MATETE v POLICE [2022] NZHC 441

MATETE v POLICE [2022] NZHC 441 [15 March 2022]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2022-416-000001[2022] NZHC 441FREDERICK DONALD MATETEvPOLICEHearing: 2 March 2022Appearances: S Mitchell for the AppellantM Mitchell for the RespondentJudgment: 15 March 2022JUDGMENT OF GRICE JIntroduction[1] Mr Frederick Matete pleaded guilty to a charge of careless driving causingdeath. He was sentenced on 12 January 2022 in the Gisborne District Court to12 months' disqualification from driving as well as four months' communitydetention.1[2] Mr Matete appeals his conviction and sentence on the grounds that:(a) the Court could have granted a discharge without conviction;21 Police v Matete [2022] NZDC 282 at [3].2 Sentencing Act 2002, s 106.(b) the sentence was manifestly excessive, notwithstanding the tragicconsequences of the offending, given the low level of carelessnessinvolved.[3] Mr Mitchell indicated Mr Matete's disqualification has been suspendedpending the appeal. Mr Mitchell was not aware of the exact period of disqualificationserved but thought it was in the vicinity of 3 weeks.Background[4] On Saturday 27 March 2021, Mr Matete was working a 12-hour shift drivinga heavy truck and trailer combination unit. He began his shift at 5.00pm. He travelledto Wairoa and collected a load before returning to Gisborne. After emptying his loadat Cedenco in Gisborne, Mr Matete decided to visit his children, who reside inAnzac Street. It was approximately 10.00pm.[5] Mr Matete went inside the address leaving the truck running and the lights on.Shortly afterwards he returned to his truck and turned it off so he could have his break.When he did so, all the lights on the heavy vehicle combination also turned off.[6] The victim completed his shift at Cedenco at 10.00pm. He was returning homeon his 50cc scooter, travelling along Anzac Street. The victim failed to see the rear ofthe trailer unit as he approached it from behind, due to the unit not having lights on.The victim collided with the heavy vehicle combination, causing himself and thescooter to be wedged under the trailer unit. As a result of the injuries sustained fromthe collision, the victim died at approximately 11.12pm.[7] In explanation, Mr Matete stated that when he turned the truck off, he turnedon the night light. When later asked to do so by a Senior Constable at the scene of theaccident, the defendant pushed the light on, but no lights worked on the heavy vehiclecombination due to there being no light fitted.[8] Mr Matete was charged with careless or inconsiderate vehicle operationcausing death on a road.3Lower court decision[9] The District Court Judge emphasised that the offending related to carelessnessand accepted that it was "without question" an accident, but that "[r]egrettably, it is[an accident] that could have been avoided if the defendant had complied with hisobligations as the operator of a heavy motor vehicle."4 The Judge recognised thatMr Matete had worked with the victim, knew him well and counted him as a friend,so therefore would be suffering loss and guilt.5[10] The Judge related the facts, which were not disputed, noting as well thatMr Matete had not been rostered on to work that day but had been called in to coverfor another driver.6 The Judge noted the truck and trailer unit belonged to asubcontractor to Cedenco. The truck and trailer did have a rear-facing light fitted, butit was without a bulb and thus non-operational.7 The Judge noted that the fact MrMatete was provided with a truck that did not have the required rear-facing light wasa matter of concern, because the Judge could not determine the wider responsibilityfor the accident.8[11] Nevertheless, the Judge accepted it was Mr Matete who was charged beforethe Court, and that his carelessness in this case was, leaving the truck and trailer unithe was operating in a dark street, late at night and failing to check that a rear-facinglight was operating at the time he took his break.9[12] The Judge considered that a sentence of four months' community detentionwould be appropriate in this case, to recognise that it was a case of carelessness andMr Matete did not have a record of offending in this way.10 The Judge said that "[n]o3 Land Transport Act 1998, s 38 — maximum penalty three months' imprisonment or $4,500 fine;and mandatory minimum six months' disqualification from driving.4 Police v Matete, above n 1, at [3].5 At [11].6 At [6] and [11].7 At [5].8 At [11].9 At [7] and [11].10 At [13].sentence could possibly reflect the harm that has been done" and was concerned torecognise the level of carelessness involved.11[13] The Judge also disqualified Mr Matete from driving for 12 months.12 TheJudge appreciated this was going to affect the appellant's employment, but said adisqualification period "seems entirely appropriate" and noted it did not limitMr Matete's ability to obtain a limited licence to continue his employment.13Appellant's submissions[14] Counsel for Mr Matete brings four grounds of appeal as alternatives indescending order of preference, that:(a) the Judge should have discharged the appellant without convictionunder s 106 of the Sentencing Act 2002; or(b) there were special circumstances relating to the offence in terms of s 81of the Land Transport Act 1998, such that no disqualification fromdriving was required; or(c) the Judge should have applied s 94 of the Land Transport Act, to extendthe community-based sentence in lieu of disqualification; or(d) the disqualification period ought to have been limited to 6 months.Appeal against refusal to discharge without convictionApproach to appeal[15] An appeal against a refusal to grant a discharge without conviction is acomposite appeal against both conviction and sentence.14 The basis for determining11 At [13].12 At [15].13 At [15].14 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 [7]–[8].an appeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:15(a) by virtue of a material error by the sentencing Judge in entering aconviction; or(b) as a result of an error by the Judge in applying the principles ofdischarging an offender without conviction under s 107 of theSentencing Act 2002.