence, the Judge accepted the evidence given by Messrs Crowther, Molloy and Lester regarding the circumstances leading to the collision. Where Mr
Kouznetsov’s evidence differed from that given by the prosecution witnesses, the
Judge rejected it. In this context he said:3
[15] I unhesitatingly reject the defendant[s] version of events. Not only is it directly contradictory to all the other evidence I heard on this issue but it flies in the face of commonsense that a cyclist would deliberately ride his cycle into the side of a motor vehicle when the cyclist was travelling at speed knowing that serious consequences could occur both to the cyclist and to his machine. This was the case here as the cycle had been photographed by the police and shows serious damage to its front forks that were bent back when the front wheel hit the defendant’s car. I am perfectly satisfied from all the evidence that I heard that the defendant had completely lost his temper and was determined to stop Mr Crowther by any means that he could including using his car as a deliberate obstruction. I also bear in mind that although the defendant denied doing so, Mr Lester’s evidence (which I accept) was that the defendant had executed that sudden left turn manoeuvre directly from lane two onto the driveway immediately crossing Mr Lester’s path. I am therefore satisfied beyond reasonable doubt that the defendant did operate his vehicle on Lincoln Road carelessly and as a result injury was caused to Mr Crowther.
[20] The Judge also rejected Mr Kouznetsov’s evidence in relation to the events
that followed the accident. He said:
[16] …The defendant’s version of events was that he simply wanted to park up his motor vehicle and wait for the police but for some odd reason he decided against leaving the vehicle in the driveway or moving it within number 7 Lincoln Road. Instead, he reversed back on to Lincoln Road and accordingly to the defendant he then parked it on the grass verge close by. That is completely contrary to all the evidence I heard which was that the defendant was deliberately fleeing the scene and the only reason that prevented him from doing so were the actions of Mr Molloy and Mr Lester together with some other motorists who blocked the defendant’s escape route until the police arrived. Furthermore, the vehicle was only put on to the grass verge after the police arrived and that was because the defendant’s car was blocking lane one, causing serious congestion. I therefore utterly reject the defendant’s denial that he deliberately fled the scene without ascertaining whether or not anyone had been injured and therefore he failed to stop without any reasonable excuse.
[21] Finally, the Judge rejected Mr Kouznetsov’s explanation about the baseball bat as being totally absurd. He was satisfied beyond reasonable doubt that the bat that the police saw in the boot of Mr Kouznetsov’s vehicle was not carried for any legitimate purpose, and that the attachment of the chain to the end of the bat made it
plainly an offensive weapon with no legitimate reason for its existence.
3 New Zealand Police v Kouznetsov, above n 1.
Grounds of appeal
[22] Counsel for Mr Kouznetsov challenged the Judge’s reasoning in relation to each of the charges. In relation to the charges of carelessly using a motor vehicle and failing to stop and ascertain whether Mr Crowther was injured, Mr Lee submitted that there was no evidence that Mr Crowther had suffered an injury. He also sought to challenge the Judge’s rejection of Mr Kouznetsov’s version of events, and submitted that the Judge was wrong to conclude that Mr Kouznetsov had caused the accident and that it had happened on a road.
[23] On the charge of carelessly using a motor vehicle and thereby causing injury, Mr Lee pointed out that the collision occurred at a time when Mr Kouznetsov’s vehicle had left Lincoln Road and was stationary on the footpath. As a result, he submitted that it was not open to the Judge to find Mr Kouznetsov guilty on a charge of carelessly operating a vehicle on Lincoln Road and thereby injuring Mr Crowther.
[24] On the charge of intimidation, Mr Lee submitted that the Judge had been wrong to find that the charge had been proved because the facts did not substantiate it. On the charge of being in possession of an offensive weapon, Mr Lee submitted that Mr Kouznetsov had advanced a cogent explanation for being in possession of the baseball bat, and that the Judge ought to have been left in a state of reasonable doubt as to whether the bat was in his possession for a lawful and legitimate reason.
