R v Police HC Christchurch CRI 2008-409-282

[2008] NZHC 1915

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000282

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 December 2008

Counsel:         C D Eason for Appellant

C Boshier for Respondent

Judgment:      4 December 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      Mr R   pleaded guilty to an offence of careless use causing injury.  He was sentenced to a fine of $750, ordered to pay additional reparation of $1,000 and disqualified for six months, being the mandatory minimum term.   In essence the present appeal is against the period of disqualification.  For reasons which I explain shortly that order has profound consequences for Mr R  .

[2]      On account, however, of the statutory scheme of the Land Transport Act

1998 and the Sentencing Act 2002 Mr R  ’s only option is to seek a discharge without conviction pursuant to s106 of the Sentencing Act.  Some further context is

required.

R V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000282  4 December 2008

[3]      On 25 July last at about 9.25 am Mr R   was driving north on Montreal Street in Christchurch.  This is a one-way street.  He was about to complete some paperwork before finishing work.  He wished to turn right into a smaller two lane street called Walker Street.  In doing so he cut the corner and hit a cyclist.  She was preparing to turn right into Montreal Street.   With that in mind she had pulled towards the centre line but was still on  her  correct  side of  the  road.    Because Mr R   had cut the corner he, too, was a little to the incorrect side of Walker Street and an impact occurred.  The victim was thrown onto his bonnet and then onto the roadway.   Her injuries comprised a laceration to the knee which required suturing and  a  hairline  fracture  to  the  pelvis.    Her  bike  was  written  off.    A  nurse  by occupation, she was unable to work for a time and sustained a loss of income, the difference between her normal wage and her ACC entitlement.

[4]      The case was heard in a list Court by Judge Bisphan.  In anticipation of the hearing Mr Eason, on behalf of the appellant, had filed an affidavit which, in particular, endeavoured to capture the consequences, direct and indirect, of a conviction and more particularly of an order for disqualification.   I shall come to these in a moment.

[5]      As counsel has acknowledged in the course of the hearing the Judge was confronted with that affidavit on the run and had to consider it in a list Court context. I have had the luxury of considering the material in advance of the hearing and also, as it happens, I have the benefit of additional information.  That is so because it is now 52 days since the matter was dealt with in the District Court and, what were anticipated consequences at that time, are now real ones.

[6]      Confronted as he was with an application pursuant to s106 the Judge first of all assessed the gravity of the offence:

[5]     Just looking at the offence here.  It was not a minor offence because there appeared to be two failings by the defendant.  The first was driving on the incorrect side of his road and the second, obviously, was failing to keep a proper lookout and he drove into the cyclist who received 10 stitches to her left knee and a hairline fracture to her pelvis.

[6]     Upon reading the victim impact report it has had rather a significant effect on her as one could well imagine, where one minute one is going about one’s business in the usual way and the next minute, and thereafter,

one has to put up with the problems caused by this accident which often takes some time to mend.  So it is not an insignificant matter.

[7]      With reference to the consequences of a conviction, the Judge said this:

[7]     The consequences that the defendant puts forward do not relate, as they often do, to the stigma attached to the conviction but really arise from the mandatory disqualification which usually follows for a conviction of this nature.

And then at para [9]:

The defendant is a taxi driver and disqualification will impact on him significantly, but it is a mandatory disqualification.  On reading his affidavit I would have thought there is a pretty strong likelihood that he would get a limited licence.   He has got no previous convictions and he also has the facility of employing a driver, I presume, if he is carrying on with the business, it might mean that he does not make a lot of money out of it but they are financial circumstances only.

[8]      In light of these assessments of gravity and of the likely consequences, the Judge concluded that the case fell short of one which allowed him to deal with it under  s106.    Accordingly  he  entered  a  conviction  and  imposed  the  sentencing package to which I have already referred.  Indeed, he commented that that package achieved an outcome which he thought was “about right”, rather than entirely disproportionate given the nature of the offence.

[9]      Mr R   is aged 47.   He has driven for about 30 years.   This is his first conviction.   About eight years ago he was involved in a serious accident while involved in a motor sport.  He sustained multiple injuries including a head injury. This in turn led to serious consequences, both in relation to his employment and, as it happened, his marriage.  He had to find a new form of livelihood after an extended time in receipt of accident compensation and a depressive illness which led to his hospitalisation.   He eventually re-established himself by obtaining a taxi driver’s licence.  This was in 2005.  The affidavit he filed in the District Court described that business as not fully developed, but displaying promising signs and his income situation was said to be that he was achieving little more than a break-even situation.

