|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI
2008-404-268
BETWEEN AARON JACOB HOLMES
Appellant
AND NEW ZEALAND POLICE
Respondent
Hearing:
23 February 2009
Appearances: J J Maddox for the Appellant
T A Simmonds for the Respondent
Judgment:
23 February 2009
ORAL JUDGMENT OF PRIESTLEY J
(Appeal against conviction and sentence)
Counsel:
J J Maddox, Barrister, P O Box 11342, Ellerslie, Auckland 1542. Email james.maddox@xtra.co.nz
T A Simmonds, Barrister,
P O Box 3815, Shortland Stret, Aucklandd 1140.
Email: todd@toddsimmonds.co.nz
AARON JACOB HOLMES V NEW ZEALAND POLICE HC AK CRI
2008-404-268 23 February 2009
The Appeal
[1] The appellant was charged in the Auckland District Court with an offence
under
s 39(1)(a) of the Land Transport Act 1998, being aggravated careless driving
causing injury. The charge related to an unfortunate
accident which occurred at
Owairaka in August 2007. The accident occasioned considerable publicity at the
time.
[2] After a
defended hearing, which took place in the Auckland District Court
before Judge I A McHardy, the appellant was convicted. The Judge
entered the
conviction in his decision delivered on 24 June 2008.
[3] The appellant was subsequently sentenced (4 August 2008)
to a
disqualification period, so far as his driver's licence was concerned, of 12 months
and one day. A reparation sentence
was also imposed in terms of which the
appellant was ordered to pay $3,000 by way of emotional reparation to the victim.
An application
by the Judge for a discharge under s 106 of the Sentencing Act 2002
was dismissed.
[4] This appeal challenges both the conviction
and the sentence. Although
accepting that the driving in question at the relevant time was careless it was the
appellant's
overall submission that he should not have been prosecuted under s 39
but should instead have faced the lesser charge of careless
driving causing injury.
As to the sentence imposed, the appellant's submission was that he should indeed
have been discharged under
s 106. There was no opposition, however, to a condition
attaching to such a discharge that the $3,000 reparation figure could be
paid to the
victim. Nor was there any challenge, an important concession, to the disqualification
period imposed.
Background
[5] At the relevant time (3 August 2007) the appellant was, and still is, a serving
police officer. He and another officer that
day were setting up a check point in the
Mt Roskill area. The purpose of the check point, as I understand it, was to stop
vehicles
and ascertain that their registrations, warrants of fitness, and other safety
aspects of the vehicle were in order. Whilst the check
point was being mounted the
appellant observed a van pull into a driveway at some indeterminate distance from
the check point, reverse
out, and depart at some speed in the opposite direction to
which it had been travelling.
[6] This excited the appellant's attention.
He got into an unmarked patrol
vehicle. There was no other person in the vehicle. He activated the vehicle's
warning lights and
embarked on a pursuit. He lost sight of the vehicle. It re-
emerged but he lost sight of it again. As the vehicle was approaching
the dividing
intersection of Owairaka Avenue and Richardson Road the appellant failed to
observe two motor vehicles stopped at a
pedestrian crossing adjacent to Owairaka
District School. He collided with the rear of one of these two vehicles. The force of
the
impact slewed the appellant's vehicle across to the right of the road. It hit a
street-light constructed out of a fairly soft metal
which collapsed on to the footpath
inflicting damage on a teenage boy who, it would seem, had just crossed the road
and was on the footpath.
[7] The victim was seriously
injured. He was in hospital for a lengthy period of
time. He sustained neurological damage, the full extent of which had not at the
time
of sentencing been assessed.
[8] No more needs to be said about the circumstances of the appellant's driving
other than
perhaps there was evidence before the Judge from a prosecution expert
that the minimum impact speed was 57 kph. There was no apparent
evidence of hard
braking. It goes without saying that the maximum speed in this urban area was 50
kph.
Relevant Law
[9]
The circumstances surrounding the accident give rise to a number of issues.
Of particular relevance are the components of the charge
under s 39 and possible
speed limit exemptions which might flow from the fact that the appellant, at the time,
was driving during
the course of his duties.
[10] I set out for convenience, the relevant provisions.
