Matete v Police
[2022] NZHC 441
•15 March 2022
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2022-416-000001
[2022] NZHC 441
FREDERICK DONALD MATETE v
POLICE
Hearing: 2 March 2022 Appearances:
S Mitchell for the Appellant
M Mitchell for the Respondent
Judgment:
15 March 2022
JUDGMENT OF GRICE J
Introduction
[1] Mr Frederick Matete pleaded guilty to a charge of careless driving causing death. He was sentenced on 12 January 2022 in the Gisborne District Court to 12 months’ disqualification from driving as well as four months’ community detention.1
[2]Mr Matete appeals his conviction and sentence on the grounds that:
(a)the Court could have granted a discharge without conviction;2
1 Police v Matete [2022] NZDC 282 at [3].
2 Sentencing Act 2002, s 106.
MATETE v POLICE [2022] NZHC 441 [15 March 2022]
(b)the sentence was manifestly excessive, notwithstanding the tragic consequences of the offending, given the low level of carelessness involved.
[3] Mr Mitchell indicated Mr Matete’s disqualification has been suspended pending the appeal. Mr Mitchell was not aware of the exact period of disqualification served but thought it was in the vicinity of 3 weeks.
Background
[4] On Saturday 27 March 2021, Mr Matete was working a 12-hour shift driving a heavy truck and trailer combination unit. He began his shift at 5.00pm. He travelled to Wairoa and collected a load before returning to Gisborne. After emptying his load at Cedenco in Gisborne, Mr Matete decided to visit his children, who reside in Anzac Street. It was approximately 10.00pm.
[5] Mr Matete went inside the address leaving the truck running and the lights on. Shortly afterwards he returned to his truck and turned it off so he could have his break. When he did so, all the lights on the heavy vehicle combination also turned off.
[6] The victim completed his shift at Cedenco at 10.00pm. He was returning home on his 50cc scooter, travelling along Anzac Street. The victim failed to see the rear of the trailer unit as he approached it from behind, due to the unit not having lights on. The victim collided with the heavy vehicle combination, causing himself and the scooter to be wedged under the trailer unit. As a result of the injuries sustained from the collision, the victim died at approximately 11.12pm.
[7] In explanation, Mr Matete stated that when he turned the truck off, he turned on the night light. When later asked to do so by a Senior Constable at the scene of the accident, the defendant pushed the light on, but no lights worked on the heavy vehicle combination due to there being no light fitted.
[8] Mr Matete was charged with careless or inconsiderate vehicle operation causing death on a road.3
Lower court decision
[9] The District Court Judge emphasised that the offending related to carelessness and accepted that it was “without question” an accident, but that “[r]egrettably, it is [an accident] that could have been avoided if the defendant had complied with his obligations as the operator of a heavy motor vehicle.”4 The Judge recognised that Mr Matete had worked with the victim, knew him well and counted him as a friend, so therefore would be suffering loss and guilt.5
[10] The Judge related the facts, which were not disputed, noting as well that Mr Matete had not been rostered on to work that day but had been called in to cover for another driver.6 The Judge noted the truck and trailer unit belonged to a subcontractor to Cedenco. The truck and trailer did have a rear-facing light fitted, but it was without a bulb and thus non-operational.7 The Judge noted that the fact Mr Matete was provided with a truck that did not have the required rear-facing light was a matter of concern, because the Judge could not determine the wider responsibility for the accident.8
[11] Nevertheless, the Judge accepted it was Mr Matete who was charged before the Court, and that his carelessness in this case was, leaving the truck and trailer unit he was operating in a dark street, late at night and failing to check that a rear-facing light was operating at the time he took his break.9
[12] The Judge considered that a sentence of four months’ community detention would be appropriate in this case, to recognise that it was a case of carelessness and Mr Matete did not have a record of offending in this way.10 The Judge said that “[n]o
3 Land Transport Act 1998, s 38 — maximum penalty three months’ imprisonment or $4,500 fine; and mandatory minimum six months’ disqualification from driving.
