Combes v Police [2012] NZHC 945 (8 May 2012)

Last Updated: 25 July 2012

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-11 [2012] NZHC 945

PETER WILLIAM COMBES

V

NEW ZEALAND POLICE

Hearing: 7 May 2012

Counsel: J Webber for Crown

I Miller for Appellant

Judgment: 8 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1:00pm on the 8th May 2012.

_{JUDGMENT OF WILLIAMS J}

[1] Peter Combes appeals against sentence. He pleaded guilty to careless use of a motor vehicle causing injury and was sentenced on 19 March 2012 in the District Court at Nelson to 13 months disqualification, a fine of $1,500, together with court costs of $132.89 and reparations to the victim of $500.

[2] Mr Combes has no argument with the reparations or the court costs, but says that the fine was too high and the disqualification too long.

Facts

[3] The offending occurred at 6.52pm on the evening of 5 September 2011. The appellant was driving his taxi along Trafalgar Street in Nelson. Trafalgar Street has a

PETER WILLIAM COMBES V NEW ZEALAND POLICE HC NEL CRI-2012-442-11 [8 May 2012]

reasonably high traffic volume and a speed limit of 50km per hour. The appellant approached a right turn into Wainui Street but failed to give way to an ongoing moped. The moped hit his vehicle “at speed” and the rider was thrown into the windscreen of the taxi. The rider was later treated for cuts and bruises to his leg, a broken fist and sprained thumb. The appellant said he simply did not see the moped coming.

[4] In his sentencing comments, Judge Russell, emphasised the fact that this was the appellant’s third appearance for careless use of a motor vehicle. Both the current offending and offending in 1997 (that is two of the three) involved injury to another. The learned Judge specifically and intentionally structured the disqualification period so as to ensure that the appellant could not return to driving without having resat his driving test.

Submissions

[5] The appellant claims that the sentence was manifestly excessive. Counsel argues that when measured objectively, the seriousness of this offending is low because:

(a) neither speed nor alcohol was a factor;

(b) the accident was in the early evening when visibility was low; (c) the victim was following closely behind a car; and

(d) the victim’s injuries were not serious.

[6] The appellant submits that this was a case of momentary inattention rather than serious carelessness. The appellant argued that it was wrong in principle for the learned Judge to work back from his conclusion that the appellant should be made to resit his licence, rather than simply assess the seriousness of the particular offending in light of relevant authorities. The appellant argued that a more appropriate sentence would have been a fine of $750-$1,000 and disqualification of six to nine months.

[7] Mr Webber for the police argues that the penalty is well within range. The Land Transport Act provides a maximum fine of $4,500 and a mandatory minimum disqualification period of six months making the penalties imposed here well within range given the appellant’s history of similar offending. Mr Webber also noted that the injuries suffered by the victim (including a broken hand and sprained thumb) appear to have been worse than those referred to by Judge Russell in his sentencing notes suggesting that the appellant may have been lucky to get what he did.

Analysis

[8] When considering whether sentence was manifestly excessive, a helpful case in Tupu v Police.1 That case also concerned a taxi driver appealing, in part, on the basis an excessively long disqualification period was imposed. Ellen France J summarised the relevant principles in the following way:

[11] The principles for determining the penalty in cases of this nature have been canvassed at the appellate level. There is no tariff for the offending as circumstances vary widely. In addition to Mawhinney, relied on by the appellant, the appropriate term of disqualification was considered in George v Police (AP 14/00, High Court New Plymouth, 29 June 2000, Nicholson J). In that case a charge of careless driving causing injury had resulted in a penalty of a fine of

$1200 and disqualification for 12 months. Nicholson J considered the fine of $1200 appropriate but the disqualification of 12 months was considered manifestly excessive. His Honour concluded that in determining the period of disqualification,

“... the six months disqualification should be regarded as a minimum and nothing more and that the actual period of disqualification must depend on the variety of different circumstances that arise in different cases. I prefer it to the view the minimum period of disqualification should not be exceeded unless there were aggravating circumstances. It is primarily a matter in each case of balancing culpability and consequences. This progresses to consideration of other aggravating and mitigating circumstances. In combination there can be a kaleidoscope of infinite variety.” (at para [20])

[12] George v Police (above) is also instructive on the balance to be struck between the degree of culpability of the driving and the consequences that follow. Nicholson J cited a passage from Rickerby v Police 9AP 263/95, High Court Auckland, 8 December

_{1995) where Anderson J said:}

1 HC Wellington, AP101/03 8 July 2003.

“The legislature in referring to the circumstances of the offence plainly has in mind that the overriding consideration in these cases is the degree of carelessness, not the chance or the seriousness or otherwise of injury. This is not to say that injury will always be irrelevant. There may be circumstances where the degree of carelessness has been relatively minor but the consequences so disastrous that for policy reasons and in order to mark social concern at careless driving because of the potential seriousness of accidents that discretion should be exercised against an appellant.” (at para [11] of George)

[9] In Tupu, the degree of carelessness was very low (Mr Tupu’s foot slipped off the break while edging into traffic) and there were no aggravating factors. Her Honour found the 12 month disqualification was manifestly excessive and the six month starting point was more appropriate.

[10] Returning to the present case, this situation is somewhat more culpable than Tupu. The defendant was a little more careless. His failure to look right was worse than Tupu’s accidental slip. I agree with counsel for the appellant that this situation is well removed from that in Paintin v Ministry of Transport2 which involved crossing the centre line while overtaking on a bend.

[11] Still, having regard to the authorities, I cannot say that the fine of $1,500 is manifestly excessive. It is one-third of the maximum ($4,500) that may be imposed. It is broadly consistent with George v Police. In terms of the cases cited by counsel, it may be considered harsh by comparison with Warner v Police3 a case of serious misjudgement but that case is now 17 years old and predates the 1998 increase in maximum from $3,000 to $4,500. On the other hand, this case is more serious than Homersham v Police4 in which a u-turning motorist did not see a motorcyclist riding behind bicyclists. There a fine of $250 and disqualification of nine months was deemed appropriate. I accept that the fine in this case was within the upper limits of Judge Russell’s discretion but to interfere in it would, I think, amount to tinkering. It

_{would not be reduced by more than a small amount anyway.}

2 _{HC Rotorua AP 25/90, 10 October 1990.}

3 _{HC Wellington AP 132/95, 4 October 1995.}

4 HC Christchurch AP 156/94, 30 June 1994.

[12] Conversely, Tupu does suggest the 13 month disqualification here was manifestly excessive. As that case makes clear, the period of disqualification should depend on the aggravating circumstances in the particular case. “It is primarily a matter in each case of balancing culpability and consequences.”

[13] There are two relevant points to be made.

[14] First, Judge Russell’s sentencing notes suggest he relied on extraneous factors (other than those affecting the seriousness of offending or aggravating factors in the particular case) in setting the disqualification period. The extraneous factor here is the Land Transport Act 1998 ‘trigger’ of resitting the law and practice test for taxi drivers sentenced to more than one year’s disqualification. This suggests that the learned judge may have worked back from the preferred result.

[15] Second, the real aggravating feature identified by the learned Judge was previous convictions. The question is whether those convictions, together with the other aggravating aspects of the offending itself, justify an uplift from six months (identified in Tupu as the starting period) to 13 months. In my view they do not, in light of the small number of convictions and the fact that only one (the least serious) was very recent. Some uplift is required, but not the 116% increase imposed here.

Conclusion

[16] The appeal in respect of the period of disqualification is allowed accordingly and I substitute a period of nine months disqualification. Other aspects of the

_{sentence will remain.}

Williams J