P v Police HC Rotorua CRI 2008-463-38

[2008] NZHC 1086

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-38

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 July 2008

Appearances: P Hardie for the Appellant

J D Munro for the Respondent

Judgment:      10 July 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr P Hardie, Jones Howden, Solicitors, Matamata

Mr J D Munro, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

P V NEW ZEALAND POLICE HC ROT CRI 2008-463-38 10 July 2008

[1]      This is an appeal against a decision in the District Court to remand the appellant on bail pending sentence, rather than to remand him at large, and against the condition that was imposed with that bail.  The condition was that the appellant not drive a motor vehicle.

[2]      Mr P   was convicted on 7 April 2008 on a charge of careless use of a motor vehicle causing injury.  The particulars of the offence are not relevant to the matter I have to decide, although I should record that a young boy was struck by Mr P  ’s car when the boy was on a pedestrian crossing.  The young boy suffered severe abrasions and a deep cut and a skin graft was required.   Mr P  ’s explanation was that he had not seen the boy because he was watching other children who were approaching the pedestrian crossing.

[3]      At the hearing on 7 April, following the conviction, the Court recommended that the matter  be referred  to  a restorative justice meeting.    The  appellant  was remanded at large to appear again in the District Court on 10 June for sentence.  On

10 June 2008 the appellant appeared in the District Court at Tokoroa for sentence before a different District Court Judge.  The restorative justice meeting had not taken place because the family of the young boy did not want to participate.  The learned Judge raised the issue of reparation.  Following discussion with Mr Hardie, for Mr P  , who appeared in the District Court as well as on this appeal, the matter was further adjourned to 2 August 2008 for a reparation report.  That adjournment or remand was directed by the learned Judge to be on bail and subject to the condition I mentioned earlier, that Mr P   not drive a motor vehicle.

[4]      Understandably, there is no written note of reasons for the bail decision.  Mr Hardie advised that there had been no prior discussion with the Judge on the point and perhaps that is understandable as bail had not been an issue on the previous remand following conviction.

[5]      The way these things occur in a busy List Court are fully understood, but the position in this Court on appeal is that in the absence of a record of reasons it becomes necessary to look at the matter effectively de novo.   In doing that, and

applying the principles clearly stated by the Court of Appeal in R v Fatu (2005) 22

CRNZ 524 (CA), there does not appear to be a basis for saying that there is a real and significant risk in respect of which the prohibition from driving is relevant.

[6]      For the Police Mr Munro submitted that whilst there is a basis upon which a link between the driving condition and some risk of re-offending on bail might be seen, there is not enough to elevate the risk to real and significant.  That might be seen in the fact that Mr P   was convicted in October 2006 on a careless driving charge with the offence having occurred in February 2006.  On that occasion he was find $500 with Court costs and an order for reparation.   He was not disqualified.

[7]      Assessing the matter along the lines explained in Fatu, and which in fact flow directly from the provisions of the Bail Act, I agree that there is no basis upon which the driving condition could be imposed.

[8]      There are some further considerations which I should mention, although the conclusion just reached would be sufficient to allow the appeal in respect of the condition.  The most significant additional factor is, as other cases indicate, a need to avoid what appears to be the imposition of a penalty before the question of sentence has been considered.   In this case Mr P   faces a mandatory minimum disqualification of 6 months.  The adjournment is for a period of approximately 2 months, so that by the time the sentence comes to be considered there would have been an effective period of disqualification.  Coupled with this is that what amounts to an effective period of disqualification could not be allowed for if Mr P   were to exercise his right on sentencing to argue that there are special circumstances justifying the Court in not imposing the minimum period of disqualification. Considerations of this nature were discussed in the case of Te Pana v Police (HC AK, CRI 2006-404-32, 24 February 2006, Allan J).

[9]      For these reasons the appeal is allowed in respect of the condition imposed on bail.

[10]     The appeal was also directed to the imposition of bail as opposed to a remand at large.   I am not persuaded that there are grounds for my reviewing the Judge’s exercise of his discretion in that regard, and particularly where that is not a matter where reasons would generally be expected in the particular circumstances.

Result

[11]     The bail is allowed to the extent that the condition prohibiting Mr P   from driving, as a condition of bail, is quashed.

Peter Woodhouse J