Payne v Police

[2014] NZHC 328

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000017 [2014] NZHC 328

MICHAEL JAMES PAYNE Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   20 February 2014

Appearances:           Appellant in Person

C Butchard and C Newman for Respondent

Judgment:                28 February 2014

JUDGMENT OF MANDER J

[1]      On the morning of 12 October 2012 the appellant was driving his vehicle through the Weka Pass on State Highway 7 in North Canterbury.  He was observed crossing the marked centre line on the winding road.  The appellant’s vehicle was approximately 80% over the centre line.

[2]      The appellant’s manoeuvre was captured on photograph and he was stopped by Police a short time later.  When spoken to, he at first denied crossing the centre line before accepting his actions and said that he was concerned about demerit points. The appellant was issued with an infringement notice.

[3]      The infringement notice alleged an offence against s 40 of the Land Transport Act 1998, reg 4 of the Offences and Penalties Regulations 1999 and r 2.1(1) of the Road User Rules 2004 in that he did drive a vehicle on a road and failed to drive as

near as practicable to the left side of the roadway.

PAYNE v NEW ZEALAND POLICE [2014] NZHC 328 [28 February 2014]

[4]      The appellant was sent a reminder notice in respect of the alleged offence on

22 November 2012 subsequent to which the appellant advised that he did not admit liability and requested a hearing.  In accordance with the procedure set out in s 21 of the Summary Proceedings Act 1957 a notice of hearing was served on the appellant advising  that  the  matter  would  be  heard  by  the  District  Court  at  Rangiora  on

23 January 2013.  Arrangements were then made for the matter to be transferred to the Christchurch District Court for the purposes of a defended hearing on 26 July

2013.    At the appellant’s request that hearing date was vacated and a new fixture date set for 29 November 2013.  On 27 November 2013 the appellant advised the District Court in writing that he wished to plead guilty to the charge.   He requested that “the Court case be withdrawn so that I am not liable for Court costs”.

[5]      The matter came before Justices of the Peace who in the absence of the appellant  sentenced  the  appellant.    The  appellant  was  not  required  to  attend  in person. The notes on sentencing of the Justices of the Peace read as follows:

In the matter of Michael James Payne, he has pleaded guilty by letter.  He is convicted and fined $500 plus Court costs of $132.89, and further he is disqualified from holding or obtaining a drivers licence for three months commencing 30 January 2014, and that disqualification is made under s 80 of the Act, as it is a road safety matter.

[6]      The appellant remained in ignorance of his disqualification as notice of his disqualification was sent to an old address of some years’ vintage.  It was only upon the appellant applying to renew his driver’s licence that he was advised he had been disqualified.  After making enquiries to verify the position the appellant was finally served with the notice when he attended at the Christchurch District Court to file a notice of appeal on 5 February 2014.   He applied for his disqualification to be suspended pending his appeal, however, on 10 February 2014 the Justices declined his application.

[7]      At the hearing of the appeal I invited the appellant to appeal the refusal to suspend his disqualification pursuant to s 107(2)(a) of the Land Transport Act and defer the disqualification order until 6 March, pending the determination of the substantive appeal.  Ms Butchard for the respondent has in the interim kindly filed

further submissions addressing the issue of the Justices’ jurisdiction in respect of the

disqualification order.

[8]      The appellant’s challenge to the disqualification raises the issue of whether Justices of the Peace in sentencing the appellant for an infringement offence had jurisdiction to impose such a disqualification.  In examining that issue it is necessary to traverse something of a statutory labyrinth. Some of the references are to sections of the Summary Proceedings Act 1957 which have now been replaced by provisions of the Criminal Procedure Act 2011.  They however still have application because this was a proceeding commenced before 1 July 2013.

[9]      Section 9A of the Summary Proceedings Act 1957 prescribed the jurisdiction of Justices:1

9A      Jurisdiction of Justices in respect of summary offences

(1)       A Court presided over by 2 or more Justices has jurisdiction in respect of a summary offence in the following cases, and in no other case, namely:

(a)       In  any  case  where  the  enactment  creating  the  offence expressly provides that jurisdiction may be exercised by a Court presided over by a Justice or Justices:

(b)       In any case where by any enactment jurisdiction is expressly given to a Justice or Justices:

(c)      In any case where the offence is an infringement offence.

(2)       A Court presided over by one Justice has jurisdiction in respect of a summary offence in the following cases, and in no other case, namely:

(a)       In  any  case  where  the  enactment  creating  the  offence expressly provides that jurisdiction may be exercised by a Court presided over by one Justice; or

(b)       In any case where by any enactment jurisdiction is expressly given to one Justice.

