PROWSE v POLICE [2019] NZHC 307

PROWSE v POLICE [2019] NZHC 307 [27 February 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-000001[2019] NZHC 307BETWEEN BART GORDON PROWSEAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2019Appearances: The Appellant in PersonB Vaili for the RespondentJudgment: 27 February 2019ORAL JUDGMENT OF HINTON JSolicitors:Almao Douch, HamiltonParty:B ProwseIntroduction[1] Mr Prowse appeals his sentence following conviction for one charge of drivingin a dangerous manner.1 He was sentenced in the Huntly District Court following ahearing before Judge Spear on 28 November 2018. (I say a little more about thatsubsequently.)[2] Mr Prowse received a fine of $600, and six months' disqualification fromdriving. The disqualification took effect on the date of sentence. It is the date thedisqualification begins with which Mr Prowse takes issue.[3] The notice of appeal specifies the following grounds:(a) The Judge should have directed that Mr Prowse's period ofdisqualification should commence before the date of conviction.(b) His refusal to do so was unreasonable, and the resulting period ofdisqualification is excessive and/or inappropriate.[4] The submissions focused more on an agreement allegedly reached with theprosecutor to downgrade the charge and back-date the disqualification.[5] I do not have a copy of the Judge's reasons.Background[6] The offending occurred on 24 February 2017. Mr Prowse was riding hismotorcycle on SH1 near Taupiri. He had a passenger on the back. The highway wasvery busy in both directions. Mr Prowse passed a police officer, who recorded himgoing at 142 km per hour in a 100 km per hour zone.1 Land Transport Act 1998, s 35(1)(b). Maximum penalty three months' imprisonment, six monthsdisqualification, or a fine not exceeding $4,500. The appellant was also originally charged with asecond charge of driving with blood containing a controlled drug, but he was subsequentlydischarged on that charge and it is not material to this appeal.[7] Mr Prowse continued to travel down SH1 to Huntly. He eventually collidedwith a car in Huntly which turned suddenly into his lane. Both Mr Prowse and hispassenger sustained severe injuries.[8] The respondent gives the following account of the procedural history after theaccident:(a) The appellant was scheduled to appear in the Huntly District Court on17 July 2017. He did not appear. The matter was adjourned for theappellant to be re-summonsed and for proof of service.(b) On 12 September 2017, the appellant was remanded on bail withoutplea for an application for legal aid to be processed.(c) On 26 October 2017, the appellant failed to appear.(d) On 27 October 2017, the appellant appeared, entered a not guilty pleaand was remanded to 16 January 2018.(e) On 16 January 2018, the appellant failed to appear.(f) On 26 January 2018, the appellant made a voluntary appearance in theHuntly District Court.(g) On 3 May 2018, the appellant maintained his not guilty plea and wasremanded to appear for a Judge-alone trial.(h) On 8 August 2018, the appellant failed to appear and a warrant to arrestwas issued at 10.00 am. At 11.30 am the appellant appeared, thewarrant was cancelled and a nominal date was set for a Judge-alonetrial and for Legal Aid approval.(i) On 14 August 2018, a Judge-alone trial date was set for 28 November2018.(j) Following what seems to have been a part-hearing on 28 November2018, the appellant was discharged on a charge of driving with bloodcontaining a controlled drug, and pleaded guilty to the charge of drivingin a dangerous manner. The appellant was convicted and sentenced toa fine of $600 and disqualification for a period of six months,commencing 28 November 2018.Approach on appeal[9] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on convictionand that a different sentence should be imposed.2[10] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.3 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.4[11] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles.5 The focus is on theend result, rather than the process by which the sentence was reached.6Was there an agreement to back-date?[12] Mr Prowse did not himself file submissions on this appeal. I do, however, havean email from Ms Sheree Todd, which I have read, although she is not a lawyer.Mr Prowse gave oral submissions.[13] Mr Prowse says he was offered a deal by the prosecutor when he pleaded guilty.Ms Todd writes, and Mr Prowse says, that the prosecutor offered to alter the charge to"careless use of a motor vehicle by travelling over 100 kms", which would have2 Criminal Procedure Act 2011, s 250(2).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].4 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].5 Tutakangahau v R, at [36].6 At [36].resulted in six months' disqualification of licence to be back-dated to the date ofaccident, being 24 February 2017, and "this would be the end of it".