Olivecrona v Police HC Palmerston North CRI 2010-454-19

[2010] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-19

JARON CARL OLIVECRONA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 August 2010

Counsel:Appellant in person (written submissions only) E J McCaughan for respondent

Judgment:      4 August 2010

RESERVED JUDGMENT OF DOBSON J

[1]      This  is  an  appeal  against  the  extent  of  fine  imposed  on  conviction  for sustained loss of traction, contrary to s 22A(3) of the Land Transport Act 1998 (the Act).  The maximum penalty is three months’ imprisonment or a fine of up to $4,500 and a mandatory disqualification from driving for at least six months.

[2]      The conduct leading to the charge occurred at about 1.50am on Saturday,

15 May 2010.   Mr Olivecrona had owned the car he was driving for a matter of hours, when he gathered with others in a roadside car parking area in Palmerston North.   Mr Olivecrona heavily accelerated his vehicle, causing the rear wheels to

lose traction and then maintained a wheel spin through three opposite locks of almost

OLIVECRONA V NEW ZEALAND POLICE HC PMN CRI-2010-454-19  4 August 2010

180 degrees, sliding and drifting over a distance of at least 50 metres before the spinning and sliding tapered off.  He was spoken to by the Police shortly thereafter, having been observed by officers in a marked Police vehicle.   He admitted the driving conduct as described and said he had been showing off and realised it was a stupid thing to do.

[3]      Mr Olivecrona is 18 years old and had no previous convictions.

[4]      The  immediate  consequence  of  being  charged  was  that  Mr Olivecrona’s vehicle was impounded for 28 days under s 96(1A)(b) of the Act, which he advises in his written submissions led to a $400 fee before he was able to take the vehicle out of storage.

[5]      Mr Olivecrona pleaded guilty on the first call of the matter of 20 May 2010 when District Court Judge Binns fined him $800 together with Court costs of $130. In addition, he was disqualified from driving for six months from that date.

[6]      In  commendably  cogent  written  submissions,  Mr Olivecrona  accepts  the other aspects of the sentencing, but appeals from the extent of the fine imposed.  By way of Minute issued on 27 July 2010, I excused him from personal attendance, warning him that matters could be raised on behalf of the Police in his absence.  The Registry received a letter from Mr Olivecrona’s father on the morning of the hearing, acknowledging that Minute, confirming that Mr Olivecrona would not be attending, and stating that they had not received written submissions from the Crown Solicitor. Given the view I have reached on the merits of the appeal, I am satisfied that the matter has been adequately argued.

[7]      The Judge’s short notes on sentencing acknowledge Mr Olivecrona’s youth, the  support  of  his  family,  the  guilty  plea  and  his  previous  good  record.    In challenging the extent of the fine, Mr Olivecrona criticises the absence of a starting point to reflect the seriousness of the conduct, from which a quantified discount should have been allowed for mitigating factors, in particular the appropriate extent

allowed for an early guilty plea.  He refers to the “Hessell principle”.[1]

[1] R v Hessell [2010] 2 NZLR 298 (CA).

[8]      Mr Olivecrona also criticises the Judge for not taking the “totality principle into consideration”.  The “totality principle”, as specified in s 85 of the Sentencing Act 2002, is confined to the circumstances where cumulative sentences of imprisonment are imposed for different categories of conviction, in which circumstance the Court must stand back and be satisfied that the total period of imprisonment is not wholly out of proportion to the gravity of the overall offending. In that statutory sense, therefore, reference to the “totality principle” is inappropriate.

[9]      However, a somewhat analogous point is whether the Judge had regard to the additional  financial  consequences  for  Mr Olivecrona  arising  from  the  28-day impounding, and the cost of retrieving his vehicle at the end of that period.   The totality of the financial cost of the conviction, from Mr Olivecrona’s perspective, amounts to $1,330.  It is not clear whether the Judge had regard to the last $400 of that cost, or not.

