Ryan v Police HC Wellington CRI-2011-485-63
[2011] NZHC 959
•31 August 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2011-485-63
PETER GRAEME RYAN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 30 August 2011
Counsel: S J Iorns for appellant
M J Ferrier for respondent
Judgment: 31 August 2011
RESERVED JUDGMENT OF DOBSON J
[1] On 4 March 2011, the appellant (Mr Ryan) represented himself in defending one charge of dangerous driving, in the Upper Hutt District Court. At the conclusion of the defended hearing, he was convicted and sentenced to a six month disqualification of his licence, effective immediately.
[2] Mr Ryan had apparently driven to the Upper Hutt Court from Karori in Wellington that day. After the disqualification was imposed, he left the Upper Hutt Court and was observed driving his vehicle in defiance of that disqualification. He was apprehended, and charged with driving whilst disqualified. Mr Ryan pleaded guilty to driving whilst disqualified, but made application under s 81 of the Land
Transport Act 1998 (the Act) for the Court not to impose what is otherwise the
RYAN v NEW ZEALAND POLICE HC WN CRI-2011-485-63 31 August 2011
mandatory sentence of disqualification for six months or more, under s 32(3) of the
Act.
[3] On 8 June 2011, her Honour Judge Wainwright sentenced Mr Ryan on the conviction for driving whilst disqualified. Her Honour was not prepared to deal with the matter under s 81, and ordered that Mr Ryan be disqualified from holding or obtaining a driver’s licence for six months from 4 September 2011, the date on which the original period of disqualification was to have expired.
[4] Mr Ryan has now appealed against that sentence. It is not apparent from the sentencing Judge’s short notes on dealing with the matter, whether she approached the considerations that apply under s 81 in accordance with the steps recognised as appropriate.
[5] Section 81(1) 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.
[6] In determining an application under this section, the Court is to consider:1
(a) whether in law, particular circumstances are capable of constituting special reasons;
(b) if so, whether, on the facts, they are to be so regarded; and
(c) whether the Court should exercise its discretion to dispense with the minimum disqualification in whole or in part.
1 Lower Hutt City v McAlpine [1972] NZLR 168 at 170, Ministry of Transport v Green (1985)
1 CRNZ 492 at 495.
[7] In light of the brevity of the reasons given on sentencing, I accept the suggestion agreed to by both counsel that the prudent course is to consider the possible application of s 81 afresh. In doing so, it is necessary to assess, first, whether, as a matter of law, any “special reasons” claimed by the appellant qualify as such for the purposes of s 81 of the Act.
[8] Here, Mr Iorns raises two matters that he contends constitute such special reasons. First, that Mr Ryan was only intending to move his car a short distance. Secondly, that he had appeared for himself when the original disqualification order was imposed and did not know that he could have applied to have the commencement of the period of disqualification deferred for a day to enable him to return the car he had been driving to Wellington.
[9] As to the first of these, driving only a short distance has been recognised as amounting to a special reason for the purposes of s 81 of the Act. In East v Ministry of Transport, Hardie Boys J observed:2
It seems to me that a special reason must be one that goes to the essential purpose of the statutory provision in question. In the case of an alcohol- related offence that purpose is the prevention of danger to the public. … The offence of driving whilst disqualified has as one of its prime purposes insistence upon obedience to orders of the Court. Thus the degree of defiance involved in the driving will be a most relevant factor in any consideration of special reasons relating to that offence, in the same way that the degree of danger to the public is most relevant to an alcohol related driving charge.
[10] Conceptually, the extent of the driving conduct in breach of a disqualification order can constitute an indication of the extent of defiance of the Court’s previous order. It may constitute a special reason where the extent of driving, and therefore of defiance of the order, is at the de minimus, or very modest, end of a continuum going up to an extent or circumstances of driving that demonstrates flagrant defiance of the Court’s previous disqualification order.
[11] The second ground raised as a potential special reason is that because Mr Ryan was not represented when the original disqualification order was made, he was unaware of the prospect of applying to have the commencement of the
disqualification deferred. So, in effect, he evaluated the options available to him in ignorance of one that could have avoided the further offending of driving whilst disqualified.
[12] Ignorance of the law has previously been recognised as potentially constituting a special reason.3 Mr Iorns did not classify Mr Ryan’s limited understanding in that way, and submitted rather that it was an ignorance of the practice of the District Court.
[13] A self-represented defendant in a traffic prosecution being unaware of the prospect of seeking a deferral of the commencement of a period of disqualification is hardly a classic example of ignorance of the law, but the Court’s power to defer derives from the statute, and is literally a point of law. However, it does not arise in relation to the circumstances of the offending. I do not consider it is a matter of ignorance of the law that ought to qualify as a special reason. Mr Iorns argued that the circumstances in which Mr Ryan had defended himself, was in a state of shock at the outcome (he later prevailed on appeal in obtaining a finding that there had been deficiencies in the hearing), and did not know he could ask for a deferral, were cumulatively so rare that they should be treated as “special” for the purposes of s 81. I am not persuaded of that view.