1      Historical text 30 June 1998 to 30 June 2013.  See s 355 Criminal Procedure Act 2011 post 1

July 2013.

[10]     Section 2 defines an infringement offence as:

infringement offence means any offence under any Act in respect of which a person may be issued with an infringement notice:

[11]     In turn an infringement notice is defined as:

infringement notice means a notice issued under-

...

(g)       section 139 of the Land Transport Act 1998;

[12]     I turn now to the Land Transport Act.  Section 40 provides as follows:

40       Contravention of ordinary rules

(1)       A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time  being  prescribed  as  an  offence  by  regulations  made  under section 167.

(2)       If a person is convicted of an offence referred to in subsection (1), the  person  is  liable  to  the  applicable  penalty  set  out  in  the regulations.

[13]     The relevant provision of the Land Transport (Road User) Rule 2004 reads:

2.1      Keeping left

(1)       A driver, when driving, must at all times drive as near as practicable to the left side of the roadway unless this rule otherwise provides.

...

[14]     The  Land  Transport  (Offences  and  Penalties)  Regulations  1999  are  as follows:

4        Infringement offences

(1)       A breach of a provision specified in the first column of Schedule 1 for which an infringement fee is specified in Schedule 1 is an infringement offence against the Act.

The first column of Schedule 1 lists r 2.1 for which an infringement fee is specified.

[15]     An enforcement authority has a choice in the way it may proceed in respect of an offence specified in the first column of Schedule 1.  Section 138 of the Land Transport Act provides:

138     Infringement offences

(1)      If a person is alleged to have committed an infringement offence, the person may either-

(a)      be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or

(b)      be served with an infringement notice as provided in section

139.

...

In the present case the Police elected to serve the appellant with an infringement notice.

[16]     The infringement notice issued to a driver advises that if the infringement fee is paid within 28 days of the service of the notice no further enforcement action will be taken against the driver.   Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999 provides that for a breach of r 2.1 of the Land Transport (Road User) Rules 2004 the infringement fee is $150 and the maximum penalty on conviction $1,000.

[17]     The infringement notice advises that demerit points may apply and that they will be recorded against the driver’s name upon payment of the infringement fee (or upon conviction for the offence).   Under the heading  further action a driver is advised that if the driver wishes to deny liability for the alleged offence and request a Court  hearing  they  must  write  to  the  enforcement  authority.    This  is  what  the appellant did in the present case.   The notice further advises that in the case of a driver denying liability and requesting a Court hearing, the enforcement authority will then, if it decides to commence Court proceedings in respect of the alleged offence, serve the driver with a notice of hearing setting out the place and time at which the matter will be heard by the Court.  A driver is further advised that, “If  the Court finds you guilty or you make submissions, costs will be imposed in addition to

any penalty”.     The reminder notice and notice of hearing in respect of an infringement offence is to similar effect.

[18]     Section  21  of  the  Summary  Proceedings Act  sets  out  the  procedure  for infringement offences.  Section 21(9) provides:

21       Procedure for infringement offences

...

(9)      Where a defendant is found guilty of, or pleads guilty to, an infringement offence for which an infringement notice has been issued, the Court shall order the defendant to pay costs of the prescribed amount in addition to the fine (if any) and other costs (if any) ordered by the Court.

No other penalty is referred to in the subsection.

[19]     The appellant wrote to the Court requesting to plead guilty.  The procedure set out in s 21(8)(c) and (d)(iii) provided that such notice was to be treated as if it were a notice of the defendant pleading guilty to the offence pursuant to s 41 of the Summary Proceedings Act.2     Section 41(1) provided that in such a situation the Court will have the same power to deal with an offender as if he had appeared before the Court and pleaded guilty.

[20]     Section 80 of the Land Transport Act provides as follows:

80General penalty of disqualification may be imposed if offence involves road safety

(1)       If a person is convicted of an offence against this Act, and the court is satisfied that the offence relates to road safety, the court may order that the person be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.

(2)       The power conferred by subsection (1) is in addition to, and does not limit, any other powers of the court.