[10]     In submissions on behalf of the Police, Mr McCaughan questioned whether that financial consequence ought to be taken into account in assessing the relative severity of the fine.  The Police have no discretion over their obligation to impound the vehicle, and it arises under a different section of the Act so might arguably be sufficiently separate as to be disregarded, as might repair costs in a traffic matter involving damage to the vehicle.   However, at least in the circumstances of this young offender, I consider it to be relevant, at least to the appellant’s ability to meet the  financial  consequences  of  the  activity  in  issue.     Mr McCaughan  validly distinguished  the  relevance  of  this  additional  cost,  if  the  defendant  claims  an inability to pay, which Mr Olivecrona has not.  He is employed full-time, so able to pay a fine, at least by instalments.   Nonetheless, it is an additional adverse consequence of his youthful folly.

[11]     If the learned Judge’s acknowledgement of the guilty plea means that she did comply with the guideline from Hessell, it means a starting point for the fine of

$1,200, before allowing a discount of one third for a prompt guilty plea.

[12]     Mr McCaughan submitted that a starting point of $1,500, then making an allowance for youth, bringing the starting point for this offender to $1,200 was

appropriate by reference to a maximum fine at $4,500.  He submitted that a starting point of one third of the maximum was appropriate here, relative to the range of seriousness of offences of this type.  Certainly, room to escalate above this level is necessary for the more serious features likely to be present in other cases, but absent here, such as more prolonged skidding activity, more difficult weather conditions, other drivers in the area, repeat offenders, and other such circumstances.  Although it is difficult to be precise, I consider that the comparison between conduct such as Mr Olivecrona’s and the most serious possibly justifies a starting point, in cases of this relative seriousness, between a quarter and a third of the maximum.

[13]     Mr Olivecrona’s  submissions  invited  an  analogy  with  the  decision  in McKinley   v   Police,   in   which,   in   addition   to   a   sentence   of   six   months’ disqualification, the appellant had been fined $150 and $130 Court costs for one

360 degree spin in a car park.[2]   He was also young and with no previous convictions,

and the offence is described as carrying no risk as the car park was well lit and empty.  On appeal, the sentence was unaltered.   The conduct here is more serious than in that case.  No additional analogies were suggested by Mr McCaughan.

[2] McKinley v Police [2006] DCR 856 (HC).

[14]     Reference can also be made to the decision in Rae v Police.[3]There, the owner of a very powerful Mercedes had demonstrated the vehicle’s capacity to a group interested, leaving skid marks some 26 metres long on the road.  The District Court imposed a fine of $450 together with costs and six months’ disqualification. An  appeal  against  conviction  was  unsuccessful,  leaving  that  level  of  monetary penalty in place.   It appears the defendant was a more mature person, being the owner of the expensive vehicle and was a motor sport driver.  It can reasonably be inferred  that  he  had  significantly  more  capacity  to  meet  a  fine  than  does Mr Olivecrona.

[3] Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007.

[15]     The notes of Judge Binns on sentencing record the view that the public are “absolutely sick of this sort of behaviour and the penalties are stepping up…”, and that  she  perceived  the  offending  as  requiring  “a  reasonably  strong  deterrent sentence”.  All of the other sentencing decisions for convictions of this type suggest

levels of monetary penalty at a more modest part of the maximum of $4,500.  I do not consider that the relative seriousness of this offending requires it to be treated significantly more seriously than those other sentences.

[16]     It is impossible to grade relative seriousness with any precision, but I am satisfied that a starting point for offending of this relative seriousness is substantially lower than, say, $1,500 (or $1,200 after allowing for youth).   I consider a starting point of $1,000 sufficient, reducing to $750 on account of Mr Olivecrona’s youth. From that point, Mr Olivecrona is entitled to a discount of a third, either on the basis of Hessell on its own, or that fact, together with his prompt co-operation with the Police and absence of previous convictions.   To the extent that an early acknowledgement by entry of a guilty plea might be expected sooner in something as straight forward as this when compared with more complex criminal matters, it may be that a third discount for the early guilty plea is generous.   I consider when the other mitigating factors are acknowledged, the full one third is appropriate.   That produces an end result of a fine of $500.

[17]     I accordingly allow the appeal and substitute for the fine imposed of $800, one of $500.  Other aspects of the sentence remain unaltered.

Dobson J

Solicitors:

J Olivecrona, 101A Roots Street, Feilding

Crown Solicitor, Palmerston North for respondent