Williamson v Police

[2016] NZHC 2291

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2016-409-60 [2016] NZHC 2291

BETWEEN

DOUGLAS WILLIAMSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 September 2016
Counsel:	D Williamson, in person, Appellant N A Pointer for Respondent
Judgment:	27 September 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Christchurch
Copy to:

D Williamson, Appellant

WILLIAMSON v NEW ZEALAND POLICE [2016] NZHC 2291 [27 September 2016]

[1]      Mr Williamson appeals against a fine that was imposed by Judge Gilbert in the  District  Court  at  Christchurch  on  19  May  2016.1      The  fine  was  imposed following a charge involving an infringement notice.  It was brought under s 10(2) of the  Road  User  Charges  Act  2012  and  the  Road  User  Charges  (Infringement Offences) Regulations 2012 (the Regulations).

[2]      Mr Williamson  was  alleged  to  have operated  a heavy road  user charges vehicle on a road where the reading of the distance recorder fitted to the vehicle exceeded the maximum reading specified in the distance licence by more than 500 kilometres.   The amount by which the distance licence was exceeded was 1057

kilometres.2

[3]      Schedule 2 to the Regulations provides a table of infringement fees that are applied depending upon how far over the 500 kilometre threshold the reading is. There are a number of bands.  Where the reading is between 500 kilometres to 1000 kilometres over the limit, the specified fee infringement fee is $300.   Where the reading is 1000 kilometres to 2500 kilometres over the licence, the infringement fee is $600.  The scale escalates so that the maximum theoretical fine is one of $3,000 for an individual or $15,000 for a company.

[4]      Mr Williamson  made submissions  to Judge  Gilbert  on  the circumstances surrounding the infringement.  It is clear from discussions that occurred before the penalty was imposed, that there was some issue over a letter that Mr Williamson had written to the Court asking for a District Court Judge who had been involved in sentencing him and his brother on another matter not to sit.

[5]      That issue was irrelevant to the assessment of penalty in  relation to  Mr Williamson’s situation.  I put it to one side and do not embark on an inquiry into whether what was said was appropriate or not.

[6]      One piece of information that is before me, but was not before Judge Gilbert relates to the reason why the infringement occurred.  Mr Williamson is dyslexic.  He

1      New Zealand Police v Williamson [2016] NZDC 8853.

2      Road User Charges Act 2012, s 10(2); see also Road User Charges (Infringement Offences) Regulations 2012, reg 4(2)(b).

has processes in place to deal with most issues that arise in the course of his business to ensure he does not infringe requirements.   However, in this particular case he failed to notice that the limits had been exceeded in the way they had.  That, I am satisfied, gave rise to an innocent breach rather than one which was intentional.  The breach should be treated on that basis.

[7]      The  distance  by  which  Mr  Williamson  exceeded  the  limit  was  only  57 kilometres into the second band which deals with readings between 1000 kilometres and 2500 kilometres over the limit.  As a result, he came within a band where the infringement fee is $600, rather than the first band in which the fee would be $300. In those circumstances, an infringement fee of $600 seems clearly excessive, particularly when the lesser band represents 50 percent of the fee imposed on the second band.

[8]      I have considered a judgment given by Mander J, in Payne v New Zealand Police.3     In that decision, the Judge made it clear that once the question of infringement was before the Court an approach to imposition of penalty should be adopted that proceeds on ordinary principles of sentencing.4   That enables me to take account  of  the  personal  mitigating  factor  arising  from  the  problem  involving dyslexia, and the relatively small number of kilometres over the limit that gave rise to the $600 infringement fee.

[9]      There is also a concern that, in his decision, Judge Gilbert purported to enter a conviction.  Although the appeal is against sentence only, I intend to set aside the conviction.  Section 375(1)(a) of the Criminal Procedure Act 2011 makes it clear that a conviction should not be entered where an infringement offence is in issue.

[10]     The appeal is allowed to this extent: (a)           The conviction is set aside.

(b)      The  fine  of  $600  is  set  aside.    In  substitution  a  fine  of  $300  is

imposed.

3      Payne v New Zealand Police [2014] NZHC 328.

4 Ibid, at para [33].

(c)       The order for payment of Court costs is quashed.

[11]     I have indicated to Mr Williamson that he may make arrangements with the

Registrar to pay that fine over time, if necessary.

P R Heath J