Pearse v Police
[2023] NZHC 2900
•17 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-048 CRI-2023-485-049
CRI-2023-485-050 [2023] NZHC 2900
BETWEEN SAMUEL PEARSE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 October 2023 Appearances:
R O’Hagan for Appellant N Jamieson for Respondent
Judgment:
17 October 2023
JUDGMENT OF GRICE J
(Appeal against convictions)
Introduction
[1]The appellant, Mr Samuel Pearse, appeals against three convictions:
(a)failing to stop when required (third or subsequent), offence date 23 June 2018;1
1 Land Transport Act 1998, ss 52A(1)(a)(i) and (5) — maximum penalty three months’ imprisonment; and mandatory two-year disqualification from holding or obtaining a driver’s licence. The appellant was charged and convicted under s 52A(1)(a)(i) for failing to stop as soon as practicable when signalled or requested to stop under s 114(1). However, this appears to be an error, and the correct charge ought to have been under s 52A(1)(a)(ii), for failing to stop when required to under s 114(2). This was not raised on appeal and all other documents, including those in this appeal, refer to s 52A(1)(a)(ii). Nothing turns on this point.
PEARSE v POLICE [2023] NZHC 2900 [17 October 2023]
(b)driving while disqualified (third or subsequent), offence date 14 August 2020;2 and
(c)driving while disqualified (third or subsequent), offence date 26 September 2020.3
[2] The appellant says he was wrongly charged with failing to stop for the third or subsequent offence under the Land Transport Act 1998 (the Act), as he did not have the prerequisite previous convictions to engage the aggravated form of this charge. The appellant says he wrongly therefore pleaded guilty and was convicted and sentenced in error. The appellant says this error informed the next two wrong-footed convictions for driving while disqualified.
[3] The appellant submits the failing to stop charge was in error because it was his first offence against s 52A, as his previous convictions for failing to stop were in 2006 and 2014, which pre-dated the enactment of s 52A. Accordingly, the appellant says the correct charge was pursuant to s 52A(1)(a)(ii)4 and (2)–(3), with a maximum penalty of a $10,000 fine and possibly six months’ disqualification. The appellant says he was instead charged in the aggravated form (for a third or subsequent offence), which carries a higher penalty, relevantly here a mandatory two-year disqualification from holding or obtaining a driver’s licence.5
[4] The appellant says the error was not discovered by any of the parties involved, and he pleaded guilty to the charge in its aggravated form. He was then sentenced and disqualified from holding or obtaining a driver’s licence for the mandatory two years from 22 August 2019 to 22 August 2021, cumulative on a six-month disqualification for a separate charge of dangerous driving. The appellant says that if he had been properly charged and convicted, the correct maximum penalty of six months’ disqualification would have ended by 22 August 2019 (although this fails to account
2 Sections 32(1)(a) and (4) — maximum penalty two years’ imprisonment or $6,000 fine; and mandatory one-year disqualification from holding or obtaining a driver’s licence.
3 Sections 32(1)(a) and (4) — maximum penalty two years’ imprisonment or $6,000 fine; and mandatory one-year disqualification from holding or obtaining a driver’s licence.
4 See n 1 above.
5 The charge for third or subsequent offending against s 52A(1) also carries a maximum penalty of three months’ imprisonment, but this was not an issue in this case.
for the separate six-month period of disqualification for the dangerous driving charge). The appellant says the conviction for failing to stop and subsequent two-year disqualification were therefore in error.
[5] On 14 August 2020 and on 26 September 2020, the appellant was stopped while driving. He was charged with driving while disqualified (third or subsequent offence) in respect of each. The appellant says that if the correct failing to stop charge had been applied, he would not have been disqualified at the time of either, and these two charges and convictions are therefore also in error.
[6] In respect of the 14 August 2020 offending, the appellant was convicted and sentenced to 40 hours’ community work in lieu of disqualification.6 In respect of the
26 September 2020 offending, he was ultimately sentenced to one year’s imprisonment, concurrent with an 18-month sentence of imprisonment in respect of other non-driving charges. He was also disqualified from driving for 12 months. The consequence of the appellant being disqualified for more than 12 months means he is currently required to re-qualify for his licence, rather than simply to have his licence reinstated.
[7] The respondent submits the appeal against conviction should be dismissed, on the basis that the appellant was correctly charged under s 52A of the Act, as s 52A(1) creates the offence of failing to stop. However, the respondent accepts that the Court may quash the sentence imposed and substitute in its place a sentence of six months’ disqualification, which would have been served cumulatively with the dangerous driving charge. If the Court adopts this course, the respondent would not oppose the appeals against the convictions for driving while disqualified, as the appellant would not have been disqualified from driving at the time.