39 Aggravated careless use
of vehicle causing injury or death
(1) A person commits an indictable offence if the person causes
bodily injury to or the death of a person by carelessly using a motor
vehicle while--
(a) Driving the motor vehicle at a speed exceeding the
applicable speed limit; or
(b) Driving the motor vehicle in such a manner as to
commit an offence against the
regulations or the rules
concerning the manner in which a driver may overtake
another
vehicle or concerning the part of the road on which a
driver may drive his or her motor vehicle.
(2) If a person is convicted of an offence against subsection (1) -
(a) The maximum
penalty is imprisonment for a term
not exceeding 3 years or a fine not exceeding $10,000; and
(b) The court must order the person to be disqualified
from holding or obtaining a driver
licence for 1 year or
more.
(3) The imposition of a mandatory disqualification under
this
section is subject to section 81.
Here the alleged offence was careless driving causing bodily injury
to the victim.
The "aggravating" factor is that specified in s 39(1)(a). Prima facie the aggravating
component was present, there
being no dispute before the Judge that the impact
speed was in the vicinity of the figure I have mentioned, (supra [8]) and indeed
that
at previous stages during his pursuit of the van the appellant had driven at higher
speeds.
[11] The clearly stated components
of the s 39(1) offences have been rehearsed by
Gendall J in Han v District Court at Manukau (HC AK CIV 2004-404-2710, 3
November
2004). They are the requirement of proved carelessness; the requirement
to prove a causal connection with the injury; and the requirement
to prove the
driving was aggravated by, in this case, exceeding the relevant speed limit.
[12] Before both this Court on appeal
and the District Court at trial the appellant
relied upon r 5.1 of the Land Transport (Road User) Rule 2004. Rule 5.1, in a
general
way, refers to an obligation on the part of drivers not to exceed relevant
speed limits. Of particular importance here is r 5.1(3)(a)
which states:
5.1 Drivers must not exceed speed limits
...
(3) A driver who drives
at a speed exceeding the applicable
speed limit is not in breach of subclause (1) if the driver proves that,
at the time the vehicle was being driven,--
(a) the vehicle was being used by an enforcement
officer engaged on urgent duty and compliance with the
speed limit would be likely to prevent the execution of the
officer's duty; or
...
[13] Nowhere is "urgent duty" defined in the Rules.
[14] Mr Maddox, in both
Courts, submitted that the appellant was an enforcement
officer (there being no dispute about this) and that he was engaged at the
time on
"urgent duty" in respect of which compliance with the speed limit would have been
likely to prevent the execution of that
duty.
[15] The Rules have attached to them a first schedule. That schedule sets out
(paragraph one) the objective of the 2004
Rule. Of particular relevance here is
objective 1(2) which states:
(2) The rule covers the requirements road users must
adhere to when
using the road network that are broadly encompassed by the term "traffic
law". It does not cover driver
and vehicle licensing, roadworthiness, vehicle
standards, licence carriage, driver hours or logbooks, or major offences
such as drink driving. These matters are addressed in the Transport Act
1962, the Land Transport Act 1998, or in other
Land Transport Rules.
[Emphasis added]
[16] It is clear to
me that r 5.1 does not in itself apply (because the delegated
legislation specifically states it) to a "major offence". The example
given in the
schedule of such a major offence is drink driving. I have no difficulty at all in
regarding an offence under s 39 as
a "major offence". Drink driving by itself, for
instance, carries a minimum disqualification of six months and a maximum term of
three months imprisonment. An offence under s 39 by contrast carries a maximum
available penalty of three years imprisonment and
a minimum period of
disqualification of 12 months.
[17] Of some relevance to the application of r 5.1 to police officers is the
Police
Driving Policy; Urgent Duty Driving (annex 2) which was produced to both Courts.
This document of course has no legal effect.
It cannot by any stretch of the
imagination be regarded as an extension of or indeed a suspension of s 39 of the
2004 Rule
or other relevant provisions of the Land Transport Act. At best it can
properly be regarded as a set of internal instructions to
guide police officers to whom
r 5.1 might apply. The document correctly points out (paragraph two) that the
driving conduct of police
when on urgent duty driving imposes risks to the safety of
both staff and the public, and is for this reason subject to considerable
public
scrutiny. In block letters the document states:
No duty is so urgent that it requires the public or police to be placed
at
unjustified risk.
