W v Police HC Invercargill CRI 2010-059-313

[2010] NZHC 2322

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-059-313

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 December 2010

Counsel:         N M Willcocks and K J Logan for Appellant

S McKenzie for Respondent

Judgment:      14 December 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr W   appeals against his sentence of disqualification, maintaining that the District Court Judge lacked jurisdiction to impose it.

[2]      The sentence was passed for intentional damage.  The incident occurred on

19 September after he had been at a function with an associate.   Both were very drunk.  As the two of them crossed the road Mr W   hurled a bottle that he was carrying at a parked vehicle from a distance of about two to three metres.  The bottle smashed the driver’s side window.  Glass was sprayed throughout the vehicle, and doubtless on the road.   Mr W   initially denied causing the damage, but he admitted it once his fingerprints were identified on the bottle.

[3]      Mr W   and his associate both pleaded guilty.  The associate was charged with unlawful interference with a motor vehicle because, as the summary of facts relating to him shows, he returned to the vehicle and tried to open the passenger

door.  The associate received a sentence of 75 hours community work.  Mr W 

W V NEW ZEALAND POLICE HC INV CRI 2010-059-313  14 December 2010

was given 50 hours community work.  Each was ordered to pay half of the reparation of $280, and I am told that Mr W  ’s share has been paid.

[4]      The Judge also disqualified Mr W   from holding or obtaining a driver’s licence for three months.  His reasoning was that the offence related to road safety in that glass must have been left on the public roadway where the vehicle was parked when it was damaged.

[5]      Jurisdiction to impose disqualification is found in s 124 of the Sentencing Act, which governed the sentencing in this case.   The Court may disqualify an offender where the offence was facilitated by the use of a motor vehicle or one was used to flee or avoid detection.  Plainly that was not this case.  The Judge appears to have had in mind the general power of disqualification for offences affecting road safety, which power is found in the Land Transport Act 1998, but that power is confined to offences against that Act.  This offence was charged under the Summary Offences Act 1981.

[6]      That being so, the appeal must be allowed.

[7]      The question is what sentence ought to be substituted under s 121 of the Summary Proceedings Act.  That allows this Court to impose a sentence that is more or less severe than that imposed by the District Court.  I have already observed that Mr W  ’s associate received a longer period of community work.  For that reason I was initially disposed to increase the sentence of community work to the same sentence as that passed on the co-offender.

[8]      But on reflection I have decided not to do so.  I am told that Mr W   has already served  38  days  of  the  disqualification  and  the  facts  relating  to  the  co- offender do point to a dishonest intention which was not present in Mr W  ’s case.  He has nothing to be proud of.  He is guilty of mindless, drunken vandalism and he did not immediately admit to his offence.   Nonetheless, the absence of dishonest intent does distinguish him from his co-offender and as I have noted, he has already served part of the disqualification.

[9]      The appeal is allowed.  The disqualification is set aside and the sentence of community work remains.

Miller J

Solicitors:

Macalister Todd Phillips, Queenstown for Appellant

Preston Russell Law, Invercargill for Respondent