4 Police v Matete, above n 1, at [3].
5 At [11].
6 At [6] and [11].
7 At [5].
8 At [11].
9 At [7] and [11].
10 At [13].
sentence … could possibly reflect the harm that has been done” and was concerned to recognise the level of carelessness involved.11
[13] The Judge also disqualified Mr Matete from driving for 12 months.12 The Judge appreciated this was going to affect the appellant’s employment, but said a disqualification period “seems entirely appropriate” and noted it did not limit Mr Matete’s ability to obtain a limited licence to continue his employment.13
Appellant’s submissions
[14] Counsel for Mr Matete brings four grounds of appeal as alternatives in descending order of preference, that:
(a)the Judge should have discharged the appellant without conviction under s 106 of the Sentencing Act 2002; or
(b)there were special circumstances relating to the offence in terms of s 81 of the Land Transport Act 1998, such that no disqualification from driving was required; or
(c)the Judge should have applied s 94 of the Land Transport Act, to extend the community-based sentence in lieu of disqualification; or
(d)the disqualification period ought to have been limited to 6 months.
Appeal against refusal to discharge without conviction
Approach to appeal
[15] An appeal against a refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.14 The basis for determining
11 At [13].
12 At [15].
13 At [15].
14 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 [7]–[8].
an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:15
(a)by virtue of a material error by the sentencing Judge in entering a conviction; or
(b)as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act 2002.
[16] The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.16 It is a matter of fact requiring judicial assessment and the discretionary power of the court to discharge without conviction arises only if the s 107 threshold has been met.17 An appeal against a refusal to grant a discharge without conviction proceeds by way of rehearing.18 Accordingly, the normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.19
[17] The approach to be adopted by an appeal court in relation to s 107 has been summarised in this way:20
[W]hen it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.
[18] If the appeal is allowed, the Court must set aside the conviction.21 The Court has a broad discretion as to next steps,22 including the ability to direct that a judgment
15 At [12].
16 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
17 At [11].
18 Denden v Police [2014] NZHC 1814 at [28].
19 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and see Heke v R [2010] NZCA 476 at [17]-[19]
20 Denden v Police, above n 18, at [28].
21 Criminal Procedure Act 2011, s 233(2).
22 Section 233.
of acquittal be entered, to direct that a new trial be held, to substitute a conviction for a different offence or to make any other order it considers justice requires.23
Relevant law
[19] Section 106 of the Sentencing Act provides that if a person who is charged with an offence is found or pleads guilty, a Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.24
[20] The application of s 106 is guided by s 107. Under this provision, a Court must not discharge an offender without conviction under s 106 unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.25 The Court of Appeal has described s 107 as “a gateway through which any discharge without conviction must pass”.26
[21] The Court of Appeal has characterised an assessment under s 107 as a three-step process:27
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;28
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
23 Section 233(3).
24 Sentencing Act 2002, s 106.
25 Section 107.
26 R v Hughes, above n 16, at [8].
27 Prasad v R [2018] NZCA 537 at [11].
28 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
[22] In relation to the first step, the Court of Appeal has confirmed that “when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender”.29
[23] With regard to the assessment of direct and indirect consequences of conviction on a defendant, the Court of Appeal has stated that:30
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
[24]In relation to the final step, the Court of Appeal has affirmed in R v Smyth
that:31
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
[25] The Court of Appeal has said there must be a “real and appreciable” risk that any given consequence will happen.32 This standard “recognises that the court is assessing the likelihood of something that may happen in the future”.33 Only if the three-step test as set out above (the proportionality assessment) is met can the court move to consider the residual discretion under s 106.34
[26] Once the Court is satisfied the disproportionality test has been met pursuant to s 107 and that the consequences of conviction are out of all proportion to the gravity of the offence, it may then determine whether it should exercise its discretion to grant a discharge without conviction.35 Rarely will a Court refuse to exercise its discretion to grant a discharge without conviction when the criteria for a discharge under s 107 are satisfied.36
29 At [27].
30 DC (CA47/2013) v R [2013] NZCA 255.
31 R v Smyth [2017] NZCA 530.
32 Prasad v R, above n 34, at [11].
33 At [11].
34 At [11].
35 Z (CA447/2012) v R, above n 28, at [21]; R v Hughes, above n 16, at [8]-[12].
36 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13]; and Police v Filipo [2016] NZHC 2573 at [53(4)].
