P v Police HC Invercargill Cri-2010-425-11
[2010] NZHC 1607
•31 August 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2010-425-000011
P
Appellant
v
POLICE
Respondent
Hearing: 31 August 2010
Appearances: S Vidal for Appellant
M Sinclair for Respondent
Judgment: 31 August 2010
ORAL JUDGMENT OF HON. JUSTICE FRENCH
Introduction
[1] This is an appeal against conviction and sentence.
[2] Following a defended hearing in the District Court, the appellant Mr P was convicted of the offence of driving on the road contrary to a limited licence (s
32(1)(b) Land Transport Act 1998). He was fined $900, ordered to pay Court costs
of $130 and disqualified from driving for nine months.
P V POLICE HC INV CRI-2010-425-000011 31 August 2010
Factual background
[3] At the hearing it was common ground that Mr P was a disqualified driver who had been granted a limited licence. The prosecution case was that on the day in question he had breached the conditions of his limited licence in that:
i) He was not driving for work purposes. ii) He failed to complete a logbook.
iii)He did not identify himself as a disqualified driver immediately when stopped.
[4] At the hearing, the prosecution called one witness, Senior Constable Cherry. Senior Constable Cherry testified that on 19 December 2008 he was stationed at a police check on Lake Hayes Road near Queenstown when he observed the appellant’s vehicle come round the corner towards the checkpoint. According to the senior constable’s evidence, as the vehicle came into view it immediately turned into a driveway, then reversed and headed back the way it had come. Senior Constable Cherry followed in his patrol car and stopped the vehicle. It was being driven by the appellant, Mr P .
[5] Senior Constable Cherry said he asked Mr P to produce his driver licence, whereupon Mr P produced a limited licence. The police officer knew it was a limited licence because a limited licence is coloured pink, as distinct from the standard green licence.
[6] Noting it was a limited licence, Senior Constable Cherry then asked Mr P to produce the Court order authorising a limited licence and listing its conditions. Mr P was carrying a copy of the Court order in his car, and he showed it to the officer.
[7] Senior Constable Cherry then asked Mr P to produce a logbook, which he was required to fill out for each journey. Mr P replied he did not have one, had not read the order properly and did not know he had to maintain a logbook.
[8] Mr P was wearing a tuxedo suit. Having been advised Mr P was a painter and decorator, Senior Constable Cherry said he commented he was unlikely to be dressed in that manner for work purposes. Mr P ’ response was that he was going to a wedding at a residence at Millbrook. The officer then informed him he had breached the conditions of his licence and he would be charging him.
[9] At the hearing, Senior Constable Cherry produced a certified copy of the Court order. When asked whether he could recall what was on the limited licence itself, the officer stated (transcript, page 12):
A.Just the standard licence details, name, date of birth, licence number is all I recall.
Q. And what was the name on the licence? A. Ross Francis P .
[10] In addition to Senior Constable Cherry’s evidence, the police had also wanted to adduce a written hearsay statement from NZTA about the contents of limited licences. However, the Judge ruled the evidence was inadmissible on the grounds that it did not satisfy the prerequisites of the Evidence Act 2006.
[11] After the police had concluded their evidence, counsel for Mr P , Ms Vidal, submitted there was no case to answer because the police had failed to prove the terms of the limited licence. The Judge, however, ruled there was a case to answer, giving his reasons as follows (transcript, page 18):
At the end of the prosecution case, defence counsel submits that there is no case to answer because the charge is one of driving contrary to limited licence. The evidence produced to prove the terms of the limited licences are the terms of the Court order. The authenticity of the Court order is not in question. It is suggested that there may have been terms on the limited licence that differed from those in the order. There is in fact no evidence before me to suggest that any such conditions are on the licence. I am satisfied that there is a case for the defence to answer because, on the face of the evidence that I have received, the terms of the limited licence are proved.
[12] Once the Judge had ruled there was a case to answer, Mr P gave evidence himself. His version of events was that the reason he had driven up the driveway was not because he had seen the patrol car, which he had not, but because he was trying to locate some prospective clients. The homeowners told him the people he was looking for did not live there, so he reversed back out of the driveway.
His claim therefore was that at the time the officer saw him he was on work-related business.
[13] In his decision the Judge said he did not believe Mr P ’ explanation, and that he was satisfied beyond reasonable doubt that he was on a social journey rather than anything to do with his work. Further, the Judge said he was satisfied Mr P was fully aware of the terms of his licence and knowingly in breach. The Judge said he was also satisfied that Mr P knew he was required to complete the logbook as set out in the order, and that he failed to do so because he knew the journey he was undertaking would not have been a legitimate transaction to include in the logbook.
[14] As for the allegation that he had failed to identify himself as a disqualified driver, the Judge found that allegation not proved. The Judge said the issue had to be approached on a reasonable basis, pointing out that within a very short time of being stopped and commencing his discussions with Senior Constable Cherry, Mr P had produced his limited licence.
Grounds of appeal against conviction
[15] On the appeal against conviction, Ms Vidal seeks to challenge the District
Court Judge’s ruling on the no case to answer submission.
[16] Ms Vidal contends the Judge was wrong when he found it was not necessary for the police to prove the conditions of the limited licence and that the charge should have been dismissed. She responsibly accepts that the appellant’s own evidence did subsequently provide proof of the terms of the licence. However, her focus is on the Judge’s ruling, which she says was wrong and given before that evidence was adduced.
[17] I am unable to accept this argument for two reasons.