[18] The guidelines suggest an intersection should not be crossed at a speed
exceeding 20 kph. There
are various other duties imposed on drivers of vehicles
engaged in urgent duty driving. These include carrying out an assessment
of the
risk, activating warning devices, informing communications centres that a pursuit
has commenced; weighing the loss of sustained
contact against continuation of the
pursuit; considering other tactical options, and matters of that sort.
[19] Setting the police
document to one side it is apparent that, so far as the
conviction appeal is concerned, the central issue must be whether r 5.1 provides
some form of defence to the s 39 charge. To this issue I shall return.
District Court Decisions
[20] The careful 24 June 2008
decision of the Judge sets out the background facts.
The Judge referred to the same statutory provisions and materials to which I
have
referred. He went through the facts. There is no suggestion here of any factual
error. The Judge pointed out [28] that the lack
of care, which he was satisfied was
present, had been exacerbated by the speed at which the appellant was driving at the
time. The
Judge made some reference to the dictionary definition of "pursuit".
(There is no mention of "pursuit" in either s 39 or r 5.1). The word has come into
play solely because of its
use in the Police Driving Policy document which regards
pursuits as being part and parcel of urgent duty driving.
[21] The Judge
referred to a similar s 39 case decided in the District Court by
Judge Thorburn, R v McInnes [2001] DCR 1118.
[22] Judge McHardy's findings were:
· The incident amounted to more than a momentary lapse of concentration.
· Rule 5.1 did not apply to the present case.
· Rule 5.1 did not relate to substantive offences under the Act.
[23] The Judge then went on to say that he did not consider the appellant was in
pursuit at the time of the incident in terms
of the Police Driving Policy document.
His reasoning ([41]) was that the appellant was attempting to find a vehicle which he
considered
had been acting suspiciously as it approached the check point. There was
no evidence, said the Judge, that the driver of that vehicle
had committed any
particular traffic or criminal offence for which he needed to be apprehended.
[24] That obiter comment of the
Judge, with respect, in my view goes too far. I do
not rule out that there may be legitimate urgent duty driving to which r 5.1(3)(a)
extends, or indeed, in terms of a police instruction, a legitimate pursuit of a vehicle
which may be of interest to the police without
there being, at that stage, any evidence
of the driver of the vehicle having committed a particular offence. Any suggestion
to
the contrary would, amongst other things, cause obvious difficulties with
designated pursuit vehicles which surround police drink/drive
road blocks, the task
of which vehicles are, as I understand it, is to follow vehicles whose drivers attempt,
at the last moment,
to evade the inevitable breathalyser scrutiny.
[25] The Judge also suggested ([42]) that the appellant was not engaged in a
pursuit
because he had not advised the Communications Centre. Again I do not
necessarily agree. It seems to me that the Judge has been deflected
somewhat from
his primary scrutiny of s 39 and r 5.1 by the police document, which as I have said
has no legal force.
[26] In
any event I see these portions of the Judge's decision as being something
in the nature of a "back stop argument" in case his initial,
and in my view correct,
finding that r 5.1 had no application were to be wrong.
[27] As the Judge pertinently pointed out, the
primary duty of a driver must be to
ensure a vehicle is being driven safely. To be travelling at the speeds the appellant
was travelling,
particularly at that time of the day and, in particular, near a school,
left the Judge in no doubt that the behaviour of the appellant
was "beyond what a
reasonable prudent driver would engage in" ([45]). The Judge's conclusion was that
the appellant's actions were
careless and that his carelessness was aggravated by
speed. He accordingly found the charge to be proved.
[28] I deal very briefly
with the Judge's sentencing which followed on 4 August
2008. The Judge fairly weighed all the relevant factors. It is important to
note that
s 106 of the Sentencing Act 2002 confers on sentencing judges a broad discretion
(unless there is some statutory impediment)
to discharge an offender without
conviction. Such a discharge may be on terms (s 106(3)). The discretion is not an
unfettered discretion.
It must be exercised judicially.