Leave to appeal out of time
[8] The appellant has brought his appeal against the convictions between 22 and 55 months out of time. However, the delay is said to be due to the alleged error only being realised during recent 2023 court appearances for the appellant.
6 Pursuant to s 94 of the Land Transport Act.
[9] A first appeal court may extend the time allowed for filing a notice of appeal,7 and the “touchstone” is the interests of justice in the given case.8 Leave to appeal out of time is not opposed by the respondent. I am satisfied this is not a matter of disrupting the finality of convictions and sentences lawfully imposed but rather, if the appellant is correct, it redresses a fundamental error in the conviction. Leave is accordingly granted.
Approach to appeal
[10] Section 232(2)(c) of the Criminal Procedure Act 2011 (the CPA) provides that the Court must allow an appeal against conviction if satisfied that a miscarriage of justice has occurred for any reason.
[11] A “miscarriage of justice” is any error, irregularity, or occurrence in or in relation to or affecting the trial that (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.9 A “trial” includes a proceeding in which the appellant pleaded guilty.10
[12] A “real risk” the outcome was affected exists when there is a “reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.11 An unfair trial exists when errors are prejudicial or unacceptably give rise to the appearance of unfairness. The grounds for appealing a conviction following a guilty plea must be exceptional.12 A conviction cannot be impugned where the appellant fully appreciated the merits of the position and made an informed decision to plead guilty.13
[13] If the appeal is allowed, the Court must set aside the conviction.14 The Court has a broad discretion as to next steps,15 including the ability to direct that a judgment
7 Criminal Procedure Act 2011, s 231(3).
8 R v Knight CA210/97, 20 November 1997.
9 Criminal Procedure Act 2011, s 232(4).
10 Section 232(5).
11 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 [110].
12 R v Le Page [2005] 2 NZLR 845 (CA) at [16], endorsed by the Supreme Court in Wilson v R
[2015] NZSC 189, [2016] 1 NZLR 705 at [96]–[97].
13 At [16].
14 Criminal Procedure Act 2011, s 233(2).
15 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.16
Appeal against conviction for failing to stop when required
[14] Section 52A of the Act was inserted by the Land Transport Amendment Act 2017. The appellant was charged with an offence under s 52A(1)(a)(ii),17 which provides that a person commits an offence if the person is the driver of a vehicle that fails to stop when required to stop under s 114(2). Section 114(2) of the Act provides that “[a]n enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.”
[15] Section 52A prescribes escalating penalties where a person is convicted of two or more offences against subs (1), including subs (5), which prescribes higher penalties for persons convicted for a third or subsequent offence against s 52A(1).
[16] I turn to consider Tongalahi v Police, decided last year, which is legally very similar to the present situation.18 In that case, the appellant similarly had previous convictions for failing to stop relating to offending committed before the introduction of s 52A. The appellant appealed his conviction out of time, arguing that he should not have received the greater penalty applicable for a third or subsequent offence against s 52A, as his index offending was his first breach of s 52A specifically. Paul Davison J held that the appellant in that case was correctly charged under s 5.19 His Honour noted:20
[14] The appellant was charged and convicted of the correct offence. Section 52A(1) creates inter alia an offence of failing to stop. While s 52A also provides for escalating penalties where a person is convicted of two or more offences against subsection (1), it does not create a separate offence for failing to stop on a third or subsequent occasion. In other words, a prior conviction is not an essential ingredient of the offence under s 52A(1). The appellant was correctly charged under this provision.
16 Section 233(3).
17 As noted above at n 1, the appellant was charged and convicted of an offence under s 52A(1)(a)(i). However, the summary of facts makes it clear that the correct charge ought to have been s 52A(1)(a)(ii). As noted, nothing turns on this point.
18 Tongalahi v Police [2022] NZHC 1409.
19 At [14].20 At [14]
[17] It was accepted that there was one inaccuracy and two errors in the charging document. The inaccuracy related to the appellant having been convicted of an offence against s 114, whereas these were not offences against s 52A(1). The two errors related to the specified penalties. However, Paul Davison J held that there was no evidence that the errors and deficiencies in the charging document affected the appellant’s ability to consider the case against him or to instruct his counsel.21 The errors did not render the charge a nullity. Rather, the errors related solely to the disclosure of penalties. While s 22(2) of the CPA requires that information to be disclosed, s 22(4) specifically provides that a charge “must not be dismissed solely on the grounds that it does not comply with subsection (2)”. His Honour did not believe a miscarriage of justice had occurred and dismissed the appeal against conviction.