[18] First, following the decision of Davies v Glover [1947] NZLR 806, on an appeal against conviction the appellate Court considers the evidence as a whole. An appellate Judge may therefore dismiss the appeal even if he or she thinks the Judge
in the District Court ought to have ruled there was no case to answer at the end of the prosecution’s evidence. In this case it is conceded the evidence considered as a whole did establish the terms of the licence.
[19] Secondly, in any event, I consider the Judge’s ruling was correct. In P v District Court at Queenstown & Anor HC Invercargill CIV-2009-425-000509, 16
March 2010, this same issue was considered by Fogarty J in relation to this case, albeit in a judicial review setting. The issue for determination by Fogarty J was whether the Crown could prove the terms of the licence by the combination of the Court order and evidence of sighting a pink driving licence. Fogarty J held at [32]:
I am satisfied that production by the driver of a pink driver’s licence is proof that he holds a limited licence. The terms of that limited licence are then proved beyond reasonable doubt by the production of the Court order. Whether or not he is driving in breach of the limited licence is judged against the terms of the Court order.
[20] Ms Vidal sought to distinguish this decision on the grounds it was a judicial review. However, I am satisfied the principles enunciated in the decision are equally applicable in the context of the actual criminal hearing itself.
[21] The appeal against conviction is accordingly dismissed.
The appeal against sentence
[22] As I have mentioned, the Judge fined Mr P $900, ordered him to pay
Court costs of $130 and disqualified him from driving for nine months.
[23] In his sentencing notes the Judge made the following observations:
[4] There is of course a range of penalties that are imposed with respect to disqualified driving but in my experience and my practice, which is consistent, generally speaking, with that of other Judges, for a first offence for driving while disqualified or driving contrary to the terms of a limited licence a fine within the range of $600 is ordinarily imposed, together with Court costs of $130. In addition to that, the minimum period of disqualification of six months is ordinarily imposed. Disqualification is an important part of sentencing because it has a far greater punitive and deterrent impact on offenders than do fines, which are often not paid, or paid off over a period of time. Disqualification has a much greater impact.
[5] I am of the opinion that the starting point for offending where there is a minimum statutory period of six months should ordinarily be nine months, so that offenders who plead guilty get a credit of one third, or three months, and then receive the minimum mandatory sentence. If that were not the case then I think the whole point of guilty plea discounts would be undermined. In your case, then, I take the view that your breach is relatively ordinary and that deprivation of credit for your guilty plea will be sufficient to answer the other unsatisfactory features of your case, including the fact that I think you endeavoured to construct a defence where there s none by resorting to untruths.
[6] I take the starting point to be a fine of $900. There are no mitigating factors that would cause me to reduce that and I impose that fine. you are ordered to pay Court costs of $130. I take the starting point for disqualification to be nine months and I impose that disqualification.
Grounds of appeal
[24] In appealing the period of disqualification and the fines, Ms Vidal submits both are out of line for penalties ordinarily imposed in the District Court for this sort of offending. She contends that ordinarily the fine for a first offender such as Mr P would be in the vicinity of $500, and only the minimum period of disqualification (six months) would be imposed. She therefore submits the sentence was manifestly excessive.
[25] Secondly, she submits that the Judge has made an error in principle, in particular in the way he applied R v Hessell [2010] 2 NZLR 298 to the period of disqualification. In effect, she contends that the Judge has punished Mr P for defending the charge, which is a breach of the Bill of Rights Act 1990.
[26] Thirdly, Ms Vidal contends that in any event, if the Court of Appeal decision of Hessell does have the effect that the Judge appears to have considered it did, Hessell should not have been applied because this offence was committed before Hessell was decided.
[27] For her part, counsel for the police, Ms Sinclair, submits that regardless of methodology, neither the fine nor the period of disqualification was manifestly excessive.
Discussion
[28] Turning first to the last point made by Ms Vidal, about the retrospective application of Hessell, that argument is not sustainable because the Court of Appeal itself states at [74] of Hessell that the guidelines enunciated are to be applied as from the day following its decision. It follows that the fact the offence was committed before Hessell was decided is irrelevant.
[29] Where, however, I consider Ms Vidal is on strong ground is in relation to the way in which the Judge has approached the disqualification period. He does not mention Hessell specifically, but it is clear that he had it in mind.
[30] In my view the statutory expression of a minimum period of disqualification should not automatically represent the starting point as an appropriate level for a first offender. It is simply to be regarded as a minimum and nothing more. The actual period of disqualification will depend on a variety of considerations arising in the particular case before the sentencing Judge.
[31] It follows that in my view the Judge was wrong to in effect artificially inflate the period of disqualification in order to give a discount to those who plead guilty. That methodology is in fact contrary to comments made by the Court of Appeal in Hessell itself at [51].
[32] Given there has been an error of principle, I consider the appeal should be allowed in relation to the period of disqualification.
[33] As regards the level of the fine, there were aspects of Mr P ’ conduct on the day that are and were capable of being seen as aggravating features. I accept Ms Sinclair’s submission that the level of fine was within range and cannot be seen as manifestly excessive. The same errors of principle do not apply to the Judge’s approach to the fines as to the disqualification where a statutory minimum is imposed. I am therefore not prepared to interfere with the level of the fine.
Outcome
[34] The outcome of this appeal hearing is therefore as follows:
i) The appeal against conviction is dismissed.
ii)The appeal against sentence is allowed in part, in that the period of disqualification of nine months is quashed and substituted with a period of disqualification of six months.
Solicitors:
Southern Law, Invercargill
Crown Solicitor’s Office, Invercargill
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