Analysis
[27] Mr Matete’s appeal against the refusal to grant a discharge against conviction cannot succeed. Counsel for the Crown points out that no s 106 application was advanced in the District Court. He then points to Winterburn v R, in which the High Court confirmed that in the absence of any evidence as to why an application for discharge without conviction was not made at sentencing, or any evidential basis for concluding that a miscarriage of justice had occurred, a discharge without conviction will not be entertained on appeal.37 The case of Ho38 produced today left undetermined as to whether if brought in a district Court, but brought on appeal.
[28] In any case, Mr Matete’s case for a discharge without conviction is not made out.
[29] Counsel for Mr Matete argues that the gravity of the offending was low and that the consequence of conviction, namely the loss of Mr Matete’s income earning ability, is significant.
[30] It does not appear as though Mr Matete has engaged at all with the sentencing Judge’s suggestion that he apply for a limited licence under s 105 of the Land Transport Act. A limited licence would go a substantial way to mitigate any hardship faced by Mr Matete resulting from his disqualification.
[31] Even setting that consideration to one side, Mr Matete has not provided the Court with sufficient evidence or explanation as to how that consequence is all out of proportion to the gravity of the offending, given that his actions ultimately resulted in a person’s death when that was entirely avoidable.
[32] In summary, the gravity of the offending is not at the very lowest end of the scale. The hazard presented by an unlit parked truck would have been well known by the appellant as a professional driver. The appellant was in charge of that truck. He failed to check the lighting. The consequences are substantial – someone died.
37 Winterburn v R [2019] NZHC 104 at [9]–[10].
38 Ho v R [2016] NZCA 229
[33] Accepting the appellant drives for a living there is no evidence to support a conclusion that the consequences are out of all proportion to the gravity of the offence. He should have checked the night light was operational.
[34]On that basis this ground of appeal fails.
Appeal against sentence of 12 months’ disqualification
Approach to appeal
[35] The appeal against the disqualification from driving is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.39 The court must dismiss the appeal in any other case.40 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.41 An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.42
[36]If the appeal is allowed, the appeal court must:43
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, any part of the sentence, or any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action as specified by the appeal court.
[37]While s 250(2) makes no express reference to “manifestly excessive”, in
Tutakangahau v R the Court of Appeal said the concept of “manifestly excessive” was
39 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
40 Criminal Procedure Act 2011, s 250(3).
41 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 39, at [36].
42 Tutakangahau, above n 39, at [36].
43 Sentencing Act 2002, s 251.
“simply a means of examining the significance of the error to decide whether a different sentence should be imposed”.44 A claim which “is inevitably premised on the contention of a prior error” such as a starting point which is too high, incorrect discounts being given, or a lack of parity with co-offenders might qualify.45
Relevant law
[38] Rule 8.7(2) of the Land Transport (Road User) Rule 2004 prescribes that a driver must not park or leave any goods vehicle that is a heavy motor vehicle on any roadway during the hours of darkness unless it displays a visible rearward-facing position lamp. Mr Matete has pleaded guilty to operating a vehicle on a road carelessly causing the death of another person. Under s 38 of the Land Transport Act, he must be disqualified from driving for a minimum period of six months unless s 81 applies.46
[39]Section 81 of the Land Transport Act provides:
81 Mandatory disqualification: court’s discretion if special reasons relating to offence
(1)If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
…
Analysis
Court’s discretion based on special circumstances
[40] Mr Matete submits that the nature of the offending in this case was of a different and lower category than those referred to by the prosecution in sentencing, such that the Court should have found there were special circumstances related to the offending in terms of s 81 of the Land Transport Act. That finding would have enabled the Court to avoid the otherwise mandatory disqualification of six months.