Decision
Carelessly operating a motor vehicle on Lincoln Road and thereby causing injury to
Mr Crowther
[25] This charge was laid under s 38 of the Land Transport Act 1998 (“the Act”),
which relevantly provides:
38 Contravention of section 8 causing injury or death
(1) A person commits an offence if the person operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road, and by that act or omission causes an injury to or the death of another person.
(1A) A person commits an offence if—
(a) the person drives a motor vehicle, or causes a motor vehicle to be driven, carelessly; and
(b) by that act or omission, causes an injury to or the death of another person.
Was Mr Crowther injured?
[26] This issue arises in relation to both the careless use charge and the charge of leaving the scene of an accident where a person has been injured. Mr Lee contends that any injuries that Mr Crowther may have received as a result of the collision were so transitory and trifling as not to amount to an “injury” for the purposes of these charges.
[27] Mr Crowther’s evidence regarding his injuries was as follows:
Q. Now Mr Crowther you described as part of the incident, doing a face- plant I think was your words. What, if any injuries, did you suffer as a result of this collision?
A. A lot of bruising to the right leg, hip, ribs, shoulder, lacerations to a muscle underneath my jaw, several x-rays to the jaw, it’s suspected of a crack. Cut lip, cut tongue and prolonged, even to the date when in a cold situation my jaw still aches.
Q. And did you seek any medical attention for that?
A. Yes, was taken by ambulance to Waitakere Hospital.
Q. And that’s presumably where the x-rays were done, is that –
A. Correct.
[28] Mr Crowther’s evidence needs to be viewed in light of the evidence of Dr Prior, the doctor who examined Mr Crowther after he was taken to hospital on the day of the incident. Her evidence, which was read to the Court by consent, described Mr Crowther’s injuries in the following terms:
He was well and able to talk normally with me. His external examination was normal other than an injury to his chin.
There was a lump under the right side of the mandible just lateral to the midline about the size of a grape. There was no fluctuance and the lump was tender to touch. He had a full range of motion of the jaw and no trismus. He was able to open the mouth to admit 3 finger breadths and was able to hold a spatula firmly in the teeth. He was tender along the right side of the mandible. There was no temporomandibular joint tenderness. His mouth
and teeth examination was normal. Other than the palpable lump there was no bruising or abrasions.
I found no other injuries.
An x-ray of the mandible did not reveal any fractures.
…
[29] I take Dr Prior to be saying that the principal injury caused by the collision was a grape-sized bruise to Mr Crowther’s jaw. That bruise did not require treatment, because it would heal naturally over time. The issue, then, is whether such an injury is sufficient to amount to an injury for the purposes of a charge under s 38(1) of the Act.
[30] Mr Lee relied in this context upon R v McArthur, in which Mahon J said:4
The word “injury” is not defined in the Transport Act. It is defined in s 2 of the Crimes Act where the expression “to injure” means “to cause actual bodily harm”. It was said in R v Donovan5 that the injury must be such as to interfere with the health or comfort of the victim and that the hurt or injury need not be permanent but must be more than merely transitory and trifling.
[31] Mr Lee contends that the bruising that Mr Crowther suffered can properly be described as merely transitory and trifling. As a consequence, he argued that it did not qualify as an injury in terms of the charges that Mr Kouznetsov faces.
[32] This submission ignores the passage immediately following that upon which
Mr Lee relies. Mahon J went on to say:6
In this case the only evidence is that the complainant was knocked to the ground and was dazed. There is no evidence that he was bruised, which would, in my opinion, amount to an injury within the terms of s 65. …
[33] Applying this reasoning, the bruising that Mr Crowther suffered as a result of the collision was sufficient to qualify as an injury in terms of the principles referred to in McArthur. Although it was not permanent, it interfered with Mr Crowther’s health and comfort and cannot realistically be regarded as merely transitory or
trifling. This argument fails as a result.
