Martin v Police [2013] NZHC 123 (7 February 2013)

Last Updated: 12 March 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-488-68 [2013] NZHC 123

JONATHAN MARTIN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 February 2013

Counsel: K Hales for Appellant

D Orchard for Respondent

Judgment: 7 February 2013

_{INTERIM JUDGMENT OF PANCKHURST J}

[1] This is an unusual appeal against the refusal to grant a limited licence in the Kaikohe District Court. Following that refusal, Mr Martin filed an appeal in the Whangarei Registry of the High Court. Mr Hales as counsel successfully applied for a change of venue to Christchurch and accordingly the appeal is being heard by me. This in turn reflects the circumstance that Mr Martin has moved and in recent times has been living in Rangiora whereas, events to which I must now refer, occurred in the upper north island.

[2] The appellant’s need for a limited licence arises as a result of an offence committed on 7 January 2009 at Matauri Bay in Northland. The appellant was on a camping holiday. He was then the driver of a Porsche sports car. About the middle

_{of the day following some social activity at a camping ground he took a young man}

MARTIN V NEW ZEALAND POLICE HC CHCH CRI 2012-488-68 [7 February 2013]

for a drive in his car. He drove too fast and in particular, when rounding a corner on the road that provides access to the bay, lost control of the car, which left the road and his passenger lost his life. In the event the appellant was charged with dangerous driving causing death.

[3] Almost two years passed before that charge was finalised. Ultimately a plea of guilty was entered and the appellant appeared for sentence in the Kaikohe District Court in January 2011. Judge Harvey considered that there were three main aggravating features to the offence. These were that the appellant had consumed alcohol before the driving occurred. He considered that there was an element of

‘showing off’ at the time of the driving. Thirdly, he noted, rightly in my view, that it was a persistent course of bad driving, not a momentary lapse on the particular curve. This reflected evidence available to the Crown that the appellant had been observed from the time he left the camping ground to be driving at speed as he approached the scene of the fatality.

[4] The sentence imposed was two years imprisonment. In addition, an order was made for payment of $10,000 reparation for emotional harm. Finally, three years disqualification from driving was ordered. The sentence is now complete aside from the balance of the disqualification term which is left to run.

[5] In February 2012, following his release from prison the appellant successfully applied for a limited licence. This was granted to enable him to drive for up to three hours on two week days every week while he searched for employment. Seemingly nothing untoward occurred during the currency of that limited licence.

[6] The appellant’s background is in the aluminium joinery industry. Initially he hoped to obtain suitable employment in the Auckland area, but after a time he decided to try his chances in Christchurch. He succeeded in obtaining employment with a local company, but that position was subject to his obtaining a limited licence. Directors of the company provided supporting affidavits and in September last year, a further application for a limited licence was made and considered by Judge Davis in the Kaikohe District Court. Mr Martin represented himself. The limited licence

sought was to enable him to drive in the course of his employment, six days a week between essentially 6.00 am and 6.00 pm as his employment required. In addition, the draft order proposed that a significant number of requirements be met by the appellant, as I understand is normal practice in relation to limited licences.

[7] In the event, Judge Davis declined the application, albeit it was not opposed. He was required to consider two matters. First, whether the appellant would experience extreme hardship in relation to employment or otherwise were he not granted a limited licence. The Judge was satisfied that this criteria was met, given Mr Martin’s dependence on returning to the workforce to support himself. The second element described in s 105 ss 2(b) of the Transport Act 1998 is whether granting ‘an order under the section is not contrary to the interests of public safety’.

[8] Judge Davis found that he could not be satisfied of this, and hence declined the application. He narrated the facts of the offending in some detail, noting the aggravating features to which I have referred including that the appellant had been driving a powerful sports car at the relevant time. He referred as well to the appellant’s offending history which included an offence of driving with excess breath alcohol, careless use and the incursion of demerit points for various speeding offences.

[9] This background prompted the Judge to the view that the appellant had ‘a propensity to drive at speed’. Attention was then turned to what the appellant had done while in prison, and subsequent to his release, to address as the Judge described it his ‘errant ways’. The appellant had completed a ‘change skills programme’ (a matter now positively confirmed by the production of the certificate to that effect). Even allowing for that the Judge found that he could not be satisfied that granting a limited licence would not endanger public safety in this particular case.

[10] This prompted the appeal subsequently transferred to this Court and for hearing today. However, there is another twist to the tale. When Mr Martin failed to obtain a limited licence in September last, his employment with the Canterbury company came to an end. He instructed counsel, Mr Hales to amend his application which was done by filing an updated affidavit and a revised draft order.

[11] The new draft order has been prepared to facilitate Mr Martin working on his own account in establishing a business in the aluminium joinery sector. To that end, he needs a licence in order to drive for work purposes and a new proposed order has been prepared to reflect this significant change. That order has been served on the Crown in the context of the appeal, but has not been seen by the Police who as a matter of routine consider limited licence applications with reference to both criteria and including, needless to say, a focus on whether the order is suitably limited for the grant of a limited licence. This development prompted the first difference of opinion on appeal.

