Pollock v The Queen - [2014] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-29 [2014] NZHC 1994

UNDER
Part 6, Subparts 4 and 7 of the Criminal

Procedure Act 2011

BETWEEN

ROSS DAVID POLLOCK Appellant

AND

THE QUEEN Respondent

Hearing: 20 August 2014

Counsel:

A N Isac for Appellant
C R Walker for Respondent

Judgment:

21 August 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 21 August 2014 at 4.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Fitzherbert Rowe, Palmerston North for Appellant
Crown Solicitor’s Office, Napier for Respondent

POLLOCK v R [2014] NZHC 1994 [21 August 2014]

Introduction

[1] On 8 October 2013 a four year old boy was killed by a mowing tractor operated by the appellant at a park in Hastings. The appellant pleaded guilty to one charge of dangerous driving causing death and was sentenced in the District Court to six months home detention, 100 hours of community work, and disqualified from driving for three years. He now appeals against the period of disqualification on the ground that the least restrictive outcome required in the circumstances was the
mandatory period of 12 months’ disqualification.1

Background and sentencing decision

[2] The relevant circumstances of the offending are outlined in the District Court judgment.2 The appellant had been operating the tractor and mower for about
11 minutes and had mown six lengths of the park before three children came over to the tractor and began chasing it. The children were aged ten, eight and four years. The eldest was riding a bicycle.

[3] The appellant stopped his tractor and told the children to go away. He tooted his horn, waved and attempted to shoo them off. The children, however, continued to follow the tractor.

[4] The four year old appears to have tired and sat down on an area of grass already mown. The other two children continued to follow the tractor at a distance of approximately 15 – 20 metres.

[5] On his ninth length, the appellant passed the four year old who was sitting to his left. The ten year old was riding to the right and ahead of the tractor but in the same direction. The eight year old continued to run behind the tractor.

[6] On the next length, the tractor approached the area where the four year old was sitting. The child stood up and ran at an angle towards the tractor. Counsel for

1 Sentencing Act 2002, s 8(g) provides that in sentencing an offender the Court must impose the least restrictive outcome that is appropriate in the circumstances.
2 R v Pollock DC Napier CRI-2014-020-0126, 11 July 2014 at [3] – [8].

the appellant said at sentencing that he had believed the child was intending to run behind the tractor towards a basketball area.

[7] One witness estimated that the tractor was 35 – 40 metres away from the child when he started running. Another witness said the child appeared to side-step towards the mower…

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 Pollock v The Queen

Details

AGLC: Pollock v The Queen [2014] NZHC 1994
Case: [2014] NZHC 1994
Decision Date: 21 August 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ross David Pollock against the period of disqualification imposed by the District Court, which was three years. Pollock had been operating a mowing tractor that struck and killed a four-year-old boy in a park. He pleaded guilty to dangerous driving causing death and was sentenced to six months home detention, 100 hours of community work, and disqualified from driving for three years. Pollock appealed on the ground that the least restrictive outcome required in the circumstances was a mandatory period of 12 months' disqualification.

The legal issues in the appeal were whether the District Court had imposed an appropriate period of disqualification and, if not, what the appropriate period should be. The court considered the general principles and comparable cases of dangerous driving causing death, noting that periods of disqualification of three years or more are usually imposed for offending where one or more significant aggravating features are present. The court also considered the mitigating factors, such as the absence of previous convictions, a timely plea of guilty, and genuine shock or remorse. The court concluded that although the appellant's offending involved a serious lapse of judgement, it did not involve the usual circumstance of dangerously driving in a car on a road and did not have the same requirement for both general and specific deterrence as most cases of dangerous driving. The court was satisfied that the appropriate period of disqualification was one of 18 months.

The appeal was allowed in relation to the period of disqualification imposed. The period of three years' disqualification was quashed, and a period of 18 months' disqualification was imposed in lieu.

Orders