[14] However, against the prospect that I am wrong, I will provisionally include it, for the purposes of considering whether these circumstances do, on the facts, constitute a special reason entitled to any weight in Mr Ryan’s favour, in the particular circumstances of this case.
[15] The additional matter raised by Mr Iorns was that Mr Ryan subsequently pursued a successful appeal against the original conviction for dangerous driving that resulted in the first disqualification. Mr Iorns did not maintain his argument that this factor could constitute a special reason under s 81, but did argue that it could affect the Court’s discretion, and was a factor in favour of its exercise. His point was that as it is now clarified that Mr Ryan ought not to have been disqualified at all, then the imposition of an additional period of disqualification would constitute an unduly
harsh outcome when Mr Ryan had effectively served five months’ disqualification on
the original order that ought not to have been imposed.
[16] There can be no retrospectivity in the appellate reconsideration of sentences of disqualification of driver’s licences. At the time Mr Ryan elected to drive, having just been disqualified, the position was clear and his conduct was in defiance of a Court order. Further relatively serious sanctions are provided for such disobedience. There is no rationale for crediting Mr Ryan with an aspiration that the original disqualification might subsequently be overturned, as any form of justification for driving in breach of the disqualification that had just been imposed. I am accordingly not prepared to treat that as adding in any way to whatever weight can be given to the special reasons that conceptually may apply under s 81.
[17] Turning to the facts on the distance driven, there was a marked divergence of views put to the District Court Judge. Mr Ryan’s affidavit deposed that he was concerned that if he left the car on the main road he would:
…amass parking tickets over the time it took me to sort out having someone drive my car into Wellington. I do not know Upper Hutt well, and it took me a little while to get my bearings and find the side road I was looking for.
[18] He further deposed that he did not intend to drive any real distance and was
merely concerned to secure his wife’s vehicle.
[19] Without adducing any evidence, the written submissions from the prosecuting sergeant made reference to reports to the prosecutor from three other Police officers who had observed Mr Ryan’s actions after he left the Court, having just been disqualified. Those submissions urged strongly that the conduct observed was inconsistent with Mr Ryan’s rationale, and because of driving manoeuvres undertaken that were interpreted as attempts to avoid marked Police vehicles and the route followed by Mr Ryan, the Court was invited to accept an inference that, in fact, if not apprehended, Mr Ryan had intended to drive the vehicle back to Wellington.
[20] The sentencing Judge was inclined to give Mr Ryan the benefit of the doubt on this matter. Whilst I consider that to be a generous view, I have decided not to
accept the adverse inference invited on behalf of the Police. Accordingly, this is conceptually a case in which the appellant intended only driving a short distance.
[21] However, it is readily distinguishable from the authority in East where the disqualified driver had moved into the driver’s seat only to facilitate a conversation between two parked vehicles when a Ministry of Transport vehicle happened to pull up behind them and the disqualified driver moved the vehicle the short distance required to prevent it from blocking the car behind.
[22] Even on Mr Ryan’s version, this was not a minimal relocation of the vehicle in the sense that different circumstances reasonably required in East. There is no suggestion that the immediate effect of the disqualification that had just been ordered against him was not clear, so that this constituted wilful disobedience where there was not the same imperative for Mr Ryan to drive the vehicle. Mr Ryan elected to take a risk, and was caught. In these circumstances, I do not see the short distance driven by him whilst disqualified as having any material weight as a special reason for the invocation of s 81.
[23] As to Mr Ryan’s ignorance of the fact that the Court had a discretion to defer the commencement of the original disqualification, even if conceptually qualifying as a potential “special reason”, it cannot have any material weight as a special reason in the present circumstances. If Mr Ryan had recognised the absolute imperative involved in a disqualification from driving, other options were available to him to protect the position of his wife’s vehicle, and subsequently to have it returned to Wellington. He is to be treated as having made a series of choices, the first of which was to drive to Upper Hutt in the first place for the conduct of his defended hearing on the dangerous driving charge. However confident he was of successfully defending the charge, a responsible driver ought to have had some regard to the prospect that he would be convicted, with the consequence of a disqualification following as the likely penalty. Once he had been convicted and disqualified, there remained options other than driving in breach of the disqualification order just made.
[24] Accordingly, I am satisfied that special reasons under s 81 did not exist, and the appeal must be dismissed.
Dobson J
Solicitors:
John Gwilliam & Co Ltd, Upper Hutt for appellant
Crown Solicitor, Wellington for respondent
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