Locke v Police

[2012] NZHC 762

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000063 [2012] NZHC 762

BETWEEN  KEVIN SAMUEL LOCKE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 April 2012

Appearances: S Thode for Appellant

S McMullan for Respondent

Judgment:      24 April 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            S Thode, Auckland

LOCKE V NEW ZEALAND POLICE HC AK CRI-2012-404-000063 [24 April 2012]

[1]      The appellant pleaded guilty to two offences of driving while suspended.  On

25 January this year Judge Dawson in the District Court at North Shore convicted him and fined him $300 and Court costs on the first offence and disqualified him from holding or obtaining a driver’s licence for six months from 26 January.  On the second offence he convicted and fined the appellant $600 and Court costs.   He disqualified the appellant from holding a driver’s licence for a further six months from 26 July.

[2]      Mr Locke appeals on the grounds that the sentence imposed was manifestly excessive, both in relation to the fine and the disqualification ultimately imposed. The facts can be stated shortly.

[3]      On 2 December 2010 the appellant was stopped by a police officer.  Inquiries showed that Mr Locke had accrued more than 100 demerit points as a result of his driving, mainly if not exclusively, speeding offending.  The constable followed Mr Locke home and issued him with a suspension notice and explained that he could not drive for the next three months.  Just over a month later on 3 January 2011 Mr Locke was stopped whilst driving on State Highway 1.   He was stopped for a driving offence, speeding, and checks confirmed he held a suspended driver’s licence.  That was the first offence.

[4]      Then, again just over a month later, and within a week of his matter in relation to the first offence being called in Court on 8 February Mr Locke was stopped on 15 February 2011 for speeding while on Akoranga Drive, Northcote.  He ultimately pleaded guilty to both offences and was dealt with as I have noted above.

[5]      In support of the appeal Mrs Thode submits  that the total fine of $900, particularly when taken in conjunction with the two sets of Court costs, was manifestly excessive and the disqualification was also manifestly excessive.   She submitted that while there had to be some uplift for the second offence a fine of between $700 or $800 was within range and, in relation to the disqualification a period  of  eight  or  nine  months  in  total  would  have  been  within  range.    She

submitted,  however,  that  the  total  fine  of  $900  and  total  disqualification  of  12 months was excessive.

[6]      Mrs Thode also submitted that it was not apparent whether the Judge had taken account of mitigating factors in this case, namely:

the guilty plea;

the appellant’s previous good record;

his explanation as to why he was driving on the second occasion;

the effect the media interest had on him;  and his voluntary work within the community.

[7]      Mrs Thode was not able to refer to any particular authorities to support her proposition that in the circumstances of this case the fine and disqualification was excessive.

[8]      I accept, as Mrs Thode submitted, that it is not apparent from the Judge’s sentencing notes how he ultimately arrived at the fine and period of disqualification he did apart from his reference to there needing to be an uplift for the second set of offending.  However, I also acknowledge that in the course of a busy sentencing list and on a matter of this nature it is understandable why the Judge did not articulate the structured sentencing approach that might be applied to more serious offending.

[9]      Ultimately the issue for this Court on appeal is whether the sentence imposed can be said to be clearly excessive or that the Judge made some error which vitiates the sentence imposed.   If the sentence ultimately imposed is within a range that could properly be justified by application of the sentencing principles then the appeal must be dismissed.

[10]     In this case I do not accept the submission that the Judge failed to take into account all relevant factors.  In his sentencing notes the Judge clearly referred to the

guilty plea and would have been aware that credit was required for that.  The Judge also referred to the appellant’s voluntary work within the community and was well aware of the effect his profile as a sportsman had on the media interest in the case. The effect of the media interest, however, is not a mitigating factor.  It is just a factor that arises from the public profile that the appellant has in the community.

[11]     The  Judge  was  aware  that  the  appellant  did  not  have  previous  driving offending but, more importantly, the issue was the offending that was before the Judge.   The appellant had his licence suspended because of an accumulation of demerit points relating to speeding.  On both occasions the appellant was stopped he was speeding.  The offending occurred within a relatively short period of time and, as I have noted, the second offence within a week or so of his case being called in the District Court in relation to the first offence.

[12]     The suggestion by the appellant that his explanation for his driving on the second occasion offers some excuses is simply unrealistic.  It is said he was driving because his mother was in hospital and he was on his way to visit her.  There is no reason at all why he could not have taken a taxi nor is there any reason to support the speeding at that time.  There are issues of public safety involved when a young man, subject to suspension orders continues to drive in excess of the speed limit.

[13]     In relation to the quantum of the fine the police have referred to a number of cases:  Reddy v Police;[1]   Perkins v Police;[2]   and Eaton v Police.[3]   In Reddy there was a fine of $400 for one offence;  in Perkins a fine of $900 and Eaton a fine of $350. In the circumstances it cannot be said that the Judge’s approach in adopting a fine of

[1] Reddy v Police HC Auckland CRI-2010-404-217, 17 September 2010.

[2] Perkins v Police HC Invercargill CRI-2010-425-11, 31 August 2010.

[3] Eaton v Police HC Auckland A23/01, 20 March 2001.

$300 for the first offence and a separate and additional fine of $600 for the second offence was clearly excessive, particularly bearing in mind the maximum penalty of

$4,500 on each occasion.

[14]     Next, in relation to the disqualification I note the period of six months is a mandatory period of disqualification.  In Nicol v Police[4] the High Court considered

[4] Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005.

an appeal where Mr Nicol was found driving whilst disqualified on two separate occasions about two months apart.  The District Court Judge imposed a cumulative disqualification period of 12 months.  Heath J considered that although it would be preferable for the District Court to impose concurrent periods of disqualification, the second one being longer to complete aggravating features, he accepted s 85(1) of the Sentencing Act was wide enough to allow the Court to impose cumulative periods of disqualification.

[15]     In  Nicol  the  offences  were  unconnected  and  occurred  on  two  separate occasions.   Heath J  considered that if the charges had been brought  before the District Court on two different days the second period of disqualification would have been  imposed  cumulatively  on  the  first  one.    He  accepted  that  would  be  an appropriate result.  Alternatively the second offence was committed shortly after the first one and in blatant disregard of a Court order so that the disqualification period should be longer to reflect the aggravating features.   While the appellant in the present case was subject to a suspension rather than a Court order at the time of the offending I do not consider that to be a material factor of distinction.   In Nicol v Police the Court upheld a 12 month period of disqualification.

[16]    The appellant fails to satisfy the Court that either taken individually or considered together the fine and disqualification in this case were excessive.  Nor do I consider the Judge erred in principal in imposing the fine of $900 (together with Court  costs)  and  a  cumulative  period  of  12  months’  disqualification  in  the

circumstances of this matter. The appeal is dismissed.

Venning J