Circle K Limited v Christchurch City Council [2013] NZHC 2388 (12 September 2013)

Last Updated: 11 October 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000006 [2013] NZHC 2388

BETWEEN	CIRCLE K LIMITED Appellant
AND	CHRISTCHURCH CITY COUNCIL Respondent

Hearing:	11 September 2013
Appearances:	J B Kipping (Director of Circle K Limited) P King as McKenzie Friend for Mr Kipping V M Clements for Respondent
Judgment:	12 September 2013

_{JUDGMENT OF D GENDALL J}

[1] Circle K Limited was issued with five infringement notices by the respondent between 16 October 2011 and 21 January 2012. They each alleged that being the registered owner of a Rover motor vehicle, registration No. JKINNZ it was parked on a road in Christchurch either displaying an expired licence label or, alternatively, displaying no licence label in contravention of s 242(1) of the Land Transport Act

1998.

[2] With respect to four of these infringement notices, Notice 5205372 (for the

16 October 2011 offence), Notice 5209067 (for the 18 October 2011 offence), Notice 5199393 (for the 31 October 2011 offence) and Notice 5222976 (for the

21 January 2012 offence), the appellant gave notice of its intention to defend these infringement notices and this was heard before Justices of the Peace in the District

_{Court on 6 December 2012.}

CIRCLE K LIMITED v CHRISTCHURCH CITY COUNCIL [2013] NZHC 2388 [12 September 2013]

[3] It seems the fifth infringement notice, Notice 5222975 (which may have been also issued with respect to the 21 January 2012 offence), was not part of the hearing before the District Court.

[4] With respect to this infringement notice, 5222975, although this was somewhat unclear, it seems that the appellant, despite having accepted this infringement and, as I understand it, making paying of the automatic fine, endeavoured to include this matter in its current appeal. That, however, is not possible. This Court, as found earlier in the decisions Edwards v Police1 and Davies

v Ministry of Transport2 does not have jurisdiction in this matter as there has been no

“determination” by the District Court with respect to that infringement notice to trigger the appeal jurisdiction under s 115 of the Summary Proceedings Act 1957.

[5] It must follow, therefore that, insofar as the appellant may be endeavouring to appeal with respect to this infringement notice, 5222975, there is no jurisdiction to hear that appeal and it is dismissed.

[6] I turn back now to consider the other four infringement notices outlined at paragraph [2] above.

[7] In the District Court it is recorded that the appellant pleaded guilty with respect to the infringement offences on Notices 5205372, 5209067 and 5199393. And the Justices of the Peace found the charge proven with respect to the fourth infringement notice, Notice 5222976. They then sentenced the appellant with respect to that fourth infringement notice, together with the other three infringement notices (for which the appellant had pleaded guilty) to a fine of $200 plus court costs of $132.89 on each offence.

[8] The appellant now appeals against the District Court conviction and sentence.

[9] The specific grounds of appeal outlined in the appellant’s Notice of Appeal are stated to be:

1 _{Edwards v Police HC Wellington 14 February 2005, CRI-2004-485-130.}

2 Davies v Ministry of Transport [1989] NZCA 157; (1989) 5 CRNZ 371.

As soon as Circle K Limited realised that all matters were substantially the same – considerable Court time was saved by effectively pleading guilty to the offences.

Circle K Limited requested that the matter be considered as one offence.

In determining sentence the Magistrate asked the Council how many times Circle K Limited had appeared before the Court. The Council replied “On a number of occasions” which is totally misleading. One time in 2006.

In addition, it became apparent during the hearing that the Council filed a different matter in Court as an unpaid fine – despite the fact Circle K Limited had requested a hearing – forcing a lot of effort to try and sort this out. Still no reply to a Form 57 filed on 7 December.

[10] The facts of this matter, briefly stated, appear to be that on 16 October 2011,

18 October 2011, 31 October 2011 and 21 January 2012 the appellant’s motor vehicle, a Rover car registration No. JKINNZ, was parked either on Dovedale Avenue, Christchurch or Orchard Road, Christchurch in two cases displaying an expired registration licence label and in the other two cases displaying no registration licence label at all. A parking officer of the respondent noticed that this was the case on each occasion and the infringement notices in question were issued.

[11] It is unnecessary for me to describe the decision of the Justices of the Peace in detail and their reasoning. I can turn directly to the main and indeed fundamental point which Mr Kipping on behalf of the appellant has advanced in support of the appeal. This is a point he had also advanced before the Justices of the Peace. The essence of this is that these infringements on the four separate days noted above should, in reality, have been considered as one offence only. He contends this is because the notices issued for having no car registration or failing to display the label are in effect a single continuous contravention only.

[12] In the District Court this point was specifically argued by Mr Kipping and rejected by the Justices of the Peace.

[13] I see no objection to the approach taken in the District Court to that aspect. The infringement notices in question each relate to different events on different occasions. With respect to the fourth infringement notice, this occurred at a different street address.

[14] To suggest that these all constitute one continuous offence, and/or to request that they might be considered as such, particularly as they occurred for a period of time of over three months from October 2011 to January 2012, in my view is simply wrong.

[15] I reject this ground of defence advanced by the appellant. I consider that the

Justices’ decision on this aspect was correct.

[16] Next, before me, counsel for the respondent noted certain recent authorities with respect to infringement notices of this type, which she contended supported her argument that this appeal must be dismissed. For completeness I now address these.