[18] The charging document in this appeal contained the same inaccuracy and the same errors. The appellant in this case was charged with an offence under s 52A(1). Section 52A(5) provides unequivocally that if a person is convicted of a third or subsequent offence against s 52A(1), the Court must order the person to be disqualified from driving for two years. The Judge disqualified the appellant from driving for two years on the understanding, shared by all parties involved at the time, that the offending was the third or subsequent qualifying offence against s 52A(1). However, it was not.
[19] In Martin v Police, decided in 2021, the High Court held that convictions for failing to stop under the predecessor provision prior to the insertion of s 52A were not qualifying convictions for the purpose of increased penalties under s 52A.22 Palmer J considered the text of s 52A was “very clear” that for a previous conviction to qualify for the purpose of the increasing penalties provided for by s 52A, it must be an offence specifically “against subsection (1)” of s 52A.23 His Honour held that “Parliament
21 At [17].
22 Martin v Police [2021] NZHC 1356.
23 At [14].
intended to increase penalties on those who repeatedly offend against s 52A, prospectively.”24 This approach was endorsed and adopted in Tongalahi.25
[20] Palmer J again had reason to consider the issue in July 2023. In O’Rourke v Police, which similarly involved a charge under s 52A(1) on the mistaken basis that it was the defendant’s third or subsequent offence, given his previous convictions under the predecessor legislation, Mr O’Rourke pleaded guilty to the charge after the error was realised and the charge amended accordingly.26 However, the Judge disqualified the defendant from driving for six months. Palmer J allowed the appeal. In respect of the sentence, his Honour noted such a sentence was then only available if it was clear beyond reasonable doubt that the defendant was driving dangerously, which was not the case.27 His Honour also quashed the conviction on the basis that there was a miscarriage of justice, “given that the conviction rests on a guilty plea given when Mr O’Rourke did not appreciate the nature of the charge.”28
[21] Ms O’Hagan submitted that the circumstances surrounding the decision in Tongalahi involved a much more serious set of facts than here. She also points out that there was an appeal against sentence in Tongalahi, which enabled the Court to resentence the defendant, which is not the case here. Ms O’Hagan urged the Court to follow the approach of Palmer J in O’Rourke.
[22] I consider the reasoning in O’Rourke applies in this case. The appellant in this case pleaded guilty on the mistaken understanding that it was his third or subsequent offence. In terms of the legislation, this was not the case. As such he did not fully appreciate the nature of the charge at the time of entering his guilty plea. This gave rise to an unfairness. This cannot be said to be a case where the appellant “fully appreciated the merits of the position and made an informed decision to plead guilty”. I am also satisfied this is a case where there is a “reasonable possibility” that a more
24 At [14].
25 Tongalahi v Police, above n 18, at [21].
26 O’Rourke v Police [2023] NZHC 1805.
27 At [6].
28 At [7].
favourable verdict might have been delivered if nothing had gone wrong, in this case in respect of the ultimate sentence that was imposed.
[23] As such, I consider a miscarriage of justice has occurred in this case. I therefore quash the conviction in respect of the 23 June 2018 offending.29
[24] The Court then has a broad discretion as to next steps. In this case I consider the appropriate outcome is to direct under s 234(2) of the CPA that a judgment of conviction be entered for a different offence, namely a charge under s 52A(1)(a)(ii) and s 52A(3).
[25] The charging document in respect of which the appellant pleaded guilty referred to s 52A(1)(a)(i)30 and s 52A(5). As noted, this was in error, and the charge ought to have referred to s 52A(3), which mandates a six-month period of disqualification, not s 52A(5), requiring a two-year disqualification. However, this is the only respect in which the appellant appeals against his conviction. It is undisputed in all other respects that he was guilty of the charge, and not contended otherwise on appeal. This being the case, I am satisfied that the appellant could have been found guilty of the different offence and the trial Judge must have been satisfied of these facts as well.31
[26] On making such a direction, the appeal Court may impose a sentence that is allowed by law, or remit the proceeding to the sentencing court to impose a sentence.32 I consider it is appropriate to impose a sentence at this juncture. I turn now to consider what that sentence should be.
