Kidwell v Police [2014] NZHC 144 (13 February 2014)

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Kidwell v Police [2014] NZHC 144 (13 February 2014)

Last Updated: 5 March 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-019-2011 [2014] NZHC 144

BETWEEN HAMISH SHANE KIDWELL Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 February 2014

Appearances: G A Walsh for the Appellant

J E Tarrant for the Respondent

Judgment: 13 February 2014

REASONS JUDGMENT OF ELLIS J (Sentence appeal)

This judgment was delivered by me on Thursday 13 February at 11 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

G A Walsh, Barrister, Hamilton

J E Tarrant, Almao Douch, Hamilton

KIDWELL v NEW ZEALAND POLICE [2014] NZHC 144 [13 February 2014]

[1] On 24 May 2012 Mr Kidwell pleaded guilty to:¹

(a) One charge of driving while forbidden: s 31(1)(a) of the Land

Transport Act 1998 (the LTA);

(b) One charge of disorderly behaviour: s 3 Summary Offences Act 1981; (c) One charge of failing to answer Court bail: s 38 Bail Act 2000.

[2] The Judge disqualified Mr Kidwell from driving for six years and fined him

$800. This judgment relates to his appeal from the six years’ disqualification.

[3] At the hearing of the appeal on 11 February the Crown accepted that the six year disqualification period is manifestly excessive. I allowed the appeal and substituted a sentence of 12 months’ disqualification. I said I would later briefly give my reasons, and I do so below.

[4] I begin by noting that the Police summary of facts in Mr Kidwell’s case wrongly stated that the maximum penalty available on the driving while forbidden charge was three months’ imprisonment, a $1000 fine or six months disqualification.² In fact, s 31(1)(a) does not refer either to imprisonment or disqualification. Disqualification only becomes a sentencing option by virtue of the operation of s 80 of the LTA, in circumstances where the Court is satisfied that the offence relates to road safety. Under s 80, there is no maximum period of disqualification that may be ordered; rather it is “for such period as the Court thinks

fit”.

[5] Although the learned Judge did not refer to s 80, it seems clear from her notes that she did consider that road safety was implicated in Mr Kidwell’s behaviour. She

¹ Mr Kidwell did not seek to bring this appeal until after the expiry of the statutory period for doing so. His application for leave to bring it out of time was not opposed and is granted.

² Driving while forbidden essentially means driving without the appropriate licence and is to be differentiated from driving while disqualified. In Mr Kidwell’s case it appears that notwithstanding that he is nearly 50 years old he has never in fact had a driver’s licence and (as the learned District Court Judge noted) has 10 previous convictions under s 31(1)(a).

noted that he has glaucoma, which affects his ability to see and therefore to drive safely. Indeed it seems that it is because of his glaucoma that he has, in recent times, been unable to obtain a licence, although I understand that that soon may be surgically remedied. And, in any event, there is authority that driving without the appropriate licence in and of itself “relates to” road safety.³

[6] That said, however, Ms Tarrant for the Crown advised that she had been unable to locate any other cases involving only driving while forbidden in which disqualification of any length had been imposed. That may be because there is something of a logical paradox involved in disqualifying a person who does not, or is not entitled to, hold a driver’s licence from holding one. But equally, disqualification also operates to prevent the subject of it obtaining a licence, and for that reason I can see no “in principle” impediment to the operation of s 80 here.

[7] Ms Tarrant also accepted that a six year disqualification period seemed out of all proportion with the periods of disqualification that tend to be imposed for even the more seriously recidivist driving while disqualified offenders, which tend to be no greater than two years. Obviously, in cases involving more serious charges (such as those involving excess breath or blood alcohol, or disqualified driving where injury or death has resulted) different considerations, and different statutory provisions and penalties, are at play.

[8] The critical reality is that Mr Kidwell has repeatedly driven while forbidden over a number of years. But although I accept that in the circumstances of his case s 80 is tenably engaged, my view is that no longer than 12 months can be justified.

[9] For these reasons (and as I have noted, without opposition) the sentence of six years’ disqualification is quashed and a 12 month disqualification period is substituted. Due to Mr Kidwell’s delay in bringing the appeal that period has already

_{expired. I stressed to him at the hearing, and I trust he understands, that he needs to}

³ In Schultz v Ministry of Transport HC Auckland AP261/90, 19 December 1990, it was held that the words “relates to road safety” in s 80 should not be given a restricted meaning. And in Whenui v Ministry of Transport SC Auckland, 1 July 1971, driving without an appropriate licence was held to relate to road safety, as the object of the statutory test was to ensure that only drivers with a required standard of competence may drive.

have an eye operation and then to apply for his licence so this issue does not arise

_again.

Rebecca Ellis J