[12] Mrs Orchard questioned whether I had jurisdiction to deal with the matter, given the significant change that has occurred in relation to the terms of the application. A defendant’s general right of appeal is defined in s 115 of the Summary Proceedings Act 1957. I have jurisdiction to consider an appeal which challenges any order made in the District Court. In this case, the order made was one declining to grant a limited licence to Mr Martin. Unquestionably I can consider an appeal directed to that decision. However, Mrs Orchard questioned whether it is the same application as was declined in Kaikohe which is now for consideration before this Court. That I think, was a proper matter to raise given the extent of the changes which have occurred and which are now reflected in the amended draft order. However, to my mind the decisive point is that there is no fresh application. The appeal is founded on the original application filed in Kaikohe.

[13] What has changed is the affidavit evidence and, importantly, the terms of the draft order. It follows in my view that there is jurisdiction to consider the matter on appeal, but not without complication. I am being asked to consider an altered application when the alterations have not been the subject of vetting by the police. It is unthinkable that I would go the distance of granting the application in these circumstances. However, the first and substantial point raised by the appeal concerns the issue of public safety. Understandably Mr Hales is anxious to broach this aspect of the case today

[14] Judge Davis gave a considered decision. For the reasons he articulated he was not satisfied that public safety would be assured if a limited licence was granted

to Mr Martin. Counsel’s concern is that any District Court Judge considering the amended application may feel bound by judicial comity to come to a similar conclusion. Hence Mr Hales was concerned for the public safety point in particular to be considered in this Court on appeal, albeit that may result in the need for the revised application to be considered by the police should I come to a different view concerning public safety.

[15] The argument in relation to this aspect is quite narrow. The appellant relies upon a decision of Justice Harrison in Boyes v NZ Police[1]. The appeal in that instance was allowed on the basis that the District Court Judge in declining a limited licence application had adopted a wrong focus. He had considered the issue of public safety in a broad context, at-large effectively. That is, by reference to the risk that the applicant would pose as a general driver. As in the present case the Judge in

Boyes reached the view that on account of the applicant’s driving record he could

effectively not be trusted in relation to the safety of the public.

[16] Justice Harrison intervened and found that the focus adopted was wrong, because it was necessary to look at the risk not in an at-large context, but in the context of the applicant as limited licence driver. Doing that, he came to the view that the District Court Judge had erred, allowed the appeal and granted the limited licence given that the terms of the proposed draft order had been vetted and were viewed as suitable by the police.

[17] Did Judge Davis adopt an incorrect focus in this case? Despite Mrs Orchard’s submissions to the contrary, I am satisfied that he did. Understandably perhaps, he focused very much upon the details of the dangerous driving causing death offence and after reference to the other offending reached the view that the appellant would pose a risk to public safety. I do not consider that even reading his remarks as a whole, it can be said that there was the necessary focus upon whether that risk would materialise in the more limited context of the appellant holding a

_{limited licence subject to the restrictions imposed in a Court order.}

[18] I therefore see this case as similar to Boyes and find that it is necessary for me to review the issue of public safety afresh. The draft order that was before Judge Davis and the draft order that is before me, both include numerous safeguards in relation to the proposed limited licence. Obviously the appellant if granted a licence may only drive within the course of his employment. He is required to keep a log book to verify that. He may not consume alcohol prior to driving. His hours of driving are limited, albeit Mrs Orchard questions whether that aspect requires careful consideration by the police. This to my mind creates a significantly different context to the one which was considered by Judge Davis. He looked at risk in the context of the appellant driving at large and not subject to a limited licence.

[19] That said, I think there is another dimension that should also have been brought to account. The emphasis upon the driving conduct which led to the death of a young person in early 2009 was entirely proper, but it is necessary to factor in a downstream consideration. Three years have now elapsed. There has been no errant driving, seemingly, since then during the period before the appellant was sentenced or during the time he held a limited licence to seek employment. Even more importantly, he is now a convicted offender who will carry the stain for the rest of his days of having caused the death of his passenger. He has served a sentence of imprisonment and met a reparation order. Hopefully his character has changed to the extent that he is more cognisant of the responsibilities upon drivers in this country.

[20] To not bring this aspect to account, it seems to me, is to deny a principal rationale of criminal sentencing; that is deterrence. I think it is necessary to consider in a case such as this which involves such a serious offence, and outcome, whether a person is likely to have learnt from his experience and to be the better for it, in relation to future risk when he is behind the wheel.

[21] Mr Martin is a mature man, aged in his mid 40’s. He has had responsible employment in the past. There is every reason for him to mend his ways and ensure that he never places himself in the predicament he has been in over recent times. For these reasons, I am satisfied that the public safety criteria is met when viewed in the required light. However, it would be premature for me to allow the appeal and grant the limited licence in the terms sought. As I have already noted there have been

significant changes and these have not been vetted by the police. The necessary course is for the additional affidavit evidence and the draft order to be considered by the police so that a report may be provided to me.

[22] If it is accepted that the present draft order, or any new draft order reflecting changes agreed to with counsel, is appropriate, I will deal with the matter on the papers and grant the limited licence. If however, there are difficulties as to the terms of the draft order following police consideration of it, and those are not capable of resolution, the matter can be brought back before me in open Court for final determination.

[23] Accordingly the formal order is that the grant of the limited licence is reserved to enable the terms of the draft order to be considered and referred back to me as soon as possible.

Solicitors:

K Hales, Helmore Bowron & Scott

D Orchard, Raymond Donnelly

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[1] Auckland CRI-2009-404-16, 3 February 2009