W v Police HC Wellington CRI-2006-485-108

[2006] NZHC 1508

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-108

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 December 2006

Appearances: C Ross for Appellant

K G Stone for Respondent

Judgment:      5 December 2006

Reasons:        6 December 2006

REASONS FOR JUDGMENT OF GENDALL J

[1]      This is an appeal against conviction and sentence entered in the District Court at Wellington on 15 August 2006 of a charge of reckless driving.  The appellant was convicted after a defended hearing, fined $600, Court costs $100 and disqualified from holding or obtaining a driver’s licence for a period of six months.

Factual background

[2]      The evidence in the District Court was that the appellant was operating a white utility motor vehicle a few minutes past midnight on 25 March 2006.  It was in a busy area in central Wellington.  The vehicle was modified with certain customised features including an airbag suspension, which it seems, was originally designed for American trucks so that they could “bounce” their loads.  Apparently it was a craze in customised trucks around the world and enabled the rear of a vehicle to be raised

when driving at a higher speed or lowered when cruising or stationary.

W V NEW ZEALAND POLICE HC WN CRI-2006-485-108 5 December 2006

[3]      The appellant was driving his vehicle with three passengers and he was on the forecourt of a petrol station in central Wellington.   One of the persons in the vehicle lowered the suspension so that the rear of the vehicle came into contact with the concrete forecourt.  The vehicle was seen to be driven by the appellant in a semi- circular path between several of the fuel pumps on the forecourt.   Apart from the loud scraping noise that was being made, and which attracted the attention of other customers, a service station attendant saw the manoeuvre creating a dramatic display of sparks through the metal rear of the vehicle being dragged on the ground.  The vehicle was seen to perform this manoeuvre for about 20 seconds and after leaving the fuel pump area it went towards the air hose where it was stationary but then began the bouncing movement up and down, no doubt because some person was manipulating controls inside the vehicle.  The appellant gave evidence, confirming that a passenger was operating those particular controls and that young female passenger acknowledged that she had done it.

[4]      The forecourt attendant became alarmed because of what he thought was dangerous manoeuvres and called the police.  They arrived and observed gouges or grooves in the forecourt caused by the dragging of the metal rear of the vehicle on the ground.  The Judge found as a fact that the rear end of the vehicle was dragging on the ground causing sparks and leading to the grooves being created which was seen on the forecourt by the attendant and later police officers.

[5]      The  defence  position  was  that  the  passenger  had  operated  controls  from inside the vehicle and the appellant, although aware that the rear of his vehicle had descended, said he was not aware it was dragging on the ground and he said he did not see any sparks.   His evidence was he was aware a passenger had activated a mechanism to lower the rear of the vehicle but he had told her to raise it up.   In answer to a question from the Judge “Don’t you consider it highly dangerous to drive a vehicle with somebody else having control over an essential part of it?”  The witness answered in the affirmative.  The Judge found the charge of reckless driving to be established, concluding that the appellant expected that the passenger who he had picked up that night shortly before, would be able to operate a complicated and dangerous modification and the Judge went on to say at [5]-[7]:

“[5]     …Dangerous if not operated properly, and one can only hazard a guess at what chaos would have been caused if the same thing had happened when  he  was  driving  at  speed  on  the  open  road  and  somebody  started playing with the control box.

[6]       On this particular occasion he was in an area where there are petrol fumes, LPG fumes, tanks, warnings of the dangers of naked flames, and he allowed his vehicle to be operated in a way it is set up to be operated.  That is by remote control, by leaving the controls with two young girls who he did not know, and the knowledge that those controls can lower any one of four corners of the vehicle.  He professes to be a professional driver.  I can only find he must have had foresight of the dangerous consequences of those controls being operated remotely by somebody else in the vehicle.   And when that did happen, and he was aware of the vehicle back dropping, he continued to drive it regardless of the risk of a scraping along the road or along the surface and the inevitable sparks flying.

[7]       I find that the defendant’s conduct fits fairly and squarely into the definition of reckless…”

Counsel’s submissions

[6]      Ms Ross has submitted that for there to be reckless driving there is required to be a subjective, as well as objective element.  The appellant in this case contended that he was not aware that the back of his vehicle was connected with the ground so as to generate sparks and therefore whether he had foresight that this could happen or not is irrelevant.   It was argued that to have foresight he would had to have been aware that the passenger would be likely to play with the remote control and lower the suspension so the vehicle could drag along the ground.  Counsel contended that the appellant’s evidence was that it was impossible for the back end of the vehicle to touch the ground and as he did not believe that to be the case the test of recklessness could not be met.

