v v Police HC Christchurch CRI 2009 409 177

[2010] NZHC 9

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2009 409 000177

V

Appellant

v

POLICE

Respondent

Hearing:         4 February 2010

Appearances:  Appellant in Person

R M Thomas  for Respondent

Judgment:      4 February 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      On 21 October 2009 Mr V   was fined $250 on each of two charges of

breaching  a  learner’s  licence,  one  of  failing  to  display  an  L  plate,  and  one  of  not being  accompanied.   He  was  also  disqualified  for  three  months  and  this  appeal  is against that disqualification.

[2]      Mr V   is 28 years of age.  He has 26 previous convictions for breaches

of a learner’s licence as well as other convictions.  Although the Judge’s sentencing remarks are brief, it can be safely inferred that the previous convictions prompted the

Judge to impose the disqualification.

V V POLICE HC CHCH CRI 2009 409 000177  4 February 2010

[3]      Mr V   has explained that he has now obtained a restricted licence and that when this offending occurred he had not had an opportunity to do so.   He has explained  that  the  previous  offending  with  reference  to  learner  licences  is  now  a thing of  the  past.   He  has  also  explained  that  the  disqualification,  which  has  been suspended pending the hearing of this appeal, will present major problems for him in exercising his responsibilities towards his children and also in finding work.

[4]      My duty is to check the sentence imposed by the Judge to see whether he has acted beyond his powers or has in some other way fallen into error.   If the sentence

of disqualification was available to him I have no power to interfere unless in all the circumstances   the   duration   of   the   disqualification   was   what   we   describe   as manifestly excessive.

[5]      Under s80(1) of the Land Transport Act 1998 a Judge has power to disqualify

if an offence relates  to  “road  safety”. Many  years  ago  the  Court  of  Appeal considered that phrase in  Husband v Napier City Council [1979] 1 NZLR 1962 and

it explained what it meant.  With the benefit of that decision I am satisfied that your offending falls within that phrase and, as far as the law goes, Mr van V  , Judge Bisphan had the power to impose a disqualification.  I am not entitled to say that if I had  been  doing  the  job  I  would  not  have  imposed  the  disqualification.   I  have  to decide whether the Judge was wrong in law in imposing it, and I am afraid I cannot say that.

[6]      And  as  far  as  the  length  of  the  disqualification  is  concerned,  I  can  only interfere if it is manifestly (which means plainly, obviously) out of kilter with what should have been expected.  Although it is great to hear that you have now obtained your restricted licence, as you probably know, Judges are, I am afraid, influenced by past conduct as well.   In this case Judge Bisphan was clearly influenced by the 26 previous convictions.

[7]      You  have  explained  the  implications of being in prison and other  matters. But at times Judges have to take a fairly blunt approach to things and that is what Judge Bisphan has done here. The term imposed is not what I could responsibly say

is manifestly excessive.     This means that while I am entirely sympathetic to what

you have said, this is not a case where I could interfere with what the District Court Judge has done and your disqualification will need to start to run.  You have driven today I presume.   The disqualification will start to run tomorrow.

[8]      So  you  keep  on  with  this  new  chapter.  It  is  not  going  to  be  easy  with  a disqualification, but there are lots of people who get through those sorts of obstacles.

Solicitors:            Crown Solicitor, Christchurch

Copy to:             Appellant