[17] The first of these was Prescott v Auckland Transport.3 In this case like the present case, a vehicle was found on five separate occasions unlicensed, and with no evidence of inspection, or registration. Infringements notices were issued in respect of the offences on each occasion. The High Court affirmed that the owner was obliged to comply with all of the regulations which underpin the infringement offences when the charges have been proven.

[18] The next was Kearns v Wellington City Council4 which concerned an infringement offence for operating a vehicle without a current warrant of fitness and a licence not affixed in the prescribed manner. There, the defendant argued in the District Court that despite parking his vehicle on the street without displaying a current warrant of fitness or licence, the fines should be waived. The High Court dismissed the appeal and agreed with the District Court that the offence is one of strict liability, Mr Kearns (the defendant) had clearly committed the offence and should be fined accordingly.

[19] And a recent decision in Sayes v Auckland Transport5 confirmed the principle that paying outstanding licensing fees does not back date the licence to the time it

_{had expired. An earlier decision of Peters v Auckland Transport}6 _{also states that}

3 _{Prescott v Auckland Transport [2012] NZHC 2637.}

4 _{Kearns v Wellington City Council [2012] NZHC 1729.}

5 _{Sayes v Auckland Transport [2012] NZHC 3436.}

6 Peters v Auckland Transport [2012] NZHC 456.

payment of vehicle registration subsequently does not excuse the defendant from paying the original fine incurred for operating the vehicle with an expired licence label.

[20] Before me Mr Kipping, for the appellant, did not comment on or address any of these authorities. In my view they clearly confirm the earlier conclusion I have reached that each of the infringement notices issued related to a separate offence and the appellant’s ground of objection in this respect must be dismissed.

[21] Next, an issue arose here with respect to the appeal by the appellant against conviction after its guilty plea with respect to the first, second and third infringement notices, Notices 5205372, 5209067 and 5199393. It is clear from the authorities that the Court is only to allow appeals against conviction after a plea of guilty in exceptional circumstances. The overriding consideration is whether there has been a miscarriage of justice – R v Stretch.7

[22] Examples of situations where such an appeal could be entertained are where: (a) the plea is no plea at all;

(b) the plea has been entered under some obvious mistake, misunderstanding or misapprehension;

(c) the defendant may not have appreciated the nature of the charge or may not have intended to admit his/her guilt – Udy v Police;8

(d) there had been a prejudicial defect or irregularity in the proceedings;

(e) the plea of guilty was induced by a ruling that embodied a wrong decision on a question of law; and

7 _{R v Stretch [1982] 1 NZLR 225 (CA).}

8 Udy v Police [1964] NZLR 235.

(f) on the facts, the appellant could not in law have been convicted of the offence charged – Parlane v Police.9

[23] I am satisfied that all of this can be quickly disposed of here. Before me, the respondent submitted there had been no miscarriage of justice in this case as it was apparent from all the evidence before the Court that the appellant had clearly had reasonable opportunity to consider and discuss all matters before entering its guilty pleas. I agree. Before me Mr Kipping, for the appellant, was unable to place before the Court material or argument of any kind to support the view that exceptional circumstances existed here to allow an appeal against conviction for the first, second and third infringement notices following his clear guilty pleas before the District Court.

[24] Effectively, Mr Kipping’s arguments here were directed more towards sentencing. In this respect the third ground of appeal outlined in the appellant’s notice of appeal as I have mentioned above stated:

In determining sentence the Magistrate asked the Council how many times Circle K Limited had appeared before the Court. The Council replied “on a number of occasions” which is totally misleading. One time in 2006.

[25] Effectively, before me Mr Kipping argued that on the sentence issues, the Justices in the District Court were either biased against the appellant or misled in giving their decision.

[26] As to this, it is clear from s 21(9) of the Summary Proceedings Act 1957 that once a guilty plea is entered, the Court is required to impose a fine and court costs. The fine imposed here of $200 is prescribed under Schedule 6 of the Registration Regulations. The court costs awarded on each offence, as I understand it are standard court costs.

[27] So far as the guilty pleas are concerned, I am satisfied that the sentences imposed in each case were ordinary sentences for what where strict liability offences and the court costs ordered were appropriate. These arguments apply also to the

_{finding in the District Court that the fourth infringement notice, 5222976, was}

9 Parlane v Police HC Auckland 15 June 1995, Paterson J, A274/97.

proven. The prescribed fine of $200 which was imposed, in my view, is in order as is the court costs award for this offence.

[28] In conclusion I find that there is no merit in this appeal by the appellant either as to conviction or sentence. The legislation here imposes strict liability and this is reinforced by the case law I have outlined above.

[29] Accordingly, the present appeal is dismissed in its entirety.

[30] The respondent seeks costs against the appellant here in accordance with the scale in the Costs in Criminal Cases Regulations on the basis that it is said that this appeal has been brought without merit.

[31] Mr Kipping, on behalf of the appellant, chose to make no submissions to me with respect to this aspect.

[32] There is no restriction on the award of costs against a defendant in a case such as the present. The principle issues which the appellant endeavoured to raise here were raised unsuccessfully in the District Court. I have found that this appeal is entirely without merit. In the circumstances I consider that an award of costs is appropriate.

[33] There will be costs in favour of the respondent in the sum of $226, as specified in Sub-Part C of Part 1 of Schedule 1 of the Costs in Criminal Cases Regulations 1987.

...................................................

D Gendall J

Solicitors:

Goodman Tavendale Reid, Christchurch

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