Hillind v Police HC Whangarei CRI 2011-448-53 [2011] NZHC 1634 (27 October 2011)

Last Updated: 23 November 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI 2011-448-53}

BETWEEN CHRISTOPHER HILLIND Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 October 2011

Counsel: No appearance by, or on behalf of Appellant

M Jarman-Taylor for Respondent

Judgment: 27 October 2011

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 146, Whangarei

Copy to:

_{Appellant in person}

HILLIND V NEW ZEALAND POLICE HC WHA CRI 2011-448-53 27 October 2011

The appeal

[1] Mr Hillind appeals against conviction and sentence on a charge of careless use of a motor vehicle causing injury. The conviction was entered following a defended hearing in the District Court at Dargaville on 25 May 2011, before Judge Davis. With Mr Hilland’s agreement, he was sentenced by Judge Gittos, in the District Court at North Shore, in conjunction with sentencing on unrelated charges to which he had pleaded guilty.

The conviction appeal

[2] After hearing evidence, Judge Davis made relevant findings of fact. The incident arose out of a collision between a motor-cycle that Mr Hillind was riding and on which Ms Casey was his pillion passenger. The motor-cycle struck a rock in the road, causing both to fall. Mr Hillind suffered a broken ankle and other injuries while Ms Casey received a fracture to one of her vertebrae and spinal compression.

[3] Judge Davis found that it was not in dispute that during the course of their journey towards Opononi, Mr Hillind negotiated some winding corners and as he came out of those corners struck the rock that caused the motor cycle to go into a ditch on the side of the road eventually strike a culvert.

[4] There was no evidence to suggest that Mr Hillind was driving at an excessive speed. It was not raining at the time of the incident. Other weather conditions were unlikely to have affected the quality of the rider’s control.

[5] There was a dispute between Mr Hillind and Ms Casey over whether Mr Hillind had shortly before the accident leant down to adjust something on the side of the motor-cycle. Although Ms Casey may have been wrong on that score, the Judge was satisfied that the evidence that Mr Hillind looked away from the road at a time proximate to the accident was “generally unchallenged”.

[6] In essence, the view taken by the Judge was that the rock was there to be seen and something occurred which meant that Mr Hillind failed to see it in time to adjust to avoid.

[7] On that view of the evidence, I agree with Judge Davis that the standard of care required from a reasonable and prudent driver was not attained. It was necessary for Mr Hillind to watch the road in case any impediments to the vehicle’s progress were present. Although his failure was momentary, the requisite lack of care and attention was present. Once the Judge was satisfied that the carelessness was present, it was clear that the injury was caused by that carelessness.

[8] In those circumstances, the appeal against conviction must be dismissed.

The sentence appeal

[9] In relation to the particular charge with which Judge Davis dealt, Mr Hillind was sentenced to 100 hours’ community work and disqualified from holding or obtaining a driver licence for 12 months and one day, commencing on 30 August

2011. The 100 hours’ community work was concurrent with that imposed on a driving while disqualified charge. Reparation of $240 for medical expenses for the injury caused to Ms Casey was also awarded.

[10] In the circumstances, it cannot be said that that concurrent sentence of community work, coupled with the reparation and term of the disqualification was manifestly excessive.

[11] The appeal against sentence must also fail.

Mr Hillind’s non-appearance

[12] Mr Hillind’s appeal was set down for hearing at 11.45am today. He was given notice of the hearing by the Registrar. Mr Hillind was not present when the appeal was called, some 15 minutes after the appointed time.

[13] In those circumstances, having received written submissions from Ms Jarman-Taylor, for the Police, I elected to deal with the merits of the appeal rather than simply to dismiss for want of prosecution.

Result

[14] For the reasons given, the appeals against both conviction and sentence are dismissed.

P R Heath J