Syratt v Police

[2016] NZHC 1972

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000067 [2016] NZHC 1972

BETWEEN

JASON PAUL SYRATT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 August 2016
Appearances:	L M Drummond for Appellant K South for Respondent
Judgment:	23 August 2016

ORAL JUDGMENT OF DUNNINGHAM J

[1]      Mr  Syratt  pleaded  guilty  to  a  charge  of  operating  a  vehicle  on  a  road carelessly and thereby causing injury1 and to a charge of driving a motor vehicle on a road at a speed that is or might be dangerous to the public.2   The offending arose out of two  separate incidents.    Mr Syratt  was  sentenced  on  10  June 2016  on  both charges.  His appeal is solely against the 12 month period of disqualification which

has effectively been imposed in his sentence.

Background

Facts

[2]      The first charge relates to events on 24 February 2016 where Mr Syratt was driving on Antigua Street, Christchurch.  He was waiting on the side of the road to pull out into a line of traffic.  The victim was riding his bicycle in the bicycle lane

travelling in the same direction as the appellant.  Failing to see the victim, Mr Syratt

1      Land Transport Act 1998, ss 8 and 38.

2      Section 35(1)(b).

pulled out in his car obstructing the bicycle lane and the victim collided with the front  of  the  appellant’s  vehicle.    The  victim  suffered  a  cracked  collarbone  and damage to his bike.   This resulted in the charge of carelessly operating a vehicle causing injury.

[3]      Two months later, on 23 April 2016, Mr Syratt was riding a motorcycle out near Lincoln.   He was travelling in a 100 kilometre per hour zone.   Mr Syratt approached a car travelling close to the speed limit from behind at high speed and overtook the car, reaching a speed of 173 kilometres per hour in doing so.   This resulted in the charge of driving at a dangerous speed.

Sentencing

[4]      When Mr Syratt appeared for sentencing on the charge of careless operation causing injury, the Judge sentenced Mr Syratt to pay $1,780 in reparation for economic loss and emotional harm by way of lump sum to be paid by 8 July.3    On that charge the Judge also disqualified Mr Syratt from holding or obtaining a driver licence for six months.  On the charge of driving at a dangerous speed Judge Couch imposed  a  fine  of  $600  and  ordered  Mr  Syratt  to  pay  court  costs  of  $130.

Judge Couch also disqualified Mr Syratt from holding or obtaining a driver licence for a further six months, beginning from the expiry of the first order.

[5]      The sentencing notes are not particularly detailed.   However, in Court the following exchange occurred between Judge Couch and counsel for the appellant, Ms Drummond:4

THE COURT:

…you need to address me on how you suggest I should be dealing with the

other matter.

MS DRUMMOND:

In relation to that, Sir, in my submission, it should be dealt with by way of a fine and the disqualification should be dealt with on a totality basis.

THE COURT:

3      Police v Syratt DC Christchurch CRI-2016-009-003931, 10 June 2016.

4      Police v Syratt DC Christchurch CRI-2016-009-003931, 10 June 2016 [Court Transcript].

But didn’t I – well its two separate – completely separate events, I’m bound not to do that Ms Drummond.  If it was one event with two charges then, yes, but not two separate events separated by some months…

[6]      It is clear from above, Judge Couch went on to impose the disqualification periods in respect of each charge cumulatively.

Jurisdiction

[7]      Mr Syratt is able to advance his appeal against sentence as of right.5   For his appeal to succeed it must be demonstrated that there was an error in the sentence originally imposed and also that a different sentence should be imposed.6

Discussion

[8]     In this case, the appellant takes issue with the cumulative periods of disqualification.   Both ss 35 and 38 of the Land Transport Act 1998 provide for mandatory minimum  disqualification  periods  of  six  months.    Judge  Couch  was required to order that Mr Syratt be disqualified unless special reasons relating to the offending existed which would justify ordering otherwise.7   No such special reasons existed in this case, so Judge Couch was required to impose the mandatory minimum periods of disqualification on both charges.

[9]      Section 85, however, makes provision for when a disqualification period is to start:

85       When disqualification starts

(1)       If an order is made by a court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the court otherwise directs or that Act otherwise provides.

…

(3)       In the case of a person who is at the time of the order already disqualified from holding or obtaining a driver licence, the period of disqualification ordered starts when the order or the last of the orders to which the person is already subject ceases to have effect.

5      Criminal Procedure Act, s 244.

6      Section 250(2).

7      Land Transport Act 1998, s 81(1).

[10]     Section 85(1) provides the Court with an unfettered discretion to determine the date disqualification is to run from.8   The Court in Nicol v Police considered that s 85 conferred a sufficient discretion to impose cumulative disqualification periods.9

Although the Court held that cumulative sentences might be appropriate in some cases, it considered that it would generally be preferable for the District Court to impose concurrent periods with the second period being longer to reflect aggravating factors.10    Indeed, the Court referred to commentary which suggested that that was the default position.