[14] Mr Prowse asserts he pleaded guilty on this basis, but the Judge then sentencedhim on the basis of the original summary of facts and gave the above sentence.[15] He says he was dismayed by this outcome; this is not what he had agreed to,and he requires his licence to attend medical appointments for his injuries resultingfrom the accident.[16] Ms Todd, in her email, then seems to question how it could possibly be provedthat it was Mr Prowse who committed the offending, and suggests the charge resultsfrom the particular police officer's personal animosity towards Mr Prowse. I note thesummary of facts states that Mr Prowse, at least at one point, admitted to the offending.[17] There may be something in Mr Prowse's version of events, but not to the effector extent he contends. The charge was not amended and if that had been agreed, itwould have happened, especially given Mr Prowse was represented. The charge towhich he pleaded remained the same as it was.[18] Secondly, I would have required evidence from Mr Thwaite, Mr Prowse'slawyer, of any "deal" done with the prosecutor. Not only is there no such evidence,but Mr Prowse's lawyer has filed the notice of appeal. It does not refer to anyagreement with the prosecutor, whether to reduce the charge, or back-date. To thecontrary, it says only that the Judge's refusal to back-date was unreasonable. Whatactually happened seems far more likely to have been, consistent with the notice ofappeal and the prosecutor's notes dated 28 November 2018, that Mr Thwaite askedthe prosecutor if he would object to a request for a retrospective disqualification date.The prosecutor said he "would have no objection". But the Judge declinedMr Thwaite's request and said disqualification was to start at the date of sentence.[19] That is in fact as far as a prosecutor can go. Even if the prosecutor had gonefurther than to say they would not object, and had agreed with the defence lawyer thatthey would ask for a retrospective disqualification date, which would be a very rarething for a prosecutor to do, the fact of the matter is, and Mr Thwaite would haveknown this perfectly well, that a prosecutor cannot bind the Judge. The sentencing isthe Judge's decision and the Judge alone. The Judge was not prepared to back-datethe disqualification.[20] I therefore do not accept Mr Prowse's argument in this regard.[21] I turn to consider whether, absent any agreement, there is any basis for appeal.Was the Judge otherwise wrong in not back-dating?[22] The respondent submits that the beginning of the disqualification is the time ofsentence, by default, unless the sentencing Judge exercises their discretion to orderthat the disqualification begin at a different time.[23] They say the Judge chose not to exercise that discretion.[24] The respondent says also there is no basis for exercising the discretion to movethe start date, so the appeal should be dismissed.[25] Under s 85(1) of the Land Transport Act 1998, an order made by a Courtdisqualifying a person from driving takes effect on the day the order is made, unlessthe Court directs otherwise.7[26] The Court may direct that the period of disqualification be back-dated orcommence on a future date.8[27] The obvious example of where a Court may direct that a period ofdisqualification be back-dated is where a person was on bail prior to the sentencingand a condition of the bail was that they not drive. Assuming they complied with thatcondition, the Court might reasonably back-date the disqualification to some extent,so as not to inadvertently punish someone for longer than was required.7 Land Transport Act 1998, s 85(1).8 Edwards v Police [2012] NZHC 1350 at [26].[28] A Court may specify the disqualification takes place sometime in the futurebecause of compassionate reasons, or because the person is serving a sentence ofimprisonment.[29] In Oldfield v Police, the appellant appealed a decision imposing a fine, togetherwith the applicable minimum period of disqualification of 12 months.9[30] Although the issue of back-dating the disqualification had not been raised inthe District Court, the period of disqualification was back-dated by four months, totake account of the appellant having been subject to bail conditions restricting hisdriving already for something like 14 months, and also to take account of delays in theDistrict Court.[31] This case is clearly not like Oldfield. The appellant here was not subject torestrictive bail conditions preventing him from driving for a very lengthy period. Also,any delay was due to the appellant's failing to appear.[32] The disqualification of six months was very light, in any event. That is theminimum period of disqualification for that offence.[33] I do not consider there was any good basis here for back-dating thedisqualification.Conclusion[34] For these reasons, I dismiss the appeal.----------------------------------------------------------------Hinton J9 Oldfield v Police [2013] NZHC 216.