4 R v McArthur [1975] 1 NZLR 486 (NZSC) at 487.
5 R v Donovan [1934] 2 KB 498.
6 R v McArthur, above n 4 at 487.
Did Mr Kouznetsov operate his vehicle carelessly and thereby cause Mr Crowther injury?
[34] The evidence underlying this charge was for the most part given by Messrs Molloy and Lester. Although counsel for Mr Kouznetsov sought to challenge the credibility and reliability of their evidence, the Judge was far better placed than this Court to determine whether their evidence should be preferred to that of Mr Kouznetsov. Moreover, having read the transcript of the evidence I do not see any obvious flaws in the evidence that they gave. It is also important to bear in mind that they were both truly independent witnesses, in the sense that they had no connection with either Mr Kouznetsov or Mr Crowther. They only became involved in the case because they happened to be driving along Lincoln Road at the time the incident occurred. There is also no obvious reason why they would want to side with Mr Crowther rather than Mr Kouznetsov. As a consequence, I consider that the Judge was fully entitled to accept their evidence and reject that given by Mr Kouznetsov.
[35] The manoeuvre that led to the collision with Mr Crowther’s bicycle began with Mr Kouznetsov turning sharply in front of Mr Lester’s vehicle. This was obviously not only careless but also extremely dangerous. It involved Mr Kouznetsov operating his vehicle in such a manner that it would undoubtedly have collided with Mr Lester’s vehicle if Mr Lester had not been sufficiently alert to apply his brakes with sufficient force to prevent a collision occurring.
[36] The manoeuvre then involved Mr Kouznetsov driving his vehicle up the driveway and parking it in a position that he knew was directly in the path of Mr Crowther’s bicycle. He did so for the express purpose of forcing Mr Crowther to stop. Furthermore, Mr Kouznetsov said in evidence that he chose that spot to park because he knew that the brow of the hill would prevent Mr Crowther from seeing his vehicle until a late stage. That, too, was not only careless but also dangerous.
[37] Mr Lee endeavoured to persuade me that the Judge was wrong to find that Mr Kouznetsov caused the collision by parking his vehicle across the footpath. He contended that the evidence showed that Mr Crowther’s bicycle was 30 feet away when Mr Kouznetsov parked his vehicle across the footpath. That gave Mr
Crowther approximately five to seven seconds to take evasive action. As counsel for the respondent reminded me, however, this was the evidence given by Mr Kouznetsov and not by other witnesses. The Judge expressly rejected Mr Kouznetsov’s evidence on this point in the following passage of his reasons:7
[14] The defendant’s version of what happened was that he agreed he wanted Mr Crowther to stop and therefore drove onto the driveway and waited several seconds in the hope of speaking to Mr Crowther again when Mr Crowther unnecessarily rode into the side of his car. This evidence was in broad terms similar to the statement made by the defendant to the police on the day and the defendant claimed that there was 30 feet between his car and the cyclist when he pulled into the driveway after which there was a delay of between five and seven seconds before the cyclist drove into the passenger side of his car.
[15] I unhesitatingly reject the defendant’s version of events. …
[38] Mr Crowther, Mr Lester and Mr Molloy were united in saying that Mr Crowther had no opportunity to avoid colliding with Mr Kouznetsov’s vehicle. The Judge also made the point8 that common sense suggests that no cyclist would deliberately expose himself to the risk of serious injury by deliberately riding his bicycle into the side of a parked vehicle. There is therefore nothing in this point.
[39] Mr Lee next attempted to persuade me that Mr Kouznetsov was not operating his vehicle at the time of the collision in terms of s 38(1) because the vehicle was stationary at that time. The fact that a vehicle is stationary at any given point does not necessarily mean that the driver of the vehicle is no longer operating it. Mr Kouznetsov was the person who had caused the vehicle to become stationary across the footpath, and he deliberately kept the vehicle stationary in that position until after the collision occurred. He then immediately began reversing his vehicle back onto Lincoln Road. I consider that Mr Kouznetsov plainly operated his vehicle throughout this series of events, and that the manner in which he did so caused the
injury to Mr Crowther.
