Lingman v Police HC Rotorua CRI-2011-463-000076

[2011] NZHC 2004

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000076

JAY CHRISTOPHER LINGMAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 December 2011

Counsel:         B Foote for Appellant

S-L Tapsell for Respondent

Judgment:      14 December 2011

JUDGMENT OF ASHER J

This judgment was delivered by me on Wednesday, 14 December 2011 at 2pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, PO Box 740, Rotorua 3040. Email:  [email protected]

O’Sullivan Clemens, DX JP30002, Rotorua. Email:  [email protected]

LINGMAN V NZ POLICE HC ROT CRI-2011-463-000076 14 December 2011

[1]      Jay Christopher Lingman was driving his Holden utility vehicle on State Highway 1 when he was caught behind a truck and trailer unit and some other traffic. Unbeknown  to  him  in  that  traffic  was  a  Police  Sergeant  in  an  unmarked  car. Mr Lingman came to the top of a rise and before him was a long straight with no traffic coming the other way.  He accelerated past the line of traffic and overtook all the cars before returning to the left hand side of the road.  As he passed the Sergeant activated his radar.  Mr Lingman’s speed was recorded as 157 kilometres per hour and this increased to 162 kilometres per hour before the completion of the passing manoeuvre.  In his jobsheet the Sergeant noted that visibility was clear throughout the passing manoeuvre and that the opposite lane was clear.  He noted:

There was nothing dangerous about the overtaking, in my opinion it was simply too fast.

…

On speaking with him I advised him that I would be dealing with the matter as a simple excess speed as I thought a Dangerous Speed charge was unwarranted.

[2]      The   jobsheet   records   an   amiable   discussion   and   the   Sergeant   and

Mr Lingman parting on good terms.

[3]      Because Mr Lingman was driving at a speed exceeding the permanent posted speed limit by more than 40 kilometres per hour he was subject to an immediate suspension of his driver licence for 28 days.1

[4]      Mr Lingman received written advice from his lawyers at the time that there was  no  scope  for  any  disqualification.    He  therefore  wrote  a  short  letter  of explanation  to  the  Court.    The  matter  came  before  Justices  of  the  Peace  who convicted him and fined him $750 and Court costs of $132.89.  He was disqualified from driving for a period of six months.

I have noted down here that the Court considers the lesser speed of 157 kilometres  per  hour  established  by police  in  passing a  line  of  traffic is dangerous and affecting road safety.

[6]      Mr Lingman appeals that decision.  It was the central submission of Mr Foote on his behalf that the Justices of the Peace had no basis on which to find the driving dangerous and should not have imposed any disqualification.

[7]      The Crown submitted that it considered the fine and mandatory 28-day suspension adequately dealt with the punitive aspect of Mr Lingman’s offending.  Its position therefore was neutral in relation to the appeal.

Should Mr Lingman have been disqualified for six months?

[8]      Section 80(1) of the Land Transport Act 1998 provides:

80   General  penalty  of  disqualification  may  be  imposed  if  offence involves road safety

(1)   If a person is convicted of an offence against this Act, and the court is satisfied that the offence relates to road safety, the court may order that the person be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.

[9]      The Court of Appeal considered the term “relates to road safety” in Husband v Napier City Council.2   It observed:3

If the subsection were to extend automatically to every one of the many provisions of the Act and the regulations made under it that are designed either directly or indirectly to promote safety on the road, then its scope would be all embracing. That cannot be the intention. On the other hand if its application were restricted to actual driving conduct or to what might be spelled out of the formal words of the charge that produced a conviction, then some kinds of conduct of quite a bad kind which clearly would seem to have affected road safety albeit indirectly, would be outside the disqualification provision.

2      Husband v Napier City Council [1979] 1 NZLR 317 (CA).

3      At 319.

In broad terms the test must depend upon an examination of all the circumstances surrounding a particular offence in order to discover whether in a practical way the conduct giving rise to that offence did relate to road safety and to the legislative effort which is reflected in the Act and the regulations designed to support that objective. In saying that it needs to be emphasised on the one hand that actual and present conditions of safety on the particular occasion are not essential. On the other there must be a clear relation between the conduct itself and road safety in the sense that the one can be or is affected by the other.

