Police v P Cri-2010-441-11 HC Napier

[2010] NZHC 474

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-441-000011

POLICE

Appellant

v

P

Respondent

Hearing:         13 April 2010

Appearances: F E Cleary for Appellant

J Krebs for Respondent

Judgment:      13 April 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is a Solicitor-General’s appeal against sentence.  It relates to the period of disqualification that was imposed in the District Court in respect of a charge of careless driving causing injury.

[2]      The facts of the offending were that the respondent, Ms P  , failed to give way to a motorcyclist at an intersection.  She had stopped for other traffic, but then pulled out without having seen the motorbike.  Both the rider and his passenger were thrown off the bike and across the road.  The motorcycle rider received a fractured pelvis and required a plate and pins to be inserted in his left foot, while the passenger also received a fractured pelvis.  The motorbike, a Harley Davidson, was extensively

damaged and written off.

POLICE V P HC NAP CRI-2010-441-000011  13 April 2010

[3]      The information before the District Court Judge included a victim impact report which showed that the accident had had a very significant impact on both the injured people.

[4]      The respondent was a first offender.  She was very remorseful and pleaded guilty at the earliest opportunity.  There was no suggestion of speed.

[5]      As is only to be expected in a busy District Court list, the sentencing notes are brief.  They read as follows:

[1]       Ms P   has pleaded guilty at the very earliest time to a charge of careless driving causing injury to two people.   It wsd a classic case of its kind.  Ms P   was obliged to give way at an intersection.  She allowed other traffic to clear and then pulled out having failed to see a motorcycle coming toward  her.    The  circumstances  demonstrate  the  very  good  reasons  for which, since this accident, it has become mandatory for motorcycles to have their lights on at all times.   There can be no doubt that motorcycles are difficult to see when they are unlit but quite conspicuously visible when they are lit.  these are matters, if not mitigation, at least matters which make what happened understandable.

[2]       Ms P   is obviously regretful of what has happened and as I say, the clearest indication of that is her early guilty plea.  she has also done the right thing so far as the victims are concerned.

[3]       There is a question of reparation but Ms P   is comprehensively insured  and  so  while  the  complainants  have  suffered  not  inconsiderable losses they can look forward confidently to those being reimbursed.

[4]       Having regard to all the circumstances of the case and the minimal culpability here I reduce the normal disqualification period to one of two months and Ms P   is convicted and disqualified from driving for a period of two months accordingly.  The matter of reparation, which may have to be dealt with later, is no deferred and may be brought on on seven days written notice but that to be no later than 1 April this year.

[6]      It is well established that on a Solicitor-General’s appeal a sentence should not be increased unless, on a review of the facts and circumstances of the case, it is clear the sentence imposed was manifestly inadequate or the Crown is able to point to some error in principle upon which the sentencing Judge acted.  In this case the Crown relies on both grounds.

[7]      Under the Land Transport Act 1998 the offence of careless driving causing injury carries with it a mandatory period of disqualification of six months unless, for

special  reasons  relating  to  the  offence,  the  Court  thinks  fit  to  make  an  order otherwise.  That is the result of the combined effect of ss 38 and 81.

[8]      The  Crown  submits  that  in  imposing  only  two  months  instead  of  the mandatory six months, the Judge failed to identify any special reasons.  The Crown further submits that in any event, on the facts of the case no special reason existed.

[9]      For his part, counsel for the respondent, Mr Krebs, concedes that special reasons as discussed in authorities such as Newbury v Police HC Christchurch A74/00, 1 June 2000; Rickerby v Police HC Auckland AP263/95, 8 December 1995; and Templeton v Police HC Christchurch CRI-2007-409-000205, 2 November 2007 were not present in this case.  The concession is a responsible one and wisely made.

[10]     It   would   appear   the   sentencing   Judge   may   have   been   under   the misapprehension that the motorbike headlight was off.  In fact, the evidence would suggest to the contrary and it was never contended otherwise.

[11]     In so far as the strong mitigating factors relating to the offender personally may have influenced the Judge, those were clearly not capable in law of constituting special reasons going, as they do, to the offender rather than the offence.   If the Judge did take them into account then clearly he should not have done so.

[12]     I am satisfied that there was no basis in law for departing from the mandatory period of disqualification.

[13]     The appeal is accordingly allowed.  The two-month disqualification period is quashed and substituted with a period of disqualification of six months.

Solicitors:

Crown Solicitor’s Office, Napier

J Krebs, Napier