44 At [32].
45 At [32].
46 Section 38(2)(b).
[41] The Supreme Court in Lower Hutt City Council v McAlpine held that special reasons for the purpose of s 81 of the Land Transport Act are special to the facts that constitute the offence and not reasons peculiar to the offender as distinct from the offence.47 The steps to be examined in determining the existence of special reasons are:48
1)whether in law the particular circumstances are capable of constituting special reasons;
2)whether special reasons exist on the facts; and
3)whether the court should exercise its discretion in whole or in part.
[42]A “special reason” was defined in R v Crossen as:49
… a mitigating or extenuating circumstance, not amounting in law to defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into account when imposing punishment.
[43]In Anderson v Police the High Court stated:50
[15] Special reasons “embrace only factors of particular or exceptional character”. The reasons must arise from the circumstances in which the offence was committed or the manner of its commission as a whole. Personal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence, or a part and parcel of the offending itself. The special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences. The special reason must not conflict with the essential purpose of the statutory provision.
[44] In Prue v Police Gendall J described the Court’s task under s 81 as “an amalgam of objective judicial assessment and judicial discretion”.51
47 Lower Hutt City Council v McAlpine [1972] NZLR 168 (SC) at 170.
48 Ministry of Transport v Green (1985) 1 CRNZ 492 at 494.
49 R v Crossen [1939] NI 106 (KB) at 112.
50 Anderson v Police [2016] NZHC 942.
51 Prue v Police [2015] NZHC 1606 at [8].
[45] The threshold to justify departure from the usual penalty under s 81 consequently is high. The facts in this case do not constitute or include any “factors of particular or exceptional character”.
[46] I accept the respondent’s submission that the fact Mr Matete was parked at the time of the offending cannot in itself amount to a special reason under s 81. It is accepted by all parties the appellant has breached a rule of the Land Transport (Road User) Rule.
[47] Mr Mitchell emphasised the fact that someone else was responsible for lights not working which attracted comment by the District Court Judge. Mr Matete was not wholly to blame for the accident in this case as it may not have been his fault the bulb was not operational. Nevertheless, he bears responsibility as the operator of the vehicle to ensure that he was complying with the rules. That there is a strong public interest in ensuring the operators of heavy vehicles ensure they are complying with the road rules, including making themselves visible to other road users.
[48] The tragic consequences of Mr Matete’s carelessness in this case could not have been more serious. Consequently, his carelessness in this respect falls within the class of those acts or omissions the rule was designed to deal with, namely those causing harmful accidents by running into vehicles parked on a road in the dark. To order otherwise than the mandatory disqualification here would in my view conflict with the essential purpose of the statutory provision. In fact,
[49] There are no special reasons relating to the offence supporting a departure from the usual mandatory sentence of disqualification here.
Community-based sentence in lieu of disqualification
[50] Mr Matete has requested that his sentence of community detention be treated as a community-based sentence in terms of s 94 of the Land Transport Act, which enables the otherwise mandatory disqualification from driving to be replaced by a community-based sentence.
[51] Section 94 does not apply to the appellant in this case. Section 94(1)(a) provides for a Court to substitute a community-based sentence in lieu of disqualification applies if the offender “has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence”.52
[52] Section 94 is directed at dealing with recidivist offending. The appellant has not previously been disqualified from driving. He therefore fails to meet the statutory requirement to enable relief under s 94(1)(a).
12-month disqualification manifestly excessive
[53] Finally, the appellant submits there was no need for the Judge to exceed the mandatory minimum six-month period for disqualification under the Land Transport Act.
