Maneff v Police HC Wellington CRI-2011-485-56 [2011] NZHC 1936 (8 September 2011)

Last Updated: 4 February 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2011-485-56}

DARYL WILLIAM MANEFF

Appellant

v

NZ POLICE

Respondent

Hearing: 6 September 2011

Counsel: S A McClean for Appellant

P Paino for the Respondent

Judgment: 8 September 2011

Reasons: 8 September 2011

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Maneff was fined $3,600, ordered to pay court costs totalling $1,196.01 and disqualified from driving for a period of nine months for nine convictions for driving in breach of his learner licence conditions. Mr Maneff appealed against these orders. I have allowed his appeal. I have quashed the District Court’s orders and replaced the District Court’s orders with a fine of $400, an order to pay court costs of $132.89 and a six month period of disqualification. I now set out my

_reasons.

MANEFF v NZ POLICE HC WN CRI-2011-485-56 8 September 2011

Background

[2] Mr Maneff, as a holder of a learners licence, is required to comply with certain conditions. Those conditions include a requirement to display on his car an “L” plate and a requirement that he be accompanied by a licensed driver who is in charge of the car and is seated in the front passenger of the car.1 The nine convictions relate to five occasions between September 2010 and January 2011 on which Mr Maneff was apprehended driving in breach of the conditions of his learners licence.

[3] On the first occasion, on 23 September 2010, he was apprehended for driving unaccompanied by a licensed driver. On 24 September 2010, 14 October 2010,

1 January 2011 and 15 January 2011 he was apprehended driving unaccompanied by a licensed driver and without displaying an “L” plate. There is a conviction for each particular breach.

[4] Mr Maneff pleaded guilty and was sentenced in the District Court on

16 March 2011. Both counsel on the appeal were of the view that a fine of $400 and court costs of $132.89 were imposed on each conviction, so that the total fine was

$3,600 and the total court costs order was $1,196.01. Whether or not that was the District Court Judge’s intention, that does appear to be the effect of his sentencing notes which are as follows:

I am going to impose a monetary penalty on you and a disqualification. On all the charges up to 14 October of last year on each of them you will be fined $400 together with court costs of $132.89. On each charge you will be disqualified from driving for six months.

On the charges relating to this year, there is four of them you will be fined

$400 on each of them together with court costs of $132.89 and you will be disqualified from driving for nine months.

1. The precise requirements are set out in Regulation 16 of the Land Transport (Driver Licensing) Rule 1999. The accompanying licensed driver must have held, for at least two years, a full licence of a class that authorises that person to drive that vehicle. If there is no front passenger seat available the accompanying licensed driver must be seated as close as is practicable to the driver.

[5] Because the Judge did not give a start date for the two disqualification periods they commence on the day the order was made with the effect that the period of disqualification is determined by the longer period (here nine months).2

Disqualification order

[6] Counsel for Mr Maneff submits that there was no jurisdiction to impose any period of disqualification. This is because the power to order disqualification arose if “the offence relates to road safety.”3 He submits that there was nothing about Mr Maneff ’s driving in and of itself that went to a road safety issue. He submits that failing to display an “L” plate and driving unaccompanied are mere breaches of licensing regulations for which the penalty is a fine and that there needs to be something additional that goes to road safety for disqualification to be ordered. He relies on Anticich v Police4 as support for his submission.

[7] I consider that the two kinds of breaches for which Mr Maneff was convicted are offences that relate to road safety.5 A person is able to obtain a learner’s licence if they are at least 16 years old and have passed a road rules theory test.6 There is no requirement to sit a practical driving test. The rationale for the “L” plate is said to be:7

First, it will assist enforcement officers in identifying learner drivers. Secondly, other drivers will also be able to identify learner drivers and give them more room and patience. Thirdly, the requirement to fit the “L” plate to the vehicle before driving is intended to serve as a reminder to the learner driver of his or her status and of the need to drive carefully.

[8] The second and third of those reasons go directly to road safety.