[29] Of particular relevance is s 107 which provides:
107 Guidance for discharge
without conviction
The court must not discharge an offender without conviction unless the court
is satisfied that
the direct and indirect consequences of a conviction would
be out of all proportion to the gravity of the offence.
[30]
Weighing up all the factors here the Judge reached the view that the
consequences of a conviction would not be out of all proportion
to the gravity of the
offence.
[31] The Judge, amongst other things, looked at the impact of the accident on the
14 year old
victim and his immediate family. He referred to the appellant's record as
a policeman, considering two certificates of commendation
the appellant had
received. Dealing with the pursuit the Judge was of the view that the "situation was
far from neccessitous". He
also addressed the stigma of a conviction which could
impact on the appellant's career as a police officer. He regarded the matters which
had been
put to him at that stage as being entirely speculative. He opined (and
correctly I hope) that it was "highly doubtful" whether the
conviction would have
any impact on the appellant's career as a police officer. He also opined that he
would be "surprised" if the
appellant was the type of person the police were looking
to dismiss in the light of his good record.
Discussion
[32] Mr Maddox
advanced a number of submissions. Mr Maddox has, in the
circumstances, done the best job possible and taken every point on the appellant's
behalf which can properly be taken. Mr Maddox's submissions reduced to their
central core is this. The appellant was indeed careless.
The circumstances of the
accident make that abundantly clear. However, he submits, there can be no dispute
that the appellant was
engaged in urgent duty and was pursuing a driver who had not
only appeared to evade a check point but who had departed at some speed.
The
speed of the vehicle and the circumstances of its departure more than justified a
pursuit. Such a pursuit fell well inside a
police officer being engaged on an "urgent
duty". Thus r 5.1(3)(a) was applicable. Because the permission stipulated in that
rule
applied to the appellant, it inevitably followed, submitted Mr Maddox, that the
prosecution was unable to prove the essential s 39(1)(a)
ingredient of exceeding the
applicable speed limit. Yes, the appellant was exceeding the speed limit, but he was
doing so with the
lawful justification created by r 5.1.
[33] So far as the sentence appeal is concerned Mr Maddox submitted that he and
the appellant
were in something of a cleft stick. The appellant was a member of the
same organisation (the police) which was the prosecutor.
Although prior to
sentencing the appellant had sought a formal letter from the police as to whether or
not he was at
risk of dismissal, or confirming his career was not in jeopardy, no such
letter had been provided. Because this possible threat hung
over the appellant both
then and now as a sword of Damocles, there was an element of risk. Weighing all
matters up dismissal from
the police force, if causally connected with the offending,
would be out of all proportion as a consequence to the offence involved.
Thus,
submitted counsel, there should have been a s 106 discharge.
[34] Mr Simmonds rejected both these submissions. In his submission
it was very
clear that r 5.1 was not designed to provide a defence in circumstances such as this.
First he pointed me to the objective
of the Rule to which I have referred (supra [15])
set out in the schedule. Section 39 created a stand alone offence. If there was
an
injury caused by careless driving, aggravated by exceeding the speed limit, then all
the ingredients of s 39 were present and
had been proved.
[35] In that regard counsel referred me to the judgment of Judge Thorburn to
which I have referred. The Judge
stated (at 1121):
The risks of an emergency services driver (or any professional driver for that
matter) falling short
of an acceptable standard of prudent driving is likely to
be greater than that for the ordinary citizen because such a driver
must still
maintain safety for other road users whilst being permitted to drive at speed.
(See Bateman v Police (High
Court, Auckland AP169/27, 25 August 1997,
Cartwright J). Being permitted to speed does not marginalise the duty to
drive safely and the tension that has been submitted upon arises when that
duty is balanced against the other duty that society
expects, that the driver
will get to an emergency quickly.
Judge Thorburn then went on to say (at 1124):
If there
is any suggestion of an attitude creeping in that an emergency
service driver may rely upon an assumption that because he
or she is driving
a marked vehicle which might have a siren and/or lights, the real duty or
obligation is upon other road users to preserve safety
then that would be
unacceptable. It is the purpose of the Court from time to time to make a
declaration as a warning
in respect to a particular matter and it is in the very
nature of the law to hammer out on the anvils of the Court the standards
that
the community can expect. So, much is expected of emergency service
drivers who have the permissive licence to
exceed the ordinary speed limits
reflected in a greater degree of responsibility to ensure that as speed
increases
so too does prudence.