2      See Criminal Procedure Act 2011, s 38 post 1 July 2013.

[21]     In reliance on this provision the Justices imposed the disqualification on the appellant.   The issue  that  arises  is  whether a  person  can  be “convicted” of  an infringement offence.  Section 78A of the Summary Proceedings Act provided:3

78A     Conviction not to be recorded for infringement offences

(1)       Notwithstanding any other provision of this or any other Act, where in  proceedings  for  an  infringement  offence  (whether  being  an offence for which an infringement notice has been issued or not) the defendant is found guilty of, or pleads guilty to, the offence and the Court  would,  but  for  this  subsection,  convict  the  defendant,  the Court shall not convict the defendant but may order the defendant to pay such fine and costs and may make such other orders as the Court would be authorised to order or make on convicting the defendant of the offence.

(2)       Every reference in this or any other Act or in any regulation or bylaw to a conviction for an offence shall, in relation to an infringement offence where-

(a)      An order has been made as referred to in subsection (1) of this section that the defendant pay a fine and costs; or

(b)      An order is deemed by virtue of section 21(5) of this Act to have been made that the defendant pay a fine and costs,-

be deemed to be a reference to the making of that order.

[22]     Ms Butchard on behalf of the respondent argues that s 78A gave the Justices jurisdiction as on the face of the section the Court is empowered to make such other orders as the Court would be authorised to make on convicting the defendant.  That however begs the question whether “but for this subsection” the Court could have convicted the defendant.  In my view, the section is declaratory or is in clarification of the pre-existing position in respect of infringement offences, that a conviction could not be entered in respect of such an offence.

[23]     Section  78A  confirmed  Parliament’s  intention  that  a  person  cannot  be convicted for an infringement offence.   Ordinarily, in the summary and indictable jurisdiction a person can only be the subject of penalty upon conviction.   Offence provisions prescribing maximum penalties are drafted in such terms.   While the effect of s 78A is to leave no doubt that a defendant who chooses to challenge an

infringement notice before the Court cannot be convicted, in my view, a defendant

3      Historical text 1 November 1987 to 30 June 2013, since repealed. Criminal Procedure Act 2011, s 375 post 1 July 2013.

was never in jeopardy upon exercising their right to dispute liability in respect of an infringement offence of being “convicted”.

[24]     Section 78A preserves the Court’s power to order a defendant to pay a fine and costs in the absence of being able to enter a conviction for an infringement offence and additionally to make such other orders as the Court would be authorised to order or make on convicting the defendant.  I do not read the reference to “such other orders as the Court would be authorised to order or make,” as extending to the making of a disqualification order.   Rather the reference to such other orders are those ancillary to the imposition of a fine and the payment of costs of a prescribed amount as contemplated by s 21(9) being other costs or fees associated with the commission of the infringement offence.

[25]     Section 21(9) provides for the imposition of costs in addition to the fine (if any) and other costs (if any) where a person is found guilty or pleads guilty to an infringement offence for which an infringement notice has been issued.   The procedural  code  for  infringement  offences  contained  in  the  section  makes  no reference to a defendant being liable to a disqualification.  More fundamentally the prescribed statutory procedure bestows no authority on the District Court to impose a conviction where a person is found guilty or pleads guilty to an infringement notice. This is to be compared with ss 67(2) and 68(1) of the Summary Proceedings Act which empowered a District Court to convict a defendant for a summary offence,

where a guilty plea was entered or after hearing the evidence adduced by each party.4

While  a  defendant  who  requests  a  hearing  renders  themselves  liable  to  the imposition of a fine greater than the infringement fee that would otherwise apply and to an award of costs, no conviction can be imposed by the Court from the entry or finding of guilt.

[26]   Neither the infringement notice, the reminder notice in respect of an infringement offence nor the notice of hearing,  advises that the defendant is in jeopardy of a conviction nor of the possibility of disqualification.  The notices advise of the risk of the imposition of costs upon a defendant disputing the infringement

offence.   The reason for the explicit reference to a defendant’s liability for costs

4      See Criminal Procedure Act, s 114 post 1 July 2013.

which is also specifically referred to in s 21(9), is the distinct type of jeopardy which a defendant becomes liable to beyond the imposition of a monetary penalty upon deciding to dispute the infringement notice.   Had persons seeking to dispute the infringement offence rendered themselves liable to the entry of a conviction against their name or to a restriction on their freedom of movement by way of disqualification, such liability would need to have been explicit in the statute. Similarly, it would  have been thought  the various notices issued  as part of the infringement offence procedure would have made express reference to such consequences.

[27]     I am  fortified  in  this  view by various  commentaries  and  authorities  that discuss the infringement offence procedure.  The New Zealand Law Commission in a 2005 report which examined the infringement system stated:5

236.It is a reflection of their historical antecedents that infringement offences are presently criminal matters. ...

