M v Police HC Tauranga CRI 2008-470-6

[2008] NZHC 593

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2008-470-6

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 April 2008

Counsel:         W T Nabney for Appellant

C Harold for Respondent

Judgment:      28 April 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Tauranga
Counsel:

W T Nabney, Tauranga

M V NEW ZEALAND POLICE HC TAU CRI 2008-470-6  28 April 2008

[1]      On 6 June 2007, Mr M   was disqualified from holding or obtaining a driver licence for a period of six months.  Subsequently he sought and was granted a limited licence for the purpose of driving for work related business.

[2]      On 28 August 2007, at about 4.15pm, Mr M   was driving a vehicle on State Highway 29 in Tauranga.  He was stopped as part of a routine traffic check. When asked for a log book and the Court order, he informed the Police that he had left them in another car and did not have them with him.

[3]      At the time he was stopped, his wife and a small child were in the car.  The summary of facts recorded that, initially, Mr M   indicated he was taking his grandson to his mother’s home and that the journey was not work related.

[4]      Mr M   entered a plea of guilty to a charge of driving a motor vehicle in breach of his limited licence.  Initially, a not guilty plea had been entered.  The plea of guilty was entered on 14 January 2008.

[5]      The issue on sentencing was whether there were “special reasons” relating to the offence justifying the imposition of a term of disqualification less than the three mandatory prescribed period of six months set out in s 81 of the land Transport Act.

[6]      No evidence was called on sentence.  Judge Bidois expressed some concern about a submission that the driving was, in fact, for work related purposes but determined the point on the basis that he was not satisfied that there were “special reasons” arising from the order being in another car.

[7]      Judge Bidois entered a conviction.   Mr M   was fined $300 plus costs. He was ordered to be disqualified from holding or obtaining a driver licence for six months.

[8]      Mr  M   appealed  against  the sentence.    The appeal  is  limited  to  the disqualification order.

[9]      Leave has been sought for Mr M   to file and serve an affidavit in support of the appeal which goes into greater detail, both in relation to the purpose of the driving and the circumstances in which the order were in another vehicle, than counsel had done in the District Court.

[10]     I am loathe to proceed with the appeal in the absence of that affidavit but I expressed a concern to counsel at the start of the hearing, that if I were to take it into account, it seemed to me to form a basis for sentencing that is materially different from that on which Judge Bidois was required to impose sentence.

[11]     There is also the point that the issues raised by Mr M   may go to whether he knew he was driving in contravention of the limited licence.   I have heard no argument on whether this is a mens rea offence although that would appear to be the case.  If so, the same problem with regard to advancement of a plea based on special reasons arises here as in Baker v Police (High Court Hamilton, CRI 2007-419-066, 2

November 2007), a judgment of Wild J.

[12]     In  that  case,  Wild  J  considered  the  plea  for  “special  reasons”  to  be problematic because the basis of it conflicted with essential elements of the charge which had been admitted.  In para [14] of that decision, Wild J said:

[14] Even on the most sympathetic view, this appeal is hopelessly problematic. The problem is that the appellant’s version of events conflicts with his guilty plea. By entering a plea of guilty he accepted the essential elements of the charge: that, without reasonable excuse, he operated his vehicle in a manner which caused it to lose traction. If he lost traction purely as a consequence of his attempts to control his vehicle in a dangerous situation, this could not be said to be “without reasonable excuse”. His plea indicates that, at the very least, he continued to operate his vehicle in this manner after it had become reasonable for him to have regained control of it. The appellant cannot claim, as special reasons, the absence of an intention which is an element of the charge to which he pleaded guilty.

[13]     In those circumstances, I raised with counsel the possibility of allowing the appeal both against conviction and sentence and allowing the matter to proceed afresh in the District Court.  If a plea of not guilty were entered on the basis of lack of knowledge, that could be determined at a defended hearing.  If a plea were entered then any appeal against sentence could be determined on a disputed fact basis so that

the Judge considering the sentence to impose would be fully informed of all relevant aspects.  Counsel agreed that was the most appropriate course.

[14]     For  those  reasons,  the  appeal  is  allowed.    The  conviction  and  sentence imposed in the District Court are set aside.   The information is remitted to the District Court for rehearing.

[15]     A prompt first call date should be allocated by the Registrar of the District

Court at Tauranga, so finality can be brought to this proceeding as soon as possible.

P R Heath J