[36] With respect I agree with this policy articulation of the District Court.
Although the authority is
not binding on me, I endorse the thrust of it.
[37] On the issue of the sentence appeal Mr Simmonds submitted that in the
normal
course of police administration any difficulties to the appellant's career
which might flow from the conviction would be a matter
for Police Headquarters in
Wellington. It was not a matter for the officer in charge of the prosecution. I accept
that there is nothing
untoward so far as this division of responsibility on the part of
the NZ Police is concerned.
[38] Certainly the requirement
to establish s 107 criteria would have rested at all
stages with the appellant. I see no reason why the police at that stage of sentencing
were obliged to put before the Court any information about the impact of the
conviction on the appellant's career. That said, however,
I do note that in a case
before me which had a high public interest component, Vincent and Howard v New
Zealand Police (HC TIM CRI
2006-476-004, 31 August 2006), the relevant area
commander had sworn an affidavit dealing with the down-stream consequences of
convictions
on two police officers who were the appellants in that particular case.
Decision
[39] I do not consider, in similar vein to
the Judge, that r 5.1(3)(a) provides a
defence in this particular case to the s 39 charge. There must inevitably be a risk that
any
driver to whom the r 5.1(3)(a) exemption applies, if he drives carelessly, will be
at risk of prosecution under s 39 if death or
injury ensues and the aggravating factor
of speed is present.
[40] As is clear from the Police Driving Policy document, and as
the Judge
himself observed, the greater the speed the greater the risk. Driving at above the
permitted speed limit, if anything,
increases the duty of care imposed on a driver if
only because the risk is heightened.
[41] Not only are these policy statements
obvious but so too, it seems to me, the
first schedule to the rule sets out the policy underlying it and makes it abundantly
clear
that the rule is not intended to apply to a designated serious offence of this
type. Additionally the r 5.1(3)(a) exemption provides
a defence to the breach of
exceeding the speed limit. It does not provide a defence to other offences.
[42] For these reasons
therefore the appeal against conviction is dismissed.
[43] I have some sympathy with the appellant's position so far as the imposed
sentence is concerned. The indisputable fact, however, is that there were no
compelling reasons advanced to the Judge as to why
ss 106 and 107 should come
into play. A court, when considering a s 106 discharge, must weigh a number of
factors. I do not intend
during the course of this oral decision to set out exhaustively
what those factors are. However, the discretion must be informed
by a number of
factors including the gravity of the offending, the culpability of the offender, relevant
Sentencing Act purposes
and principles, likely consequences (which will include
career prospects, immigration consequences) and matters of that type. The
core
requirement is that before contemplating a favourable exercise of the s 106 discretion
the court must be satisfied that the
consequences, both direct and indirect of the
conviction, would be out of all proportion to the gravity of the offence.
[44] This was a serious charge. There were serious
consequences to the victim.
There was, it seemed, a lapse in concentration and arguably a lapse in judgment by
the appellant at relevant
times. Like Judge McHardy I am not satisfied that the s 107
threshold has been crossed.
[45] I express some concern about the
slightly quaint disqualification period
imposed of 12 months and one day. As best as my researches can reveal (and
counsel gave me
some assistance in this area) the addition of one day's
disqualification was to ensure that, before he could reclaim his driver's
licence, the
appellant would have to submit to a driving test. With respect to the Judge, although
that requirement may frequently
and justifiably be imposed with various categories
of drivers, I would for my part see little point in imposing it on a trained police
driver.
[46] I note that no such additional day's disqualification was imposed in the
McInnes case. However the point was
not raised in the formal notice of appeal.
Clearly to quash a sentence for the sole purpose of dispensing with the one day's
disqualification
would be tinkering on a spectacular scale. Why the Judge imposed
the day is unclear. I for my part would not have. However, I do
not intend to allow
the appeal on that aspect alone.
Conclusion
[47] Thus both appeals, for the reasons I have stated, are
dismissed.
.............................................
Priestley J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2009/192.html