237.The infringement procedure itself is less reflective of the criminal process.  First, the process is essentially an administrative one and is not commenced by court proceedings.  In the vast majority of cases, where the defendant wishes to raise a matter with respect to the issue of  an  infringement  notice,  it  is  dealt  with  by  the  prosecuting authority. Although the defendant has the right to have the case dealt with by the court, that right is exercised in only a small minority of cases.  Secondly, no conviction attaches to an infringement offence. Even where the matter is heard by the court at the request of the defendant,  no  conviction  is  entered.    The  essence  of  criminal sanction is thus absent.  ...

[28]     In Wood v Police6 Gendall J stated:7

... I reject the appellant's submission that the notice of hearing changes the offence or possible penalties The notice of hearing clearly states that it is in respect of an infringement offence. Section 21(9) comes into play where a defendant is found guilty of, or pleads guilty to an infringement offence for which the Infringement Notice has been issued. In that case the Court shall order a defendant to pay costs of the prescribed amount in addition to the fine (if any) and other costs (if any) ordered by the Court. I do not accept Mr Ellis' submission that the possible penalty for such an offence — by the reference to Regulation 21(1) and 136(e) — was a fine of $500 and possible

5      Law Commission The Infringement System:  A Framework for Reform (NZLC SP16, 2005) at

Ch 7.

6      Wood v Police HC Wanganui AP1/98, 24 March 1998.

7      At 5-6.

disqualification.   The   possible   penalty   is   only   that   recorded   for   an infringement offence in the nature of a speeding offence ...

Furthermore, pursuant to s 78A of the Summary Proceedings Act 1957:

“Where in any proceedings for an infringement offence … the defendant is found guilty, or pleads guilty to, the offence and the Court  would,  but  for  this  subsection,  convict  the  defendant,  the Court shall not convict the defendant but may order the defendant to pay such fine and costs and may make such other orders as the Court would be authorised to order or make on convicting the defendant of the offence ”

The action of the learned District Court Judge in stating that the appellant “will be convicted accordingly” is therefore in error. However if the infringement offence was properly proved the imposition of the fine, at the same level of the infringement fee together with costs was entirely appropriate.

...

As  I  have  indicated  the  only  penalty  that  can  be  imposed  for  this infringement offence is a fine equivalent to the infringement fee specified in the Second Schedule of the Transport Act 1962, together with costs.   The order made by the District Court Judge that the appellant attend a defensive driving course cannot stand and to that extent the order is quashed  ... Any record of conviction is therefore quashed. ...

(Emphasis added)

[29]     In Nelson City Council v Howard8 MacKenzie J held:9

[25]  ... The  combined  effect  of  s  21(9)  and  s  78A  of  the  Summary Proceedings Act is that, where the Court is dealing with an infringement offence, the power of the Court is to impose a fine which the Court could impose if the defendant had been summarily convicted.  ... The amount of the infringement fee which is payable under the infringement notice procedure is not the penalty which the Court could impose. ...

(Emphasis added)

[30]     It is to be noted that Mackenzie J held that the fine that could be imposed was one that could be imposed if the defendant had been “summarily” convicted; clearly the defendant had not been so convicted.  Insofar as the Court in Nelson City Council differed from that in Wood as to the level of the fine that could be imposed for an infringement offence, I am in agreement with Mackenzie J that a sentencing Court

has a discretion to impose a fine of an appropriate amount within the maximum

8      Nelson City Council v Howard [2004] NZAR 689 at (25).

9 At [25].

prescribed had the defendant been convicted of a summary offence.  The Court is not limited to a sum equivalent to the level of the infringement fee, as indicated in Wood.10

[31]     In Overington v Police Harrison J, after referring to s 78A of the Summary

Proceedings Act 1957, observed:11

... This provision confirms that a conviction shall not be entered for an infringement   offence.   Accordingly,   in   the   absence   of   a   conviction Mr Overington  was  never  at  jeopardy  at  any  time  before  the  charge  of dangerous driving was laid on 24 November 2004.

(Emphasis added)

[32]     It is implicit in the use of the word “confirms” that no conviction could be entered notwithstanding the effect of s 78A.