7 New Zealand Police v Kouznetsov, above n 1.
8 In the passage cited at [19].
Was the injury caused by careless use of the vehicle on Lincoln Road?
[40] The only issue that gives me any cause for concern is that it is an essential ingredient of a charge under s 38(1) that the careless operation of a motor vehicle leading to injury must occur on a road. The charge alleged that Mr Kouznetsov operated his vehicle in a careless manner on Lincoln Road, and that he thereby caused injury to Mr Crowther. Although Mr Kouznetsov undoubtedly operated his vehicle carelessly on Lincoln Road, the injury to Mr Crowther occurred not on Lincoln Road but on the footpath to the left of Lincoln Road. It can therefore be argued that the prosecution failed to prove that the injury to Mr Crowther was caused by Mr Kouznetsov driving his vehicle carelessly on Lincoln Road.
[41] This issue can be addressed in two ways. First, I consider that the act of parking the vehicle across the footpath formed part and parcel of a single driving manoeuvre. This began when Mr Kouznetsov cut across the lane occupied by Mr Lester’s vehicle in Lincoln Road, and ended when he stopped his vehicle on the footpath.
[42] Even if I am wrong in that conclusion, however, the Act contains a very wide definition of the term “road”. It includes any place to which the public has access, whether as of right or not.9 The driveway and footpath where the collision occurred were obviously places to which the public have access. The collision that caused the injury therefore occurred on a road for the purposes of a charge under s 38(1). Had it been necessary to do so, I would therefore have amended the charge so as to delete the words “Lincoln Road” and substitute therefore the words “a footpath crossing the driveway of 9 Lincoln Road”.10
[43] The appeal against conviction on this charge fails as a result.
Failing to stop and ascertain injury
9 Land Transport Act 1998, s 2(1).
10 Using the powers vested in the Court by ss 121(6) and 43(1) of the Summary Proceedings Act
1957.
[44] This charge was laid under s 36(1)(c) of the Act, which applies to the driver of any vehicle involved in an accident in which a person has been injured. The driver of any such vehicle will commit an offence if he or she fails to ascertain whether anyone has been injured in the accident.
[45] In the present case, the prosecution relied on the evidence of Mr Crowther, Mr Lester and Mr Molloy, all of whom said that immediately following the collision Mr Kouznetsov reversed his vehicle out of the driveway and attempted to drive away down Lincoln Road. Their evidence was in obvious conflict with that given by Mr Kouznetsov, who maintained that he had asked Mr Crowther whether he was all right but was immediately rebuffed.
[46] I have already held that the Judge was entitled to accept the evidence of the prosecution witnesses, and reject the evidence given by Mr Kouznetsov. Once the Judge accepted the evidence given by the prosecution witnesses, conviction on this charge was inevitable. The fact that Mr Kouznetsov had already begun driving along Lincoln Road by the time other motorists hemmed his car in meant that he had left the scene of the accident without first ascertaining whether Mr Crowther was injured.
[47] The primary challenge to the conviction on this charge was that Mr Crowther had not suffered an injury of sufficient magnitude to bring s 36 into play. I have already found against Mr Kouznetsov in relation to that issue.
[48] The appeal against conviction on this charge therefore fails.
Threatening to injure with intent to intimidate
[49] This charge relates to the threat that Mr Kouznetsov allegedly made to bash Mr Crowther’s head in with a baseball bat. The prosecution case depended for this charge wholly on the evidence of Mr Crowther as to the exchange that occurred between himself and Mr Kouznetsov after Mr Kouznetsov stopped his vehicle in Sel Peacock Drive. Mr Kouznetsov flatly denied that he had made any threat as Mr Crowther alleged.
