Scahill v Police

[2012] NZHC 1780

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000022 [2012] NZHC 1780

BARNABY JAMES SCAHILL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 July 2012

Appearances: E C Bulger for the Appellant

A Raj for the Respondent

Judgment:      19 July 2012

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      Mr Scahill appeals the sentence that was imposed on him in the District Court on a charge of careless use of a motor vehicle causing injury.

[2]      Mr  Scahill,  who  is  19  years  of  age  and  a  first  offender,  was  convicted following a defended hearing.

SCAHILL V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000022 [19 July 2012]

[3]      The facts of his offending as found by the Judge were that, at about 9.14 pm on 25 September 2010, Mr Scahill was turning right at an intersection.   He was focused on where he was going and did not see the victim coming through the traffic lights on his motorbike. There was a collision and the victim suffered a fractured left femur, fractured left and right forearms and fractured pelvis.  He spent 17 days in hospital, and had pins put into his body which are likely to remain there for the rest of his life.   Mr Scahill was on a restricted driver’s licence and was carrying three passengers.

District Court decision

[4]      In his decision, the District Court Judge held that Mr Scahill had failed on two counts to observe the standard of care expected of a reasonable and prudent motorist.  Firstly, he had failed to pay careful attention to vehicles coming towards him.  Secondly, he had begun his right hand turn earlier than would a careful and prudent motorist.

[5]      As regards the sentence, the Judge stated that the degree of injury was “huge and out of proportion to the degree of carelessness,” but held that a conviction was appropriate.  Taking into account that Mr Scahill was a student, the Judge ordered payment of $3,000 in reparation to be paid at the rate of $20 per week.  Court costs were also ordered, and Mr Scahill disqualified from driving for 11 months.

Grounds of appeal

[6]      On appeal, counsel, Ms Bulger, advances two grounds:

(i)That the period of disqualification, being almost twice the minimum mandatory period, was manifestly excessive.

(ii)That  the  amount  ordered  by  way  of  reparation  was  incorrectly calculated by the Judge.

[7]      As regards the first grounds of appeal, the period of disqualification, Ms Bulger accepts that disqualification was appropriate.  However, she submits that in terms of the purposes and principles of sentencing, there was no justification for imposing a period longer than the mandatory minimum of six months.  Mr Scahill was a first offender, his carelessness was at the lower end of the scale and there was an additional penalty due to the fact that the car he was driving belonged to his father and that, because of the breach of the restricted licence requirement, the vehicle was not covered by insurance.  Mr Scahill has apparently agreed to pay for the repairs.

[8]      Ms Bulger submitted that the Judge was wrong in finding that there were two separate counts of carelessness and that, in reality, the two matters relied upon were part and parcel of the one careless act.

[9]      Unfortunately, the Judge did not give any reasons for imposing the 11 month period.  This is problematic because it is implicit, at the same time, in the sentencing notes, as the Crown acknowledges, that he considered the degree of carelessness to be low.  In those circumstances, I consider that the most just solution is not for me to independently review the degree of carelessness but to reduce the disqualification period as advocated by Ms Bulger.  The District Court Judge has had the benefit of hearing and seeing the witnesses, and I see no reason to depart from his assessment. As I have said, the problem is that his assessment of carelessness is at odds with the period of disqualification imposed.

[10]     I am also influenced in coming to this conclusion by what I am about to say about the reparation issue.

[11]     The only other matter I would note in relation to the disqualification is that the outcome I consider to be just is the same outcome as was reached in the decision

of Tupu v Police[1].

[1] Tupu v Police HC Wellington AP101/03, 8 July 2003.

[12]     As I have said, the second ground of appeal relates to reparation.

[13]     Ms Bulger tells me that in coming to the figure of $3,000, the Judge indicated that he had calculated the victim had been out of pocket for about 15 months after the accident, and that, if Mr Scahill could pay $20 per week for 15 months, that would be an appropriate figure by way of reparation.  In fact, a payment of $20 per week for 15 months would yield the lesser figure of $1,200.

[14]     Ms Bulger said that she was happy for me to consider the matter of reparation afresh.

[15]     The victim, as I have said, sustained significant injuries and his loss was in the vicinity of $12,000.  Ms Bulger also advises that a figure of $3,000 reparation is realistic as far as the appellant is concerned, and that he will be able to pay $20 per week.

[16]     In  all  the  circumstances  and  especially  having  regard  to  my  decision regarding the period of disqualification, I consider that the sum of $3,000 reparation is an appropriate and just one.  I also consider that this is, in fact, most likely what the Judge himself intended and that there has simply been an arithmetical miscalculation.

Outcome

[17]     The outcome of this appeal is, therefore, that:

(i)The disqualification period is varied, and the period of 11 months replaced with a period of six months disqualification, and

(ii)The reparation order for payment of $3,000 at the rate of $20 per week is confirmed.

Solicitors:

Riverlands Chambers, PO Box 25-259, Christchurch

Raymond Donnelly & Co, PO Box 553, Christchurch 8140