[33]     It is apparent from the case law that where an infringement offence passes out of  the  administrative  procedure  and  into  the  Court  either  by  the  enforcement authority electing to proceed summarily, or by the defendant requiring the matter to be heard by the Court, a fixed infringement fee becomes redundant.  The matter is able to be dealt with by the Court in the usual judicial manner and the normal principles  of  sentencing  can  be  expected  to  apply.    In  Moses  v Auckland  City

Council12 the Court held that once the appellant in that case requested a hearing, the

proceeding against him left the infringement regime (the administrative regime) and moved into the process set out in s 21 of the Summary Proceedings Act.    Section

21(9) however contemplates a defendant only becoming subject to the payment of a fine, the payment of costs in the prescribed amount and other costs (if any) awarded by the Court.  It is to be emphasised again that no reference is made either to the entry of a conviction or to a separate discrete penalty such as disqualification.

[34]     Justices  of  the  Peace  have  a  limited  jurisdiction  which  is  prescribed  by statute.  In the absence of explicit and express conferment of jurisdiction to impose disqualification orders under s 80 of the Land Transport Act such jurisdiction is not

to be inferred.  The position in respect of Justices of the Peace is to be compared

10     See also Evans v Police HC Dunedin CRI-2007-412-67, 21 February 2008, to similar effect.

11     Overington v Police HC Auckland CRI-2006-404-125, 12 February 2007 at [16].

12     Moses v Auckland City Council HC Auckland CRI-2010-404-306, 21 December 2010.

with the statutory authority conferred on Community Magistrates who have been provided with an express power under s 80 to impose disqualification orders in respect of a limited category of summary offences.

[35]     Section 9D of the Summary Proceedings Act prescribes explicitly the powers which  may  be  exercised  by  a  District  Court  presided  over  by  one  or  more Community Magistrates in respect of certain summary offences.   If that offence is one to which s 80 of the Act applies the Community Magistrate is empowered by subs (1)(a) to make an order disqualifying the person from holding or obtaining a driver’s licence for such period as the Court thinks fit. A number of observations are to be made.   Firstly, the Community Magistrate’s power to order disqualification pursuant to s 80 is in respect of summary offences only, not infringement offences. Secondly, no equivalent jurisdiction has been expressly conferred on Justices of the Peace.  It would be odd indeed if it was considered necessary to provide an express statutory power to confer jurisdiction on Community Magistrates in respect of the discretion to disqualify under s 80, but that such jurisdiction is to be assumed as implicit in respect of Justices of the Peace when sentencing for less serious infringement offences.

[36]     If I am wrong in respect of the question of jurisdiction I would in any event allow the appeal on its merits.   The responsible enforcement agency assessed the seriousness of the breach of the Land Transport (Road User) Rules and chose to proceed by way of an infringement notice.  The relative seriousness of breaches of the Land Transport (Road User) Rules encompass a wide spectrum of conduct.  A reliable indicator of where the appellant’s conduct sat along that continuum was reflected  in  the  Police’s  decision  not  to  lay  an  information  in  the  summary jurisdiction of the District Court.  It is apparent that the prosecutor was not seeking the imposition of a term of disqualification and indeed the imposition by the Court could be interpreted as a punitive response to the appellant exercising his right to be heard and contest the allegation.  No reasons were given by the Justices of the Peace as to why they considered this particular breach of a rule which intrinsically relates to road safety as opposed to any other breaches of the same rule ought to attract disqualification.

[37]     The appellant effectively delayed the consequences arising from his illegal driving.   In particular it is apparent that the appellant was concerned about the imposition of demerit points.  The appellant’s traffic history shows that he regularly breaches traffic rules and by October 2012  had accumulated a large amount of demerit points such that his licence was suspended on 31 October 2013 for three months.  While the appellant’s driving record does not reflect well on him, the three month disqualification imposed by the Justices was in respect of one discrete breach of the traffic rules which would ordinarily attract a limited number of demerit points, and comes on top of a three month suspension of his licence.  That suspension was for accumulated demerit points collected over a period of time for a number of separate breaches.   It illustrates that the imposition of a further three month disqualification period for one single infringement offence was excessive and manifestly so.

[38]     The fine imposed on the appellant was significant representing over half the maximum penalty of $1,000, and over three times the infringement fee that he would otherwise have been liable had he not sought to originally contest the matter. Additionally, he must pay Court costs of $132.89.   In my view the monetary consequences for the appellant is an adequately firm response.  Clearly the appellant was afforded no credit for his belated acknowledgment of guilt.   In any event no appeal lies in respect of the fine imposed.

[39]     The appeal is allowed and the appellant’s disqualification from holding or obtaining a driver’s licence for three months commencing 30 January 2014 is quashed.

Solicitors:

Raymond Donnelly & Co, Christchurch