[50] Once again, the Judge was in the best position to assess the credibility of Mr Crowther and Mr Kouznetsov regarding what was said and done during this part of the incident. Two factors are, however, of some importance. The first is that Mr Kouznetsov acknowledged that he had got out of his car to speak to Mr Crowther after he stopped in Sel Peacock Drive. The second is that Mr Kouznetsov was later found to have a baseball bat in the boot of his motor vehicle.
[51] As the Judge observed,11 it would be a remarkable coincidence for Mr Crowther to fictitiously claim that Mr Kouznetsov threatened to use a baseball bat, and then for that very item to be found in the boot of his vehicle.
[52] The Judge was therefore entitled to find this charge proved beyond reasonable doubt.
Possession of an offensive weapon
[53] Mr Kouznetsov accepted that the item the police officer observed and photographed was a baseball bat with a piece of chain attached to the end of it. A baseball bat used for innocent purposes would not normally have a piece of chain attached to the end of it. The bat in the present case has every appearance of being an offensive weapon capable of being used to inflict injury.
[54] Mr Kouznetsov’s explanation for being in possession of the bat was that he used it on the beach to hit balls for his dog to chase. He said he had attached the chain to the end of the bat to make it heavier so that he could hit balls a greater distance. The Judge regarded that explanation as being totally absurd. He pointed out that if Mr Kouznetsov truly wanted to hit balls a greater distance he would have used a heavier piece of wood, or acquired a dedicated ball thrower of the type used
by many dog owners.12
[55] Mr Lee submitted that the Judge ought to have accepted Mr Kouznetsov’s
explanation regarding the modified bat because it was logical and cogent. That cannot amount to a sustainable ground of appeal. The Judge was obviously entitled
11 At [7].
to accept Mr Kouznetsov’s explanation as being true, just as he was entitled to find that it left him in a state of reasonable doubt. Clearly, however, the explanation did not lead the Judge to either of those conclusions.
[56] I cannot say that the Judge erred in rejecting Mr Kouznetsov’s explanation. It is not for me to say that I would have reached a different conclusion. Like any finder of fact, the Judge was entitled to accept or reject the whole or such parts of Mr Kouznetsov’s evidence as he saw fit. Nor can I say that the Judge’s decision was plainly or obviously wrong, or that it was unreasonable having regard to all of the evidence.
[57] This ground of appeal also fails.
The appeal against sentence
[58] Mr Kouznetsov advances his appeal against sentence on two grounds. First, he contends that the sentence of six months home detention and 18 months disqualification was manifestly excessive. Secondly, he argues that the Judge ought to have exercised the power under s 94 of the Act to impose a sentence of community work rather than a period of disqualification.
Was the sentence manifestly excessive?
[59] Mr Lee pointed out that a sentence of six months home detention is broadly equivalent to a sentence of twelve months imprisonment. He submitted that such a sentence was manifestly excessive having regard to the overall gravity of the offending.
[60] Ms Pridgeon for the respondent submitted that the sentence was well within range, particularly having regard to the aggravating aspects of the offending and Mr Kouznetsov’s previous driving record. She referred me to Samuels v Police, the facts of which have some similarities to those in the present case.13 The appellant in that case had been sentenced to two years imprisonment and disqualified from driving for three years on charges of dangerous driving causing injury and failing to
stop to ascertain injury. Following a heated exchange with another person, the appellant had driven his vehicle directly at the other person. This caused the other person to be knocked off his feet and over the bonnet of the appellant’s vehicle. The appellant then drove off without stopping to investigate the obvious injuries that his actions had caused to the victim. The appellant had numerous previous convictions for driving offences. Cooper J dismissed the appellant’s appeal against sentence. He held that the nature of the appellant’s conduct, coupled with his previous convictions, meant that the sentence imposed could not be described as manifestly
excessive.14
[61] Mr Kouznetsov’s conduct has several aggravating features. First, it was essentially unprovoked. There is nothing to support his contention that Mr Crowther’s bicycle collided with or damaged his vehicle at the beginning of the incident. Had Mr Kouznetsov taken the time at the outset to inspect the rear of his vehicle, the incident would never have occurred. Secondly, Mr Kouznetsov’s pursuit of Mr Crowther lasted for a considerable period. He had ample time to calm down and cease the pursuit before the incident that led to the ultimate collision. Thirdly, it involved a highly dangerous manoeuvre on Lincold Road that put Mr Lester and other road users at risk.