[9] As to the accompanying driver requirement, as was said in Anderson v

_Police,8 _{the “qualified driver’s task is to supervise a learner whose practical skills}

2 _{Section 85(1) of the Land Transport Act 1988.}

3. Section 80 of the Land Transport Act 1988. Section 31(1)(b) of the Land Transport Act, which creates the offence in respect of which Mr Maneff was charged, provides only for a maximum

_{penalty of a fine not exceeding $1,000.}

4 _{Anticich v Police HC Christchurch CRI-2007-409-000157, 20 September 2007.}

5 _{As discussed in Husband v Napier City Council [1979] 1 NZLR 317 (CA).}

6 _{Regulation 15 Land Transport (Driver Licensing) Rule 1999.}

7 _{Brookers Law of Transportation (online looseleaf ed, Brookers) at DL 16.01.}

8 Anderson v Police HC Wellington CRI 2009-435-7, 24 November 2009 at [7].

have not been tested, and so ensure that the vehicle is operated safely and lawfully.” That task is one directed to road safety and the failure to comply with the requirement is accordingly an offence that relates to road safety.9

[10] The decision in Anticich v Police does not stand for a contrary view. In that case a driver was apprehended driving at a speed of 162 km per hour. The police officer who apprehended the driver immediately suspended the driver from driving for a period of 28 days. On the prosecution for driving in excess of the speed limit the Justices of the Peace imposed a fine and disqualified the driver for a period of two months noting that the road side suspension had been taken into account. On appeal to the High Court the driver contended that the two months’ disqualification imposed by the Justices of the Peace was excessive and that the bare fact of excessive speed did not establish a road safety issue. Counsel for the respondent contended that the speed was such that road safety was necessarily at stake. The Court quashed the disqualification order because of the absence of information which would justify “the additional two month disqualification period beyond the

period of [the road side] suspension.”10 The disqualification order was therefore not

quashed because the offence did not relate to road safety but because there had already been a road side suspension.

Period of disqualification

[11] Counsel for Mr Maneff next submits that the period of disqualification was manifestly excessive. He contrasts this with the usual six months’ disqualification order for a first offender drink driver or for careless driving.

[12] The respondent submits that the period of disqualification was stern but within the available range. The respondent refers to Mr Maneff having convictions

_{for similar offending in 2008.}11 _{She also refers to the summary of facts which states}

9. See also Van Dorp v Police HC Christchurch CRI 2009-409-000177, 4 February 2010 where the Court held that failing to display an “L” plate and driving without an accompanied licensed driver were offences relating to road safety for which a Judge had the power to order disqualification without it being necessary to show any particular safety aspect in the manner of driving.

10 _{At [9].}

11 The offences are for failing to display an “L” plate and driving unaccompanied (7 February 2008); driving while licence suspended (15 July 2008 and 29 August 2008) and driving while disqualified (29 December 2008).

that Mr Maneff has 20 breaches noted for being a learner driver unaccompanied and

17 breaches noted for failing to display an “L” plate.

[13] I consider that the nine months’ disqualification period was manifestly excessive. Mr Maneff ’s previous offending was in 2008. The noted breaches and other offending are not dissimilar to the position in Anderson, Van Dorp and Cuff v Police12 where lesser disqualification orders were made. The comparisons made by Mr Maneff’s counsel as to disqualification orders for other driving offences are helpful. I consider that a six month period of disqualification is stern but appropriate.13

Fine

[14] The respondent accepts that the total fines and court costs imposed were manifestly excessive and failed to have regard to Mr Maneff’s financial capacity. Mr Maneff is unemployed and receives a benefit. The respondent submits that a total fine of $400 would be appropriate together with one order for court costs of

$132.89.

[15] Mr Maneff ’s counsel submits that he will have difficulty in paying any fine and that the real penalty for him is the disqualification. He urges that no fine or court costs be ordered or at the very least they should be at the lowest level.

[16] The repetitive nature of Mr Maneff ’s breaches show a flagrant disregard for the requirements of his learner licence. In my view it requires that a financial penalty be imposed in addition to the disqualification. Having regard to Mr Maneff ’s financial position, the totality of the offending and that the period of disqualification is itself a significant penalty, I accept the respondent’s submission that the appropriate total fine is $400 and that there should be one order for court

_{costs of $132.89.}

12 _{Cuff v Police HC Wanganui, CRI 2009-483-48, 30 March 2010.}

13 Counsel for Mr Maneff did not seek a lesser period because a six month order will avoid

Mr Maneff incurring demerit points and he has already been disqualified from driving for close to six months.

Result

[17] The appeal is allowed. The District Court orders are quashed. On Information No 11078000127 a fine of $400, court costs of $132.89 and disqualification for six months (commencing 16 March 2011) is ordered. On the remaining Informations Mr Maneff is convicted and discharged.

[18] The appeal was filed out of time. The respondent consented to the application for leave to extend the time for the appeal. Leave is granted.

Mallon J