[10]     Over the past 52 days since the conviction was entered in the District Court

Mr R   has had no income.  He has been unable to employ a driver to conduct the

business.    Apparently drivers  are  in  short  supply  and  in  any  event  require  the necessary certification unless they are already established in the industry.  Absent an employed driver Mr R   has had no choice but to abandon the business in the meantime.   He is concerned about this because his client base is, to a significant extent, repeat customers;   for example people from a centre for the disabled who have customarily used his services.  Absent an income he has been forced to resort to savings until now.

[11]     On what basis, then, is it said that the Judge wrongly exercised his discretion in declining an order pursuant to s106?  In reality Mr Eason has advanced one point. That is that the Judge misread the consequences of the conviction because of his supposition that there was a pretty strong likelihood of obtaining a limited licence or, in the alternative, of employing a driver.  The reality has been that neither option is available.

[12]     With reference to the former, as I observed to counsel in the course of the hearing, Mr R  ’s position is one where he effectively falls between the legislative cracks.   First of all a “special reasons” contention was not available to him with reference to the mandatory disqualification because such reasons must relate to the offence and not the offender: s61, Land Transport Act.  Contrary to what the Judge supposed, nor could he apply for a limited licence.  Section 104(3)(b) provides that a limited licence may not be granted to someone “in a passenger service, unless the accumulation of demerit points is the only reason for the suspension of that person’s driver licence.”

[13]     Nor could Mr R   avoid the consequences of disqualification by resort to s94 which enables a community-based sentence to be imposed in lieu of a disqualification in certain limited  circumstances.    That  avenue is  only available where an offender has previously been disqualified and of course Mr R   does not qualify on that score.

[14]     As can be seen the essential issue in this appeal is whether, in light of all that is now known, it is demonstrated that the Judge was wrong in reaching a conclusion that  the  direct  and  indirect  consequences  of  the  conviction  were  not  out  of  all

proportion to the gravity of the offence.  As to the latter, the gravity of the offence, I cannot differ from the Judge’s assessment.  The driving fault was two-fold in both cutting the corner and not keeping a sufficient look-out.  It was a fairly typical case of careless use causing injury.

[15]     The real issue, however, is whether the Judge misread the consequences of a conviction.  I am satisfied that he did.  It was not surprising that he supposed that a limited licence would be, in all probability, available to Mr R  .  Indeed it is the case that s104(3) was only amended in 2005 so as to bring in the prohibition in relation to persons offering a passenger service to others.

[16]     In  addition,  I have  the  further  information  now  available  concerning the consequences that have in fact  arisen when the appellant found that it was not possible to employ someone else to drive his taxi.  But it still remains to examine whether it can be said that the consequences, as now known, are out of all proportion to the gravity of the offence.  To my mind it is important to look at this particular case in context.  I have already referred to the contents of Mr R  ’s affidavit.  He has had an unfortunate history in recent years.   It is impressive that he has rehabilitated himself following a serious injury by establishing himself as an owner/driver of a taxi.   Thereby he has avoided the need to receive accident compensation.

[17]     I am of the view that not only has his livelihood been denied him for the last

50 odd days, but that his business is at risk as a result of the disqualification order and   the   circumstance   that   he   is   unable   to   ameliorate   the   impact   of   the disqualification order.   I see him as an offender in relation to whom a very fact- specific inquiry is required in order to assess the full effect of the consequences of the disqualification upon him.

[18]     And, I am persuaded that for this particular man the consequences are out of all proportion.  Most persons in Mr R  ’s situation would take the penalty on the chin because for them the loss of a licence would be a matter of inconvenience, not a matter which affected their livelihood and potentially their ability to support themselves into the future.   It is that dimension which distinguishes this case and

brings me to the view that given the legislative minefield to which I have referred, the appropriate course is to intervene and to make an order in terms of s106.

[19]     In doing so I bear in mind some other circumstances to which I have not already referred.  Prior to his appearance in the District Court Mr R   wrote to the complainant and paid her a sum of $1,000 by way of reparation.  The Judge ordered payment of a further sum of $1,000.  This figure I note is sufficient to meet the out- of-pocket  expenses  which  the  complainant  suffered  in  relation  to  income  and property damage.  Given the delay between the District Court hearing and now, Mr R   has been without a licence for a period of two months and, in addition, without income.  This offence, therefore, has taken a toll in any event.

[20]     For these reasons the appeal is allowed and an order is made discharging the appellant without conviction.

Solicitors:

Colin Eason Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent