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…

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 Prowse v Police

Details

AGLC: Prowse v Police [2019] NZHC 307
Case: [2019] NZHC 307
Decision Date: 27 February 2019

CaseChat Overview and Summary

The case of Prowse v Police involves an appeal by Mr Prowse against his sentence for driving in a dangerous manner, which was imposed by the Huntly District Court. Mr Prowse argues that the judge should have directed his driving disqualification period to commence before the date of conviction, and that the refusal to do so was unreasonable, resulting in an excessive or inappropriate disqualification period. The appeal focuses on the alleged agreement to backdate the disqualification period.

The primary legal issue in this case is whether the High Court should grant the appeal on the ground that the District Court judge should have directed the disqualification period to commence before the date of conviction, and whether the refusal to do so was unreasonable. The appeal also addresses whether there was any basis for backdating the disqualification period in the absence of an agreement.

The High Court found that there was no evidence of an agreement to backdate the disqualification period. The Court noted that even if there had been such an agreement, it would not have bound the judge. Sentencing is the judge's decision and the judge alone. The Court also concluded that there was no basis for backdating the disqualification period, as the appellant was not subject to restrictive bail conditions preventing him from driving for a lengthy period, and any delay was due to the appellant's failure to appear. The disqualification of six months was the minimum period for that offence.

The Court dismissed the appeal, stating that the District Court judge did not err in not backdating the disqualification period. The Court held that the appeal should not be allowed unless it was shown that the sentence was manifestly excessive or wrong in principle, which was not the case here. The Court also noted that the focus is on the end result, rather than the process by which the sentence was reached.

This case serves as a reminder that the sentencing judge has the discretion to decide the start date of a driving disqualification period, and that agreements with prosecutors do not bind the judge. Furthermore, the court may only intervene in the sentence if it is manifestly excessive or wrong in principle.

Orders