Police v Smith - [2012] NZHC 2346

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000032 [2012] NZHC 2346

NEW ZEALAND POLICE
Appellant

v

MATTHEW ISAAC SMITH
Respondent

Hearing: 26 June 2012
Further submissions filed 20 and 27 July 2012

Counsel: KC Francis for Appellant
RD Mulgan and AL Simpson for Respondent

Judgment: 12 September 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Wednesday, 12 September 2012 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, DX CP24063, Auckland 1140. Email: kim.francis@meredithconnell.co.nz
RD Mulgan, 51 Pembroke Crescent, Glendowie, Auckland 1071. Email: mulgan@xtra.co.nz
AL Simpson, 1/11 Freeman Way, Manukau 2104. Email: thesimpsons@paradise.net.nz

POLICE V SMITH HC AK CRI-2012-404-000032 [12 September 2012]

Introduction

[1] The appellant, the New Zealand Police, appeals against a sentence of 80 hours’ community work imposed on a charge of driving while the driver’s licence was suspended, rather than the mandatory disqualification period of six months or more. The appellant says that there was no jurisdiction to impose that sentence, and that the Court was obligated to impose the sentence of disqualification.

[2] The facts relating to the conviction were entirely unremarkable. The respondent, Matthew Smith, had had his driver’s licence suspended on 16 September
2011 for a period of 28 days for driving over 40 kilometres per hour over the speed

limit, pursuant to s 95(1)(c) of the Land Transport Act 1998 (“the Act”). On

24 September 2011, within the period of disqualification, the respondent had been stopped at a Police checkpoint and identified as a driver of a vehicle in breach of the suspension order. On 23 January 2012 Mr Smith pleaded guilty and appeared for sentence on the one charge of driving a motor vehicle while his licence was suspended, contrary to s 32(1)(c) of the Act.

[3] Before the sentencing Judge, Judge Tremewan, the Police had accepted that the Court had jurisdiction to impose a sentence of community work. Both Police and counsel for the defendant had considered the Judge to be bound by a High Court decision Pannu v Police1 where the Court had found that s 94(2) of the Act, which provided an alternative to disqualification in certain circumstances, applied to a suspended driver. Judge Tremewan was recorded in her discussion with counsel as
commenting that that result involved a “bizarre situation” and in her decision observed that that result was “strange”. She understandably felt bound in the context of the High Court decision to consider as a potential sentence a term of community work, and in all the circumstances was of the view that, it being an option, community work was the appropriate sentence.

[4] There is no challenge by the appellant to the Judge’s conclusion that if
community work was an available option, it was an appropriate sentence. The challenge is, rather, to her jurisdiction to invoke the s 94(2) discretion.

1 Pannu v Police HC Auckland CRI-2009-404-84, 2 June 2009.

The statutory framework

[5] Section 32(1)(c) and (3)(a) and (b) provide:

32 Contravention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Smith

Details

AGLC: Police v Smith [2012] NZHC 2346
Case: [2012] NZHC 2346
Decision Date: 12 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the New Zealand Police, as appellant, contested the sentence imposed by Judge Tremewan on Matthew Smith, the respondent, who had been found guilty of driving while his driver's licence was suspended. The Police argued that the Court lacked jurisdiction to impose a sentence of 80 hours of community work instead of the mandatory six-month disqualification period. The Police contended that the Court was obligated to impose the sentence of disqualification as per section 32(3)(b) of the Land Transport Act 1998. The Court needed to determine whether section 94(2) of the Act applied to a suspended driver, allowing the imposition of community work instead of disqualification.

The Court examined the statutory framework of the Act, particularly section 32(1)(c) and (3)(a) and (b) which mandates disqualification for driving while the driver's licence is suspended or revoked. Section 94(1) and (2) allows the court to substitute a community-based sentence if the offender has previously been ordered to be disqualified from holding or obtaining a driver licence and if it is inappropriate to order further disqualification. The Court noted that section 94 applies only if the offender has been previously disqualified, not merely suspended. The Court also considered the purpose of section 94, which was to provide an alternative to repeat periods of disqualification where the usefulness of such penalties was doubtful.

The Court concluded that section 94(2) could not be applied to a suspended driver like Mr Smith, who had not been previously convicted and disqualified from driving. The Court adopted the conclusion of Baragwanath J in Police v Raynes, finding that the anomaly identified by the sentencing Judge was not sufficient to warrant distortion of Parliament's language. The Court declined to follow Pannu v Police, where the High Court had found that section 94 applied to a suspended driver.

The Court noted that Mr Smith had already served the sentence of community work, and imposing a period of disqualification would result in double punishment. The Court exercised its discretion under R v Donaldson to decline to interfere with the sentence when that would cause injustice to the offender, even if the sentence imposed was wrong in principle. The Court dismissed the appeal, considering it unjust to impose a considerably greater penalty than intended. The Court left the matter of costs to be determined by the parties, should they wish to make submissions within 14 days.

Orders