Simpson v Police HC Auckland CRI 2010-404-65

[2010] NZHC 690

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000065

BETWEEN  ALLAN TREVOR SIMPSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 May 2010

Appearances: J Moates for Appellant

N Speir for Crown

Judgment:      10 May 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Public Defence Service, Auckland

SIMPSON V NEW ZEALAND POLICE HC AK CRI-2010-404-000065  10 May 2010

[1]      On 5 February the appellant was convicted on his guilty plea of driving whilst his licence was suspended.  He was further disqualified by Judge Wade for a period of nine months. He appeals the disqualification of nine months.  Ms Moates submits that a period of six months, the minimum period, was appropriate for the offending and that the sentence of nine months’ disqualification was manifestly excessive.

[2]      The appellant had his driving licence suspended on 22 March 2009 for a period of three months due to his accumulation of demerit points.   That disqualification was due to expire on 23 June.   On 13 June, 10 days before the disqualification was due to expire, he was driving a car in Mount Albert. Coincidentally he was identified driving the vehicle by the same police officer who had served the notice of disqualification on him.  He was stopped.  By the time he was stopped he and his passenger had swapped seats but when told he had been seen driving the vehicle he admitted driving and then said thought his suspension had expired a few days earlier.

[3]      The appellant initially pleaded not guilty and the matter was scheduled for a defended hearing on 5 February 2010.   At the outset of the hearing that day he pleaded guilty.   In sentencing him the Judge explained his reasons for fixing the disqualification period of nine months as follows:

[3]       Now Mr Simpson has realised the game is up and says, “I am really very sorry, so please treat me leniently.”  In my judgment he has forfeited his right to be treated leniently because of the fact that he chose not to plead guilty at an earlier stage, and simply puts the Court, the prosecution, and indeed Sergeant Chung himself, to substantial inconvenience.

[4]       As a result of that the disqualification has to be, in my judgment, more than the minimum period.   The answer is for Mr Simpson to in the future learn from his experience today, and if he is guilty of an offence then the sooner he pleads guilty to it the better.   That case of R v Hessel [sic] [[2009] BCL 811] is not simply in relation to discounts for guilty pleas in relation to prison sentences, it is also in relation to fines and periods of disqualification.

[5]       That is why I think unfortunately Mr Simpson is going to lose his license [sic] not for six months but for nine months, but in the circumstances I will not impose any financial penalty on top. ...

[4]      Ms Moates submits that in the normal course of events for a first offence of driving whilst  suspended,  there  being no  driving fault,  a disqualification  of  the minimum period of six months would be imposed, referring to the general observations to that effect in the case of Huaki v Police.[1]   She also submits that even a late guilty plea on the day of hearing should attract some credit for the guilty plea referring to R v Hessell.[2]

[1] Huaki v Police HC Wellington CRI-2005-485-6, 14 June 2005

[2] R v Hessell [2009] NZCA 450.

[5]      It  is  further  submitted  for  the  appellant  that  there  were  no  aggravating features in this case to justify the increase in the period of disqualification over and above the minimum period of six months and that, consistent with s 8(g) of the Sentencing Act 2002 and Fleming v Commissioner of Transport and Others[3]:

That only the minimum penalty which will operate as a deterrent is justified and that any excess is, if not cruel, then certainly unjustified.

[3] Fleming v Commissioner of Transport and Others [1958] NZLR 101 at 103.

[6]      For the Crown Mr Speir submitted that the sentence was available to the Judge and could not be categorised as manifestly excessive bearing in mind that the maximum sentence for the offending includes a period of imprisonment of up to three months and/or a fine of $4,500 in addition to the minimum period of disqualification of six months.  He submitted that, rather than the Judge penalising the appellant for not pleading guilty earlier, effectively the Judge had extended the period of disqualification instead of adding a financial element to the sentence which he could have done.

Decision

[7]      I agree in principle with the submission for the Crown that there should be some incentive to people to plead guilty at an early stage.  That is the point of the Court of Appeal’s decision in Hessell.   It may well be that the unwritten practice adopted in the District Court is that for an early guilty plea a minimum period of disqualification of six months without further penalty is imposed.   That may be rationalised on the basis that a period of nine months might be appropriate but for an

early guilty plea recognition is given to that reducing the period of disqualification to six months.  On that basis a disqualification of nine months imposed for a guilty plea on the date of hearing would be supportable.

[8]      However,  in  my  judgment  there  are  some  difficulties  with  the  sentence imposed in this case.  The first is that the Judge has not articulated the approach just discussed as the basis upon which he imposed the disqualification of nine months in this case.   As I read the sentencing notes the Judge has effectively increased the period of disqualification because the appellant failed to plead guilty earlier.  It is not so much a case of not applying a discount to the otherwise appropriate sentence, it is, on one view of it at least, a case of imposing an additional three month disqualification or uplift to reflect the fact that the appellant did not plead guilty earlier.  That is not permissible in accordance with the principles discussed by the Court of Appeal for guilty pleas in accordance with Hessell.

[9]     Next, the start point of nine months’ disqualification would have to be appropriate for the offending in the first place.   In this case, as noted, it is the appellant’s first conviction for driving in breach of a suspension.   The suspension itself was imposed due to an accumulation of demerit points and was only 10 days away from expiry.   It is not as though the appellant drove within a few days of receiving notice of suspension.   Finally, there was nothing about the appellant’s driving of itself which attracted him to the attention of the police officer in this case.

[10]     For all of those reasons it is difficult to see that a disqualification of in excess of six months would have been appropriate in this case in any event.

[11]     It follows that I am driven to the conclusion that the appeal must be allowed. The disqualification of nine months is set aside.  It is replaced by disqualification for a  period  of  six  months,  that  disqualification  to  run  from  the  date  the  original

disqualification was imposed by the District Court.

Venning J