M v Police HC Christchurch Cri-2008-409-204

[2009] NZHC 86

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000204

CRI-2008-409-000205

M

Appellant

v

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS

Respondents

Hearing:         11 February 2009

Counsel:         J McCarthy for Appellant

B Hawes for Respondents

Judgment:      11 February 2009

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal by M   in relation to a sentence imposed in the District Court on 15 October.  The case has a somewhat convoluted history to which I need to refer briefly before I come to the points requiring determination.

[2]       On 13 October 2007 the appellant was apprehended driving contrary to the terms of his restricted licence.  He was also charged with exceeding 50 kilometres per hour and turning against a red arrow at traffic lights.  To these three charges he entered written pleas of guilty.   His case came before Justices of the Peace on

21 December.    They imposed  fines  in  relation  to  the  speeding  and  traffic  light matters and I need not mention those offences again since they are not the subject of

the appeal.

M V NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS HC CHCH CRI-2008-409-000204  11 February 2009

[3]      With reference to the charge of driving contrary to the terms of his restricted licence the Justices were satisfied that because road safety was involved a disqualification  was  appropriate.    They  imposed  six  months  to  commence  on

18 January 2008.  The deferment of the commencement date was to enable notice of the disqualification to be given to the appellant he, of course, not being present at the hearing before the Justices on 21 December.

[4]       Some time later, in 2008, the appellant was twice stopped driving a motor vehicle.  The second such occasion was on 21 June when he was also breathalysed and found to have a reading of 467 micrograms of alcohol per litre of breath.  Hence he was charged with two offences of driving while disqualified and one of driving with an excess breath alcohol concentration.  These matters were before the Court at a status hearing on 18 August.   By then the police had realised that notice of the disqualification had not been given to the appellant.  They elected to withdraw the two pending charges of driving while disqualified.  As Mr Hawes pointed out in his written submission this may have been a little benevolent in that the legislation contemplates that such charges may remain available in the circumstances I have described.

[5]      In any event the police had filed, on 12 August, an application for rehearing in that they sought a resentencing in relation to the charge of driving contrary to the terms of his restricted licence.  The application made the point that the appellant had not served that disqualification (presumably because he was unaware of it);  that he was a recidivist offender in relation to his restricted licence and the submission was made that the interests of justice required that he be resentenced on that matter.

[6]    The application for rehearing was before Judge Philip Moran on 14 September. He directed that the application be heard at a later date, namely 15 October.  On that day  the  appellant  appeared  before  Judge  Erber.    He  was  represented  by  Mr McCarthy, as he is today.  The Judge had before him both the rehearing application and the excess breath alcohol charge.   In addition a fines report had surfaced, disclosing that the appellant had outstanding fines of about $27,000, effectively no income and that he had not been able to make any payments in reduction of his liability in the recent past.

[7]       Mr McCarthy told me, somewhat frankly this afternoon, that he forgot that there  was  the  rehearing  application  and  in  the  event  the  sentencing  exercise proceeded without his appreciating that the Judge was about to impose sentence on the restricted licence charge (as if a rehearing had been granted).  In fact the position was that that rehearing application was opposed by Mr McCarthy, a matter he had told the Judge at the previous hearing and yet he made no submissions in opposition.

[8]      Judge Erber noted that the appellant had a very positive pre-sentence report. He was then 22 years of age and the report recorded that he had made significant efforts to turn his life around and appeared genuinely motivated to break his cycle of offending.  Hence the Judge indicated that he was not minded to interfere with the appellant’s liberty.  On the other hand he said that Mr M   had a very bad list for traffic offending, as indeed he does.   Sentence was then imposed.   The Judge ordered 280 hours of community work in relation to the excess breath alcohol charge and with reference to the remission of fines in the sum of $5,000.   He did not differentiate, or apportion, the community work hours as between the two matters.

[9]      With reference to the issue of disqualification the Judge imposed 12 months disqualification, being six months for the excess breath alcohol charge (the statutory minimum) and six months on the restricted licence charge.

[10]     Initially two matters were raised in support of the appeal.  The first concerned the 280 hours of community work.   It is perhaps unfortunate that there was not a breakdown between the offence and the remission of fines, so that it was apparent to the appellant exactly what sentence he received for the former and what number of hours   were   involved   in   relation   to   the   remission.      Following   discussion Mr McCarthy was inclined to accept that the hours may not be excessive.   The indications are that the Judge had in mind 150, perhaps 180, hours in relation to the excess breath alcohol charge and, if this is so, the remission of fines represented the balance of about 100 hours.   In any event I am not disposed to interfere with the hours that were ordered by Judge Erber.

[11]     With reference to the 12 month disqualification there is an obvious problem in  that  there  is  nothing  to  show  that  the  rehearing  application  was  heard  and

determined.  I have a copy of the application on the appeal file.  There is no notation on it to indicate that the application was granted.  Moreover, Mr McCarthy confirms that he made no submissions on the matter.  Indeed he acknowledges he forgot that it was before the Court.  It must follow, in my view, that the six month disqualification on the restricted licence charge was imposed without jurisdiction.  Accordingly it is quashed.

[12]     With reference to the application for a rehearing itself that still falls to be heard in the District Court.  That said, it may be that the time has come to question whether the application should proceed.   As the narrative I have just outlined demonstrates, this matter has a long history.  It may be a situation where enough is

enough.

Solicitors:

Sumner Bay Law, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent