Prowse v Police

[2019] NZHC 307

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000001

[2019] NZHC 307

BETWEEN

BART GORDON PROWSE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 February 2019

Appearances:

The Appellant in Person

B Vaili for the Respondent

Judgment:

27 February 2019

ORAL JUDGMENT OF HINTON J

Solicitors:

Almao Douch, Hamilton

Party:

B Prowse

PROWSE v POLICE [2019] NZHC 307 [27 February 2019]

Introduction

[1]                  Mr Prowse appeals his sentence following conviction for one charge of driving in a dangerous manner.1 He was sentenced in the Huntly District Court following a hearing before Judge Spear on 28 November 2018. (I say a little more about that subsequently.)

[2]                  Mr Prowse received a fine of $600, and six months’ disqualification from driving. The disqualification took effect on the date of sentence. It is the date the disqualification begins with which Mr Prowse takes issue.

[3]The notice of appeal specifies the following grounds:

(a)The Judge should have directed that Mr Prowse’s period of disqualification should commence before the date of conviction.

(b)His refusal to do so was unreasonable, and the resulting period of disqualification is excessive and/or inappropriate.

[4]                  The submissions focused more on an agreement allegedly reached with the prosecutor to downgrade the charge and back-date the disqualification.

[5]I do not have a copy of the Judge’s reasons.

Background

[6]                  The offending occurred on 24 February 2017. Mr Prowse was riding his motorcycle on SH1 near Taupiri. He had a passenger on the back. The highway was very busy in both directions. Mr Prowse passed a police officer, who recorded him going at 142 km per hour in a 100 km per hour zone.

1      Land Transport Act 1998, s 35(1)(b). Maximum penalty three months’ imprisonment, six months disqualification, or a fine not exceeding $4,500. The appellant was also originally charged with a second charge of driving with blood containing a controlled drug, but he was subsequently discharged on that charge and it is not material to this appeal.

[7]                  Mr Prowse continued to travel down SH1 to Huntly. He eventually collided with a car in Huntly which turned suddenly into his lane. Both Mr Prowse and his passenger sustained severe injuries.

[8]                  The respondent gives the following account of the procedural history after the accident:

(a)The appellant was scheduled to appear in the Huntly District Court on 17 July 2017. He did not appear. The matter was adjourned for the appellant to be re-summonsed and for proof of service.

(b)On 12 September 2017, the appellant was remanded on bail without plea for an application for legal aid to be processed.

(c)On 26 October 2017, the appellant failed to appear.

(d)On 27 October 2017, the appellant appeared, entered a not guilty plea and was remanded to 16 January 2018.

(e)On 16 January 2018, the appellant failed to appear.

(f)On 26 January 2018, the appellant made a voluntary appearance in the Huntly District Court.

(g)On 3 May 2018, the appellant maintained his not guilty plea and was remanded to appear for a Judge-alone trial.

(h)On 8 August 2018, the appellant failed to appear and a warrant to arrest was issued at 10.00 am. At 11.30 am the appellant appeared, the warrant was cancelled and a nominal date was set for a Judge-alone trial and for Legal Aid approval.

(i)On 14 August 2018, a Judge-alone trial date was set for 28 November 2018.

(j)Following what seems to have been a part-hearing on 28 November 2018, the appellant was discharged on a charge of driving with blood containing a controlled drug, and pleaded guilty to the charge of driving in a dangerous manner. The appellant was convicted and sentenced to a fine of $600 and disqualification for a period of six months, commencing 28 November 2018.

Approach on appeal

[9]                  Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.2

[10]              In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.4

[11]              The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.5 The focus is on the end result, rather than the process by which the sentence was reached.6

Was there an agreement to back-date?

[12]              Mr Prowse did not himself file submissions on this appeal. I do, however, have an email from Ms Sheree Todd,  which I have read, although she is not a lawyer.    Mr Prowse gave oral submissions.

[13]              Mr Prowse says he was offered a deal by the prosecutor when he pleaded guilty. Ms Todd writes, and Mr Prowse says, that the prosecutor offered to alter the charge to “careless use of a motor vehicle by travelling over 100 kms”, which would have

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

4      Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].

5      Tutakangahau v R, at [36].

6 At [36].

resulted in six months’ disqualification of licence to be back-dated to the date of accident, being 24 February 2017, and “this would be the end of it”.