[11]     The test the Court adopted was based on that set out by Henry J in Auckland City Council v Tubman,5 the analysis of whom the Court expressly approved.6   That case,  as  here,  involved  a charge  of driving  a  vehicle at  a speed  exceeding the applicable speed limit. The following passage from Henry J’s judgment is apposite:7

Road safety is not to be confused with the fact that a driver has judged, as it turns out correctly, the chances that his breach of a speed limit will not create a  risk.  The  question  is:  Did  his  driving  or  the  excessive  speed  when compared with his proper speed relate or have reference to road safety?

[12]     Mr Foote for Mr Lingman submitted that the speeding in this case could not be said to relate to road safety and therefore that there was no jurisdiction to order disqualification.  I reject that submission.  Mr Lingman was driving at a speed well in excess of the applicable speed limit, a limit safety reasonably required.  It is no answer that Mr Lingman was able to safely indulge in speeding on this occasion.

[13]   More to the point, however, is Mr Foote’s submission that given the circumstances surrounding Mr Lingman’s offence six months’ disqualification was unjustified.   Plainly not every speeding offence will warrant disqualification.  The extent of the infringement and the actual risk to road safety will be relevant both to the exercise of the discretion and the term of any disqualification imposed.   In considering the appropriate term regard must be had to whether, as here, the offender was subject to an immediate 28-day suspension of his or her driver licence because

the speed exceeded the limit by more than 40 kilometres per hour.8   Also relevant is

4      Ibid.

5      Auckland City Council v Tubman [1973] 2 NZLR 133 (SC).

6      At 319.

7      At 137.

the mandatory minimum term of disqualification of six months applying to the much more serious offence of dangerous driving.  The immediate 28-day suspension can be seen as the minimum penalty for a qualifying speeding offence, while six months’ disqualification must be the maximum.  As was observed by French J in Kimber v Police:9

…it seems wrong in principle that [a defendant] should be subjected to a longer period of disqualification than was likely to have been imposed had he been charged with the more serious offence.

This case

[14]     Regrettably the Justices of the Peace were not apprised of the Sergeant’s view that “there was nothing dangerous about the overtaking”.  Their judgment indicates that they assumed quite reasonably that there had been actual danger.   That was incorrect.   Their decision thus must be put to one side and the matter considered afresh.  No issue was taken with the fine or Court costs.  I direct my attention to the appropriateness of a general penalty of disqualification.

[15]     Mr Lingman was driving at a speed well in excess of the speed limit.   In terms of Henry J’s analysis in Tubman his excessive speed related to a breach of what safety reasonably required.  But the Sergeant observed that there was nothing dangerous about the overtaking and the speed on this occasion.  Mr Lingman was subject to an immediate 28-day suspension of his driver licence.  That was in itself a significant penalty.  Indeed, Mr Lingman refers to the significant inconvenience that the 28-day suspension has caused him in his work.

[16]     Was a period of disqualification beyond the 28-day suspension and $750 fine warranted?   I am of the view that it was not.   Though Mr Lingman’s speed was excessive it was of short duration in a passing manoeuvre about which, in the clear view of the Sergeant, there was nothing dangerous.  It was, in terms of driving at a speed exceeding the permanent posted speed limit by more than 40 kilometres per hour, at the lower end of culpability.   The 28-day suspension and $750 fine were

sufficient penalty.  In forming this view I have considered Anticich v Police.10   The appellant in that case appealed against a two-month disqualification ordered in addition to an immediate 28-day suspension and a fine of $630 on a charge of driving at  a speed of 162 kilometres per hour on the open  road.   Panckhurst J allowed the appeal on the basis that the additional two-month disqualification was unjustified and clearly excessive.   The disqualification part of the  sentence was quashed.   In this case I have also had regard to the fact that Mr Lingman was immediately open and cooperative.

Result

[17]     The appeal is allowed and the six-month disqualification quashed.

……………………………..

Asher J