[7]      Miss   Ross   argued   that   the   reference   to   the   “inherently   dangerous modification” which the appellant should have been aware of, led the Judge into error because she failed to consider whether the appellant was actually aware of the risk.   Counsel  argued  that  if  the  Judge  is  correct  then  every driver  who  has  a modification and a passenger capable of operating that modification is driving recklessly if they are aware of the potential risk of the passenger so operating the mechanism.

Discussion

[8]      In  my  view  the  appellant’s  counsel’s  submissions  are  all  aimed  at  the question of whether foresight of a passenger operating a mechanism is reckless.  But the case was not really about that.  The police case was that the vehicle was driven in a showing off fashion around the forecourt of the service station when the rear suspension, which the Judge found that the driver knew could be lowered, and had in fact been lowered, created gouges or grooves in the forecourt in a show of sparks, as well as the loud screeching noise.  The Judge found that to have occurred as a matter of fact.   It follows that she rejected the contention of the appellant that he was unaware of the scraping of the vehicle on the ground and the display of sparks.  The essence of the Judge’s findings was that although aware that someone else could operate the mechanism the recklessness arose when there was continued driving after the appellant was aware of the vehicle back descending and scraping on the surface.

[9]      “Reckless”  in  the  context  of  reckless  driving  is  prohibited  by  s7  of  the Land Transport Act 1998 and is an offence pursuant to s35.  It involves a foresight of dangerous consequences that could well happen, together with an intention to pursue the course of conduct even though those consequences are a clear risk.  Awareness and reckless intent usually must be something to be inferred from the proved circumstances.  The three elements involved in reckless driving are that a driver fell below the standard of care expected of a reasonable and competent driver.  Secondly, it  led  to  a  resulting  situation  which  was  objectively  dangerous.    Thirdly,  and crucially, the driver must be aware of the potential danger and continue to act despite knowledge of the possible consequences.  Recklessness involves an apprehension of a real risk of danger but nevertheless an offender goes ahead and takes that risk.  If there is no appreciation of risk then there cannot be reckless driving;  see D’Almeida v Auckland City Council (1984) 1 CRNZ 281.

[10]     In the present case the Judge, as I have said, found on the facts that the appellant knew the rear end had been deliberately lowered.   There was noise and sparks emanating in the vicinity of fuel and gas pumps and other inflammable items at a busy time of the night, where members of the public were present.  It was largely immaterial who had lowered the rear suspension.   What was material was that it

having  occurred  the  appellant  continued  to  drive  on  the  evidence  for  about  20 seconds in what was a display of bravado at least to the onlookers.  The evidence pointed to driving below a proper standard and in a situation, which was objectively dangerous to all bystanders in the opinion of the Judge.  Of course that is why the forecourt attendant called the police.   Awareness of the danger that continuing to drive knowing of the risk of possible consequences was an inference that the Judge was entitled to draw based on her factual findings.  The potential risk was not that of the  passenger  operating  the  remote  control,  but  of  there  being  a  conflagration through sparks igniting the inflammable sources nearby.

[11]     The Judge was entitled to convict the appellant on the factual findings she made and the appeal against conviction must be dismissed.

Appeal against sentence

[12]     A mandatory disqualification of six months is required unless there be special circumstances.  Counsel submitted that special reasons existed so as to reduce the disqualification period, they being that a passenger lowered the suspension and that disqualification  meant  the appellant  could  not  pursue  his  occupation  as  a  truck driver.  Mere loss of employment of its own is not usually a special reason not to impose a mandatory period of disqualification;  see for example, Police v Royal HC ROT AP13/97 15 May 1997 Tompkins J.  In terms of s81 there must be a special reason relating to the offence not the offender which is a mitigating or extenuating circumstance which does not in law amount to a defence but is so directly connected with  the  commission  of  the  offence  that  the  Court  ought  properly  take  it  into account.

[13]     The gravamen of this offence, as I have said, was not that someone else may have lowered the rear suspension but that knowing that such to had occurred continuing to drive in a reckless manner on the forecourt creating the sparks.  The involvement of the passenger in such a case as this was not a special circumstance relating to the offence and the Judge was required by law and obliged to impose a mandatory period of six months’ disqualification.  The fine and costs imposed were not excessive and so the appeal against sentence must be dismissed.

……………………………

J W Gendall J

Solicitors:

John Miller Law, Wellington for Appellant
Crown Solicitor, Wellington for Respondent