[27] The respondent submits that while the District Court would not have been bound to impose two years’ disqualification if the charge had correctly referred to subs (3) rather than subs (5), it could still have chosen to do so. The respondent points out that s 80 of the Act, applicable to any offending involving “road safety”, permits a
29 Criminal Procedure Act 2011, s 233(2).
30 As noted above at n 1, this appears to be an error and the correct charge was under s 52A(1)(a)(ii). As noted, nothing turns on this point.
31 Criminal Procedure Act, s 234(2).
32 Section 234(5).
court to impose a period of disqualification “for such period as the court thinks fit”, in addition to any other sentence or disqualification imposed.
[28] I am not persuaded by this argument. The sentence was imposed against the backdrop that the appellant was believed to have committed two qualifying offences previously, and s 52A(5) was therefore the operative provision. The appellant pleaded guilty to a sentence indication on that basis. All parties proceeded on the basis that a two-year disqualification was mandatory, and that disqualification was therefore not seriously disputed, or indeed disputed at all. The only aspect on which the appellant’s counsel at that time addressed the court was in relation to whether the two-year disqualification under s 52A ought to be cumulative or concurrent with respect to any other disqualification, as the appellant was in jeopardy of a six-month disqualification for a separate charge of dangerous driving.
[29] However, as noted, the charge ought to have referred to s 52A(3), which mandates a six-month period of disqualification, not s 52A(5), requiring a two-year disqualification. As such, the sentence ought to have been a six-month disqualification. I do not consider a higher period of disqualification would seriously have been considered but for the mistaken understanding that it was the appellant’s third or subsequent offence against the provision, nor do I consider at this time that any longer period was necessary or appropriate.
[30] I am satisfied that the appropriate sentence in respect of this charge was a period of six months’ disqualification, and this is the sentence I impose for this amended charge. This was to be served cumulatively on any disqualification imposed in respect of the separate charge for dangerous driving. A six-month disqualification was imposed in respect of that charge at the time and I do not interfere with that sentence.
[31] Accordingly, I quash the appellant’s conviction for the 23 June 2018 offending and direct that a judgment of conviction be entered for an offence under s 52A(1)(a)(ii) and s 52A(3) in its place. In respect of that conviction, I impose a sentence of six months’ disqualification, to be served cumulatively on the six-month disqualification imposed in respect of the separate charge for dangerous driving.
Appeal of convictions for driving while disqualified charges
[32] As is apparent, I have found that the two-year disqualification period was imposed in error, and the correct period of disqualification ought to have been six months. The appellant would have finished the term of disqualification around 22 February 2020, the six months being cumulative on the six-month disqualification for dangerous driving.
[33] The respondent accepts that the appellant would not have been driving while disqualified at the time of the latter two charges, and does not oppose the appeal in respect of those charges.
[34] If the correct sentence had been imposed, the appellant’s period of disqualification would have ended around 22 February 2020. The appeals against conviction for the charges for driving while disqualified on 14 August 2020 and 26 September 2020 are allowed. Those convictions are set aside and I direct that a judgment of acquittal is entered in respect of those charges.33
Conclusion
[35] The appeal against conviction for failing to stop when required is allowed. The appellant was incorrectly charged and did not fully appreciate the nature of the charge at the time of entering his guilty plea. This gave rise to an unfairness and I am satisfied there was a miscarriage of justice in this case.
[36] I quash the conviction in respect of the 23 June 2018 offending and direct that a judgment of conviction in respect of that offending be entered for an offence under s 52A(1)(a)(ii) and s 52A(3) in its place. I impose a sentence of six months’ disqualification, to be served cumulatively on the six-month disqualification imposed in respect of the separate charge for dangerous driving.
[37] As a result, the appellant would not have been driving while disqualified when stopped by police on 14 August 2020 and on 26 September 2020. Those convictions are set aside and the appellant is acquitted in respect of those charges.
33 Pursuant to s 233(2) and (3)(a) of the Criminal Procedure Act.
Result
[38] The appeal against conviction for failing to stop when required is allowed. The conviction is quashed and a judgment of conviction under s 52A(1)(a)(ii) and s 52A(3) is to be entered in its place. A sentence of six months’ disqualification from driving is imposed in place of the two-year disqualification, to be served cumulatively on the six months’ disqualification imposed in respect of the charge of dangerous driving. Those periods of disqualification have now been served.
[39] The appeals against the convictions for driving while disqualified are allowed. Those convictions are set aside and a judgment of acquittal is entered in respect of those charges.
Grice J
Solicitors:
Luke Cunningham & Clere, Wellington
4
0