[11]     In Nicol, having determined that cumulative disqualification periods could be imposed, Heath J identified two further questions to be asked:

(a)       Whether   it    was    appropriate   to    order   consecutive    periods   of disqualification in the particular case?

(b)Whether  the  total  period  of  disqualification  imposed  offends  the totality principle?

[12]     In respect of the first of those questions, Heath J, applied the guidelines developed in respect of concurrent and cumulative sentences of imprisonment, and considered that a three month gap between the offending meant that cumulative periods of disqualification were justified.11   This reasoning was supported by the fact that,  had  the  appellant  been  dealt  with  on  two  separate  days  for  the  distinct offending, s 85(3) would have applied and the second disqualification would have started at the conclusion of the first.12     The Judge simply imposed a sentence to achieve that result.

[13]     In addressing the other question relating to totality, Heath J considered it could be viewed in two ways.   First, by comparing the outcome with what would have occurred if the appellant had been dealt with in Court on consecutive days.  In

that case, two minimum mandatory disqualifications would have applied and there

8      Edwards v Police [2012] NZHC 1350 at [26].

9      Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005 at [30].

10 At [31]. See also Robarts v Police [2014] NZHC 666.

would have been no special circumstances to justify departure  from the general rule.13     Alternatively,  he  considered  that  there  were  aggravating  features  of  the second offence which would have justified a stronger sanction, so 12 months’ disqualification  could  not  be  regarded  as  manifestly  excessive.14    The  Judge therefore upheld the imposition of cumulative six month sentences, while acknowledging that that was not the only way sentences could be imposed.

Application in this case

[14]     I do consider that the Judge has fallen into error in sentencing Mr Syratt.  His statement that he was “bound” not to take totality into account in dealing with the disqualification is incorrect and, indeed, the default position under s 85(1) is that sentences would have been imposed concurrently.   As a consequence, where the Judge was intending on imposing two periods of disqualification cumulatively, there was reason to step back and consider the totality of the sentence and he was wrong to assume he could not.

[15]     However, that is not the end of the inquiry.  The real question is whether a different  sentence should  have been  imposed.   To  answer that  question,  I have considered the questions discussed by Heath J in Nicol v Police.

[16]     The first is whether cumulative disqualification periods were appropriate. Here, the two offences  were separated  by two  months, they were two different offences which occurred in different ways.   That does point to the imposition of cumulative sentences.

[17]     The second question is whether cumulative sentences would be appropriate in this particular case.  Mr Syratt was 29 years old at the time of the offending.  Prior to this offending he had a clean record.  Panckhurst J noted in Dixon v Police, “it has long been recognised that lengthy periods of disqualification frequently prove so

daunting for offenders that further offending results”.15    Panckhurst J expanded on this point further in a separate judgment released ten days later:16

[12]     How long it is appropriate to disqualify offenders for is always a difficult issue. Particularly perhaps with young offenders, long terms of disqualification can be the stepping stone to recidivist driving while disqualified offending.  Many Judges in the District Court take the view that disqualification orders need to be kept as short as is attainable, given the purposes of sentencing.  Otherwise defendants become involved in a cycle of further offending.

[18]    In this case, Mr Syratt has lost his job as a builder as a result of the disqualification.   In respect of the charge of careless operation, he attended a restorative justice conference with the victim.  It is clear from the report that there was much goodwill expressed at the conference.  The appellant was extremely apologetic for causing the accident and made it clear that he wanted to make things right by paying the full reparation figure that the victim had calculated and he has since done that.   The victim was grateful that as soon as the accident occurred Mr Syratt pulled him off the road, administered first aid and called an ambulance. He also made it clear that he did not think Mr Syratt should lose his licence for six months.

[19]     There is, of course, no debate that a six month disqualification should have been imposed in relation to that charge.   However, taking into account the guilty pleas, the remorse of the appellant, the fact he is a first time offender and the fact that the default position is that disqualification periods begin from the date they are imposed, this case is one where I consider the sentences should have been imposed concurrently, although the second sentence should, in those circumstances, be longer, to reflect the degree of aggravation demonstrated by the second set of offending occurring after the first.  I would therefore substitute a sentence of eight months on the second charge, to be served concurrently.

Outcome

[20]     The disqualification order imposed on the charge of driving at a dangerous speed is therefore quashed.  On that charge Mr Syratt is disqualified from driving for

15     Dixon v Police HC Christchurch CRI-2006-409-000244, 19 March 2007 at [42].

eight months backdated to 10 June 2016.  For the avoidance of doubt, the fine and the order to pay Court costs remain and the sentence in relation to careless driving charge also remains.

[21]     The appeal is allowed.

Solicitors:

L M Drummond, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch