Prue v Police
[2015] NZHC 1606
•9 July 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000049 [2015] NZHC 1606
BETWEEN KEVIN JAMES PRUE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 July 2015 Appearances:
L Drummond for Appellant
C Butchard for RespondentJudgment:
9 July 2015
ORAL JUDGMENT OF GENDALL J
What this appeal is about
[1] Mr Kevin Prue was charged with dangerous driving in contravention of s 35(1)(b) of the Land Transport Act 1998. He came before Judge Couch in the District Court on 20 April 2015 for sentence.1 He was convicted on the charge and sentenced to disqualification from driving for a period of six months (the statutory minimum) together with reparation of $464 and court costs of $130.
[2] This appeal focuses solely on whether Judge Couch erred in declining to dispense with the statutory minimum disqualification period under s 81 of the Land Transport Act 1998. Section 81 states that where a provision of the Land Transport Act stipulates a minimum period of disqualification, “the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise”. The special circumstances claimed here emerge
clearly from the facts, to which I now turn.
1 New Zealand Police v Prue [2015] NZDC 8985.
PRUE v NEW ZEALAND POLICE [2015] NZHC 1606 [9 July 2015]
Facts
[3] On Sunday 28 September 2014, Mr Prue was driving his motor vehicle on Athelstan Street, Spreydon. After driving for only a short period of time, a male cyclist came up to Mr Prue’s vehicle and told him that his vehicle had a flat tyre at the rear left-hand side. In order to tell Mr Prue this, the man opened the front passenger door, at which time he grabbed Mr Prue’s bag off the seat whilst saying “I’ll have that too”. The man then fled on his bicycle.
[4] Mr Prue is 70 years old. He had a stroke several years ago which left him with a limp. He was therefore unable to pursue the man on foot. He made a decision however to pursue the thief in his vehicle. In the course of this pursuit, Mr Prue has driven over a curb, onto a footpath (narrowly missing a pedestrian) and then attempted to swerve back onto the road, hitting a bus stop sign in the process.
In an affidavit filed in support of his s 81 application, Mr Prue stated:
8. [The man] … took off across the road on a bike, and I knew I could not run after him. I thought if I followed him I might be able to head him off going down the footpath. I never had any intention of running him over, I wanted to keep up with him. 9.
My bag had all my important personal belongings in it like my glasses, my wallet with my credit cards and my mobile phone.
[5]
Mr
Prue says further that this event left him stressed and flustered.
Additionally, because the man had stolen his phone, he was unable to contact the Police. Mr Prue suggests his sole goal was to regain possession of his belongings. He also expresses a willingness to personally pay for any damage caused. As to his s 81 application, Mr Prue deposes:
20. I had to replace my drivers’ license, my glasses and all of my credit
cards which took considerable time and expense to me.
21.I believe that these are special circumstances that the Court should consider and that I should not be disqualified from driving.
22. I am 70 years old and drive a truck on a casual basis …
23. I am very sorry for what happened, and I know that in hindsight I
should not have driven after him.
District Court sentencing
[6] Turning now to the District Court sentencing, Judge Couch was wholly seized of the s 81 application in sentencing Mr Prue. His notes are brief and I replicate them in full for ease of reference:
[1] This is a very unusual situation. I am convinced that there were special circumstances in a broad sense. It is not every day that somebody tricks you into a position where they can steal all your personal documents but it is very hard to see how these special circumstances can apply to dangerous driving. It is not as though Mr Prue was being chased.
[2] The essence of s 81 is that the circumstances must go to the essential nature of the offence. Now it is hard to see how the circumstances here, however unusual, justify dangerous driving. As I say, had it been the other way round, had Mr Prue been pursued by people trying to ram him or something similar, it might have justified dangerous driving. But he was the one doing the pursuing.
[3] In essence, Mr Prue, what I find is that you not only could, but you should have pursued this man by driving in a safe way and that, to the extent you went beyond that, it was not justified by the situation.
[4] Mr Prue, on this charge you have already been convicted. You will be fined $400 and ordered to pay Court costs of $130. You will be disqualified from holding and obtaining a driver licence for six months from today. You will also be ordered to pay reparation of $464 if it has not already been paid.
Approach to this appeal
[7] Turning now to the approach to be taken on this appeal, Mr Prue is able to appeal the sentence imposed as of right.2 This Court, as first appeal Court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.3 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act
2011 remains the same as that under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).4
[8] As with many judicial decisions, however, the approach under s 81 is an amalgam of objective judicial assessment and judicial discretion. Thus, in Vaevae v
2 Criminal Procedure Act 2011, s 244.
3 Sections 247 and 250.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
New Zealand Police, Potter J held that the appellate approach to s 81 is two- pronged:5
(a) any challenge to the determination of whether there exist special reasons proceeds on the basis of a general appeal (re-assessment on the merits) in accordance with Austin, Nichols & Co Inc v Stichting Lodestar;6
(b)where a court finds that special reasons exist, but does not consider them sufficient to displace the minimum disqualification period, then the appeal is purporting to attack a discretionary decision of a first instance Judge. The appellant must therefore establish that the decision was contrary to principle, the Judge took account of irrelevant matters, failed to take account of relevant matters or was
plainly wrong.7
[9] In the present case, Judge Couch accepted the circumstances here were unique and he noted he was “convinced that there were special circumstances in a broad sense”. Nonetheless, he considered there was a disconnect between those special circumstances and the dangerous driving. Thus, His Honour’s refusal to grant the s 81 application was an objective assessment that on the facts, there were no special circumstances justifying departure from the statutory minimum disqualification. This means that this appeal proceeds by way of re-hearing to the extent of ascertaining whether there were special circumstances on the unique facts of this case. If this is answered in the affirmative, I must move to consider how the discretion ought to be exercised.
[10] Before me, the parties seemed to approach this case on the basis that Judge Couch had progressed to the point of exercising his discretion. To this extent I disagree. I consider that Judge Couch’s finding that there were, in a broad sense,
special circumstances, was not a finding that there were, on the facts, special reasons
5 Vaevae v New Zealand Police HC Auckland CRI-2009-404-219, 31 August 2009.
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7 B v Police (No 2) [2000] 1 NZLR 31 (CA) at [6]; Dodd v R [2011] NZCA 490 at [27]; Kacem v
Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; Wong v R [2009] NZSC 64; R v Fatu (2005)
22 CRNZ 524 (CA) at [5]; May v May (1982) 1 NZFLR 165 (CA).
or circumstances relating to the offence in a legal sense. It does not seem to me that
Judge Couch ever progressed to the point of a discretionary assessment.
Resolution
[11] Section 81 of the Land Transport Act provides:
81 Provisions relating to mandatory disqualification
(1) If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
[12] The determination of applications under s 81 of the Land Transport Act proceeds in accordance with the three-step assessment set out in Lower Hutt City v McAlpine: Sammons: Brockman-Palmer:8
(a) whether in law the particular circumstances are capable of constituting special reasons;
(b) whether special reasons exist on the facts; and
(c) whether the Court should exercise its discretion in whole or in part. [13] I have been referred to various authorities both by the Crown and by counsel
for Mr Prue.9 In my view, cases such as this are, by their very nature, unique. While
comparisons with other cases undoubtedly provide assistance, each case falls to be considered and determined on its own circumstances.
[14] For clarity, I need to say at the outset that I agree with Judge Couch that, in a broad sense, special reasons did exist here. I take this to mean that, in principle, the
8 Lower Hutt City v McAlpine: Sammons: Brockman-Palmer [1972] NZLR 168 (SC).
9 Hamilton v Police HC Auckland CRI-2010-404-233, 18 October 2010 (cultural pressure to drive whilst intoxicated – special reasons existed); Anderson v Transport Department [1964] NZLR
881 (SC) (towing a repossessed car backwards down a highway, with the person in the towed vehicle facing backwards – special reasons existed); Edmonds v Police [1970] NZLR 267 (SC) (towing a youth behind a car on a tyre – special reasons existed); Sanders v Police HC Auckland AP201/94, 9 November 1994 (dangerous driving by running red lights slowly where driver thought he was being pursued by thugs in a van –special reasons existed).
pursuit of items stolen from a person in some manner is potentially capable of amounting to a special reason in law.10 However, on the specific facts of this case I do not consider there are special reasons here such that the statutory minimum disqualification period should be departed from.
[15] If Mr Prue was, for example, speeding slightly above the limit, or running red lights at low-speed, to maintain contact with the perpetrator of the theft, that might be sufficient to establish special reasons for departure. Here, however, Mr Prue’s driving went well beyond what was necessary to effect his pursuit. His driving was so erratic that not only did he first, drive onto a footpath, and secondly, cause substantial damage to a road sign, but he also put in danger an innocent bystander in the course of his manoeuvres. His driving was neither confined to putting his own safety at risk, nor was it objectively reasonable.
[16] Thus, while I consider the broad genus of pursuing the perpetrator of a crime potentially capable of amounting to “special reasons” for departure from the minimum disqualification, that does not amount to special circumstances on the facts of this case. Because of this conclusion I do not need to consider how I would have exercised my discretion.
Outcome
[17] For all the reasons outlined above I find that Judge Couch did not err here. The appeal is dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Linda Drummond, Christchurch
10 As to what constitutes a special reason see R v Crossan [1939] NI 106 (KB) at 112.
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