Smith v Police
[2017] NZHC 763
•24 April 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2017-483-000003 [2017] NZHC 763
BETWEEN DAVID GRAHAM SMITH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 April 2017 Counsel:
Appellant in person
N A Refoy-Butler for RespondentJudgment:
24 April 2017
JUDGMENT OF COLLINS J
Introduction
[1] Mr Smith appeals a “reparation” order made by Judge I D R Cameron in the Whanganui District Court on 17 November 2016.1 The order in issue was made after Mr Smith pleaded guilty to a charge of driving under the influence of a drug to such an extent as to be incapable of having proper control of the vehicle. It was the third occasion Mr Smith had been found guilty of offending of this nature.2 Judge Cameron disqualified Mr Smith from driving for a period of four months and ordered him to pay “reparation” of $762.63 comprising $652.63 for the blood test
analysis and $110 for medical expenses.
1 Police v Smith [2017] NZDC 7696.
2 Land Transport Act 1998, s 58(1)(a) and (3). Maximum penalty is two years’ imprisonment or a fine not exceeding $6,000. The defendant must also be disqualified from holding or obtaining a driver’s licence for more than a year unless the Court, for special reasons, orders a lesser period of disqualification under s 81(1) of the Land Transport Act.
Context
[2] Mr Smith was apprehended on 16 May 2016 after he had been observed driving in an erratic manner on suburban streets in Whanganui. Mr Smith was taken to the Whanganui Police Station where a compulsory impairment test procedure was carried out. A blood specimen was taken by a medical officer that revealed Mr Smith had used two controlled drugs, namely methadone and diazepam, both of which had been lawfully prescribed for Mr Smith.
[3] The summary of facts to which Mr Smith pleaded guilty stated:
The New Zealand Police seek a cost recovery Court Order for medical expenses and fees incurred obtain[ed in] analysing the blood sample, totalling $762.63, comprising $652.63 for drug analysis, $110 for medical expenses ...
[4] Mr Smith initially pleaded not guilty. His defended hearing was scheduled to take place on 17 November 2016. Following discussions between Judge Cameron and Mr Leith, counsel for Mr Smith in the District Court, Mr Smith vacated his not guilty plea and pleaded guilty. Judge Cameron then convicted Mr Smith and imposed the orders I have summarised in paragraph [1].3
Key legislative provisions
[5] Section 67(1B) of the Land Transport Act 1998 (the Act) provides that persons who are convicted of an offence under, amongst other provisions, s 58 of the Act, are required to pay the blood test fee and any associated medical expenses that have been incurred under s 67(1) of the Act. Those provisions applied in Mr Smith’s case.
[6] The blood test fees are set out in cl 5 of the Land Transport (Blood Test Fee)
Notice 2014. The fee prescribed at the time of Mr Smith’s offending was $652.63.
3 Mr Smith’s sentence was set out in one paragraph and reads:
“Special reasons relating to the fact that prescription drugs only were involved. Disqualified
from holding or obtaining a driver’s licence for four months commencing midnight
17 November and that is under s 81 Land Transport Act 1988. Ordered to pay reparation to
New Zealand Police in the sum of $762.63”.
[7] Section 67(1B)(a) of the Act states that when a person is convicted of an offence under s 58 of the Act, the blood test fee and any associated medical expenses are “deemed to be a fine imposed on the conviction of the person for that offence”.
Appeal out of time
[8] Mr Smith’s notice of appeal was filed on 22 February 2017 and therefore out of time. He has explained the reasons for the delay relate primarily to the fact that he is engaged in caring for his elderly mother. There is no prejudice to the Crown arising from the delay in filing the notice of appeal. I therefore allow the appeal to be filed out of time.
Grounds of appeal and analysis
[9] Mr Smith, who represented himself in this Court, appeals the “reparation”
order. There are three grounds of appeal.
[10] First, Mr Smith submits that the blood test was incomplete and therefore not relevant. This ground of appeal has no attraction because the evidence clearly shows that the blood test demonstrated the presence of methadone and diazepam. There was nothing “incomplete” about this evidence, even though the blood test did not reveal the quantities of the drugs or the presence of other medications Mr Smith was taking.
[11] Second, Mr Smith indirectly raises an issue about whether or not he was warned by the enforcement officer that he was liable to pay the blood test fee and medical expenses.4
[12] This issue was not pursued in the District Court because Mr Smith pleaded guilty to the summary of facts, which specified the amount the police were seeking to have Mr Smith pay in relation to the blood test and medical expenses.
[13] Absent clear and convincing evidence that the law enforcement officer did not warn Mr Smith of his liability to pay the fees, I am not prepared to allow this
ground of appeal. The reason for this is Mr Smith pleaded guilty to a summary of facts that clearly explained the fees that the police were seeking to have him pay.
[14] The third ground of appeal concerns the fact Judge Cameron made a “reparation” order against Mr Smith. There is a minor error in this aspect of Judge Cameron’s decision. The orders in question should not have been described as “reparation orders” as they are deemed to be a fine.5
[15] Notwithstanding the misdescription in the order made by Judge Cameron, the orders he made were correct. Mr Smith is required to pay the blood test fee and medical expenses. Those fees are deemed to be a fine.
Conclusion
[16] There is no basis upon which I can allow the appeal. It is therefore dismissed.
D B Collins J
Solicitors:
Crown Solicitor, Whanganui for Respondent
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