[14]              Mr Prowse asserts he pleaded guilty on this basis, but the Judge then sentenced him on the basis of the original summary of facts and gave the above sentence.

[15]              He says he was dismayed by this outcome; this is not what he had agreed to, and he requires his licence to attend medical appointments for his injuries resulting from the accident.

[16]              Ms Todd, in her email, then seems to question how it could possibly be proved that it was Mr Prowse who committed the offending, and suggests the charge results from the particular police officer’s personal animosity towards Mr Prowse. I note the summary of facts states that Mr Prowse, at least at one point, admitted to the offending.

[17]              There may be something in Mr Prowse’s version of events, but not to the effect or extent he contends. The charge was not amended and if that had been agreed, it would have happened, especially given Mr Prowse was represented. The charge to which he pleaded remained the same as it was.

[18]              Secondly, I would have required evidence from Mr Thwaite, Mr Prowse’s lawyer, of any “deal” done with the prosecutor. Not only is there no such evidence, but Mr Prowse’s lawyer has filed the notice of appeal. It does not refer to any agreement with the prosecutor, whether to reduce the charge, or back-date. To the contrary, it says only that the Judge’s refusal to back-date was unreasonable. What actually happened seems far more likely to have been, consistent with the notice of appeal and the prosecutor’s notes dated 28 November 2018, that Mr Thwaite asked the prosecutor if he would object to a request for a retrospective disqualification date. The  prosecutor  said  he  “would  have  no  objection”.  But  the  Judge  declined   Mr Thwaite’s request and said disqualification was to start at the date of sentence.

[19]              That is in fact as far as a prosecutor can go. Even if the prosecutor had gone further than to say they would not object, and had agreed with the defence lawyer that they would ask for a retrospective disqualification date, which would be a very rare

thing for a prosecutor to do, the fact of the matter is, and Mr Thwaite would have known this perfectly well, that a prosecutor cannot bind the Judge. The sentencing is the Judge’s decision and the Judge alone. The Judge was not prepared to back-date the disqualification.

[20]I therefore do not accept Mr Prowse’s argument in this regard.

[21]I turn to consider whether, absent any agreement, there is any basis for appeal.

Was the Judge otherwise wrong in not back-dating?

[22]              The respondent submits that the beginning of the disqualification is the time of sentence, by default, unless the sentencing Judge exercises their discretion to order that the disqualification begin at a different time.

[23]They say the Judge chose not to exercise that discretion.

[24]              The respondent says also there is no basis for exercising the discretion to move the start date, so the appeal should be dismissed.

[25]              Under s 85(1) of the Land Transport Act 1998, an order made by a Court disqualifying a person from driving takes effect on the day the order is made, unless the Court directs otherwise.7

[26]              The Court may direct that the period of disqualification be back-dated or commence on a future date.8

[27]              The obvious example of where a Court may direct that a period of disqualification be back-dated is where a person was on bail prior to the sentencing and a condition of the bail was that they not drive. Assuming they complied with that condition, the Court might reasonably back-date the disqualification to some extent, so as not to inadvertently punish someone for longer than was required.

7      Land Transport Act 1998, s 85(1).

8      Edwards v Police [2012] NZHC 1350 at [26].

[28]              A Court may specify the disqualification takes place sometime in the future because of compassionate reasons, or because the person is serving a sentence of imprisonment.

[29]              In Oldfield v Police, the appellant appealed a decision imposing a fine, together with the applicable minimum period of disqualification of 12 months.9

[30]              Although the issue of back-dating the disqualification had not been raised in the District Court, the period of disqualification was back-dated by four months, to take account of the appellant having been subject to bail conditions restricting his driving already for something like 14 months, and also to take account of delays in the District Court.

[31]              This case is clearly not like Oldfield. The appellant here was not subject to restrictive bail conditions preventing him from driving for a very lengthy period. Also, any delay was due to the appellant’s failing to appear.

[32]              The disqualification of six months was very light, in any event. That is the minimum period of disqualification for that offence.

[33]              I do not consider there was any good basis here for back-dating the disqualification.

Conclusion

[34]For these reasons, I dismiss the appeal.

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Hinton J

9      Oldfield v Police [2013] NZHC 216.