[62] Mr Kouznetsov also deliberately stopped his vehicle on the footpath in a position where he must have known that Mr Crowther would not be able to avoid colliding with it. There is then the seriously aggravating factor that Mr Kouznetsov attempted to drive away from the scene without first ascertaining whether Mr Crowther had been injured. The nature of the collision was such that Mr Kouznetsov must have known it was likely that Mr Crowther would have sustained some form of injury.
[63] To make matters worse, Mr Kouznetsov has several previous convictions for driving offences. These include two previous convictions for driving with excess breath or blood alcohol and one for refusing to provide a blood specimen. He has also been convicted of speeding, refusing to provide details of his identity and
driving whilst disqualified and whilst his licence was suspended. Although the last conviction was entered in 2011, his offending can hardly be described as historic.
[64] Mr Kouznetsov’s conduct is not as serious as that in Samuels, because Mr Kouznetsov did not drive his vehicle directly at Mr Crowther. Nevertheless, his conduct during the incident on 1 May 2013 and his previous record mean that a sentence of six months home detention cannot possibly be described as manifestly excessive.
Does jurisdiction exist to make an order under s 94 of the Act substituting a community based sentence for the order disqualifying Mr Kouznetsov from driving for 18 months?
[65] Section 94 permits the Court to substitute a community based sentence for a period of disqualification in certain circumstances. Mr Kouznetsov contends that the Court should make such an order in the present case, because it will enable him to maintain his employment as a glazier. This requires him to be able to drive on a daily basis.
[66] Ms Pridgeon contends that the Court has no jurisdiction to make an order under s 94 because Mr Kouznetsov has been convicted of driving with excess blood alcohol within the last five years. It is therefore necessary to consider this issue first.
[67] The issue arises because ss 94(4)(b) of the Act provides as follows:
(4) This section does not apply if—
...
(b) the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[68] Ms Pridgeon contends that s 94(4)(b) comes into play in the present case because Mr Kouznetsov is prohibited from applying for a limited licence by virtue of s 103(2)(d), which relevantly provides:
103 Persons who may apply to court for limited licence
…
(2) The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:
…
(d) A person who is disqualified by an order made on his or her conviction—
…
(ii) For an offence against any of sections 56, 57A, 58, 60,
61, and 62 (which relate to offences involving alcohol or drugs); or
…
committed within 5 years after the commission of any other offence specified in this paragraph and arising from a different incident (whether or not both offences are of the same kind, regardless of when convictions were entered for those offences).
…
[69] As noted above, Mr Kouznetsov has two previous convictions for driving with excess breath or blood alcohol. The last of these was entered on 24 May 2011, and relates to an offence committed on 29 December 2010 when Mr Kouznetsov drove with excess blood alcohol. In doing so, he committed an offence against s
56(2) of the Act. This offending occurred within five years of Mr Kouznetsov being convicted on the charges for which he has now been disqualified from driving again. It follows that s 103(2)(d)(ii) prevents Mr Kouznetsov from obtaining a limited licence, and that s 94(4)(b) also prevents the Court from making an order under s 94.
[70] This ground of appeal cannot succeed because the Court does not have the jurisdiction to make the order Mr Kouznetsov seeks.
Result
[71] The appeal against conviction and sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
Y Lee
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