D v Police HC Auckland CRI-2009-404-319 [2009] NZHC 2193 (7 December 2009)

Last Updated: 12 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-404-319}

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 December 2009

Appearances: Ms H Kim for Appellant

Ms K Wendt for Respondent

Judgment: 7 December 2009

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{Mr S Tait, Auckland}

D V NEW ZEALAND POLICE HC AK CRI-2009-404-319 7 December 2009

[1] Ms D pleaded guilty in the District Court to a charge of operating a motor vehicle recklessly. She had originally also been charged with failing to stop when required to do so by an enforcement officer, but the police elected to withdraw that charge and no penalty was imposed in relation to it.

[2] On the charge to which she pleaded guilty, His Honour Judge Blackie sentenced Ms D to 80 hours community work and disqualified her from holding or obtaining a motor driver’s licence for a period of two years.

[3] Ms D now appeals to this Court against one aspect of her sentence. She does not challenge the sentence of community work. She contends, however, that in imposing a period of disqualification of two years the Judge imposed a sentence that was manifestly excessive.

[4] In order to understand the issues that the appeal raises it is necessary to have regard to the facts that underlay the charge to which Ms D pleaded guilty. These were contained in the summary of facts that was read to the Court after Ms D entered her guilty plea.

The facts

[5] The summary reveals that on 7 August 2009 Ms D was the driver of a Subaru motor vehicle that police observed driving north on David Avenue, Manurewa. At that time she did not hold a driver’s licence. The police noted that the make of her vehicle did not match the registration plates affixed to it. In addition, the identifying numbers on the vehicle had been rendered unreadable.

[6] The attention of the police was also captured by the speed and manner of Ms D ’s driving. This prompted the police officers to activate their blue and red flashing lights and to operate the siren on the police vehicle. Instead of stopping, however, Ms D increased her speed to about approximately 100 kilometres per hour. She did so in circumstances where the maximum posted speed limit for the area in which she was travelling was 50 kilometres per hour.

[7] Ms D continued to drive along various roads in the Manurewa area consistently driving at speeds in excess of 100 kilometres per hour. As she travelled east along Hill Road, she approached the intersection with the south bound off-ramp to the Southern Motorway. This intersection is controlled by traffic lights. As she went through the intersection the lights in her direction were red. Two vehicles that had been exiting the motorway using the off-ramp were obliged to brake in order to avoid colliding with Ms D ’s vehicle.

[8] Ms D then continued along Hill Road at a constant speed of more than

50 kilometres per hour and sometimes at speeds exceeding 100 kilometres per hour. From time to time she crossed onto the wrong side of the road in order to overtake slower vehicles. Then, whilst travelling north on Mill Road, Ms D crossed over the double yellow lines in the centre of the road to take over a slower vehicle on a blind right hand corner.

[9] The dangerous nature of Ms D ’s speed and driving ultimately caused the police to abandon their pursuit. Later, however, the police saw Ms D ’s vehicle driving down the driveway of an address in Killeen Place, Otara. They immediately approached her and she admitted what she had been doing. In explanation she said that she had driven in the manner that the police observed because she did not hold a licence and she had passengers in her car.

The Judge’s decision

[10] The Judge clearly took a dim view of Ms D ’s actions. He pointed out that, at any time during the police pursuit, somebody could have been killed. He noted that Ms D had placed other peoples’ lives at risk and that the matter was made more serious by the fact that she did not even hold a motor driver’s licence so she should not have been behind the wheel of the car in the first place. These factors led the Judge to sentence her to 80 hours community work and disqualify her from driving for two years.

[11] Counsel for Ms D referred me to several authorities in which this Court has considered the imposition of periods of disqualification in circumstances such as the present. Perhaps the case with the closest similarity in factual terms is Hunter v Police AK HC 17 February 2009 Lang J. In that case the appellant had been charged with reckless driving and failing to stop after a police chase that has considerable similarities to the present. Counsel referred me to a large number of authorities in which different periods of disqualification had been imposed for driving activities similar to those that occurred in the present case. These showed that the period of disqualification imposed on the offender would generally be between nine and 18 months. This is to be contrasted with the statutory minimum of six months.

[12] The appellant in Hunter had been sentenced to 350 hours community work and disqualified from driving for a period of three years. On appeal, he did not challenge the sentence of community work but submitted that the period of disqualification was manifestly excessive. The Crown accepted that that was the case. I allowed the appeal and substituted a period of disqualification of 14 months.

[13] Counsel for the Crown in the present case acknowledges that the term of disqualification can be considered severe and, in fact, that it might have been over the line in terms of the range that the Judge was entitled to impose. She submitted, however, that several factors distinguish the facts of this case from those in Hunter and mean that a significant period of disqualification should be imposed. Counsel pointed out that Ms D did not hold a licence when it appears that Mr Hunter did. She also pointed out that Ms D was driving with passengers in the vehicle and that she thereby exposed other people to risk. Mr Hunter, on the other hand, was riding a motorcycle and did not thereby expose others travelling with him to any degree of risk.

[14] I have reached the view, essentially for the same reasons as I reached my decision in Hunter, that the period of disqualification was too great in the present case. I consider, however, that there are factors present in this case that warrant a term of disqualification slightly greater than that imposed in Hunter. These are the factors that the Crown has identified.

[15] Ms D should not have been driving at all on the day in question. She had no right to drive until such time as she obtained a licence. The fact that she had passengers in the vehicle is also a significant aggravating factor. She exposed all the occupants of her vehicle to the possibility of bodily injury, and even death, given the manner in which she drove when avoiding the police.

[16] These factors persuade me that the appropriate term of disqualification is one of 16 months. I therefore quash the disqualification imposed in the District Court and substitute a period of disqualification of 16 months.

Result

[17] The appeal is allowed accordingly.

Lang J