W v Police HC Christchurch Cri-2008-409-82

[2008] NZHC 1041

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000082

W

Appellant

v

POLICE

Respondent

Hearing:         3 July 2008

Appearances: H A Evans for Appellant

D Jackson for Crown

Judgment:      3 July 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This  is  an  appeal  against  sentence.    The  appellant  was  convicted  in  the District Court following a plea of guilty to a charge of careless use causing injury. He was ordered to pay reparation and disqualified from driving for a period of three months.  It is the period of disqualification that is the subject of this appeal.

[2]      The circumstances of the offending were that the appellant turned right into the path of an oncoming motorcyclist.   It seems the motorcyclist was travelling closely  behind  a  van.    The  Judge  accepted  this  would  have  reduced  the  time available  to  the  appellant  to  see  the  motorcyclist.    It  seems  also  to  have  been accepted  the  motorcyclist  was  an  inexperienced  operator  and  his  inexperience

contributed to the accident.

W V POLICE HC CHCH CRI-2008-409-000082  3 July 2008

[3]      The Judge therefore accepted while there was carelessness on the part of the appellant (the appellant should have looked again before turning) there were special occasions warranting a departure from the mandatory six-month period of disqualification.  Effectively the Judge halved the mandatory period.

[4]      On appeal, the appellant contends the three months was manifestly excessive and no period of disqualification should have been imposed at all.   Counsel acknowledges what is at issue here is the exercise of a discretion, and that it is incumbent on the appellant to point to some error on the part of the Judge such as failure  to  take  into  account  a  relevant  factor,  or  the  taking  into  account  of  an irrelevant factor.

[5]      In support of the appeal, counsel points to what he says is an error of fact revealed in a passage from the judgment.  The passage in question is a statement by the Judge at [2]:

Plainly he was travelling close by the van as he says in his victim report and that reduced the time that you had to see him, but it seems to me that having seen the van go past you may not have looked again when you should have.

[6]      Counsel points out in fact it was  not a  situation  of  the  van  passing the appellant’s vehicle.   Rather the van was turning left, at which point the appellant thought the road was clear and it was safe for him to turn onto the road.  That may well be, but in my judgment it does not destroy the essential thrust of what the Judge was saying, namely once the van was out of the way the appellant should have looked again.  He did not keep a proper look out and presumably that was why he pleaded guilty.

[7]      The Judge had a discretion and in my view, the difference between the two possible fact scenarios is not such as would warrant appellate intervention.  I cannot find that the Judge fell into error.  The appeal is therefore dismissed.

Solicitors:

Young Hunter, Christchurch

Crown Solicitor, Christchurch