[54] In support of his argument, the appellant contrasts the 12-month period of disqualification imposed in this case with a nine-month period imposed in Barr v Police.53 The appellant submits the offending in this case was less serious and therefore should not have exceeded the disqualification in that case.
[55] In that case the Judge on appeal considered that the proper range for disqualification case was somewhere between nine and 18 months.54 The Judge reduced the period of disqualification from three years to nine months as the lowest level within the range available to recognise the payment of $8,000 in reparation ordered as well as the “very severe” sentence of community work that had been imposed on sentencing.55
[56] The Court noted in Leaupepe v Police, there is limited utility in comparing disqualification period across cases.56 There is no developed body of case law addressing the principles to be applied in fixing the disqualification periods in excess
52 Emphasis added.
53 Barr v Police HC Rotorua CRI-2011-463-42, 28 November 2011.
54 At [30].
55 At [34].
56 Leaupepe v Police [2015] NZHC 1766 at [7].
of the minimum, and there is little guidance from the higher courts in this respect.57 Consequently, the extent of the discretion available to the sentencing Judge in imposing a disqualification period is “less fettered than that in respect of a conventional sentencing decision.”58
[57] In Hitchens v R the Court of Appeal noted that in imposing sentences of disqualification there are two competing considerations:59
(a)long periods of disqualification typically leave little hope for offenders;
(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.
[58] The Court in Leaupepe suggested the task of the sentencing Judge and appellate Court on review is to “effect an appropriate balance between those considerations”, the fixing of which “depends upon the circumstances of the particular case.”60
[59] The respondent accepts the degree of carelessness in this case was not high. However, the respondent argues that because Mr Matete is a professional driver, he can therefore be expected to have a greater appreciation of his obligations with respect to the safe operation of his vehicle. The respondent rightly points out that Mr Matete’s failure to ensure his vehicle was visible to other road users resulted in a death that was “entirely avoidable”.
[60] However, I do consider that a 12-month disqualification period was manifestly excessive in this case.
[61] While it is true Mr Matete can apply for a limited licence under a 12-month disqualification, I consider a six-month disqualification is appropriate in this case. Despite the present accident, I do not see the appellant as a “dangerous driver” in the
57 At [7].
58 At [9].
59 Hitchens v R CA380/03, 25 March 2004 at [10].
60 At [11].
way that disqualifications are meant to keep “dangerous drivers off the road for as long as reasonably possible.”61 As the Court said in Leaupepe, the principal objective of disqualification is public safety.62 I do not see Mr Matete as posing a threat to other motorists in the future.
[62] The appellant’s submissions emphasise the effects on Mr Matete of his colleague’s death although of course that is nothing compared to the victim’s family’s loss which I bear in mind. But Mr Matete will have to live with the consequences of his carelessness for the rest of his life. It is also to be borne in mind that the appellant was sentenced to community detention.
[63] I do not accept the respondent’s suggestion that the 12-month period is “just above the minimum period”. It is twice as long as the minimum period. There is no benefit that an additional six months of disqualification from driving can have beyond that served by his initial six-month disqualification. In contrast, I can see the benefit to the appellant of a shorter period of disqualification. The appellant drives for his livelihood and I am sure reducing the restriction on the appellant’s driving will be significant for him.
Conclusion
[64] I consider the 12-month disqualification was manifestly excessive in the circumstances.
Conclusion
[65] The appeal is allowed. The sentence is varied only by replacing the period of 12 months’ disqualification with a period of 6 months disqualification (the mandatory period). Otherwise the sentence imposed on the District Court remains.
[66] Mr Matete has already served part of the disqualification period. Mr Mitchell estimated 3 weeks but could not be certain. The period of disqualification already
61 Hitchens v R CA380/03, 25 March 2004 at [10].
62 Leaupepe, above n 56, at [8].
served before it was suspended is should be deducted from the 6 months disqualification. Leave is reserved to apply if necessary, in relation to that issue.
Grice J
Solicitors:
Stephen Mitchell Solicitor Elvidge & Partners, Napier
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