[16] The Court of Appeal in R v Hughes noted that such an appeal is not an appealagainst the discretion of the Court.16 It is a matter of fact requiring judicial assessmentand the discretionary power of the court to discharge without conviction arises only ifthe s 107 threshold has been met.17 An appeal against a refusal to grant a dischargewithout conviction proceeds by way of rehearing.18 Accordingly, the normal appealprinciples apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.19[17] The approach to be adopted by an appeal court in relation to s 107 has beensummarised in this way:20[W]hen it comes to a decision under s 107, the appellate court must come toits own view of the merits; the weight the appellate court gives to the originaldecision is a matter of judgment; and that deference to the assessment of theoriginal decision-maker is not necessary, even where the assessment requiresa value judgment. If the appellate court considers that the original decision iswrong, it must act on that opinion.[18] If the appeal is allowed, the Court must set aside the conviction.21 The Courthas a broad discretion as to next steps,22 including the ability to direct that a judgment15 At [12].16 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].17 At [11].18 Denden v Police [2014] NZHC 1814 at [28].19 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and see Hekev R [2010] NZCA 476 at [17]-[19]20 Denden v Police, above n 18, at [28].21 Criminal Procedure Act 2011, s 233(2).22 Section 233.of acquittal be entered, to direct that a new trial be held, to substitute a conviction fora different offence or to make any other order it considers justice requires.23Relevant law[19] Section 106 of the Sentencing Act provides that if a person who is charged withan offence is found or pleads guilty, a Court may discharge the offender withoutconviction, unless by any enactment applicable to the offence the Court is required toimpose a minimum sentence.24[20] The application of s 106 is guided by s 107. Under this provision, a Court mustnot discharge an offender without conviction under s 106 unless the Court is satisfiedthat the direct and indirect consequences of a conviction would be out of all proportionto the gravity of the offence.25 The Court of Appeal has described s 107 as "a gatewaythrough which any discharge without conviction must pass".26[21] The Court of Appeal has characterised an assessment under s 107 as athree-step process:27(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;28(b) identification of the direct and indirect consequences of conviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.23 Section 233(3).24 Sentencing Act 2002, s 106.25 Section 107.26 R v Hughes, above n 16, at [8].27 Prasad v R [2018] NZCA 537 at [11].28 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].[22] In relation to the first step, the Court of Appeal has confirmed that "whenconsidering the gravity of the offence, the court should consider all the aggravatingand mitigating factors relating to the offending and the offender".29[23] With regard to the assessment of direct and indirect consequences of convictionon a defendant, the Court of Appeal has stated that:30The Judge does not have to be satisfied that the direct and indirectconsequences will inevitably or probably occur; it is sufficient if he or she issatisfied there is a real and appreciable risk of such consequences.[24] In relation to the final step, the Court of Appeal has affirmed in R v Smyththat:31[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequencesmust be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.[25] The Court of Appeal has said there must be a "real and appreciable" risk thatany given consequence will happen.32 This standard "recognises that the court isassessing the likelihood of something that may happen in the future".33 Only if thethree-step test as set out above (the proportionality assessment) is met can the courtmove to consider the residual discretion under s 106.34[26] Once the Court is satisfied the disproportionality test has been met pursuant tos 107 and that the consequences of conviction are out of all proportion to the gravityof the offence, it may then determine whether it should exercise its discretion to granta discharge without conviction.35 Rarely will a Court refuse to exercise its discretionto grant a discharge without conviction when the criteria for a discharge under s 107are satisfied.3629 At [27].30 DC (CA47/2013) v R [2013] NZCA 255.31 R v Smyth [2017] NZCA 530.32 Prasad v R, above n 34, at [11].33 At [11].34 At [11].35 Z (CA447/2012) v R, above n 28, at [21]; R v Hughes, above n 16, at [8]-[12].36 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13]; and Police v Filipo [2016] NZHC 2573at [53(4)].Analysis[27] Mr Matete's appeal against the refusal to grant a discharge against convictioncannot succeed. Counsel for the Crown points out that no s 106 application wasadvanced in the District Court. He then points to Winterburn v R, in which theHigh Court confirmed that in the absence of any evidence as to why an application fordischarge without conviction was not made at sentencing, or any evidential basis forconcluding that a miscarriage of justice had occurred, a discharge without convictionwill not be entertained on appeal.37 The case of Ho38 produced today left undeterminedas to whether if brought in a district Court, but brought on appeal.[28] In any case, Mr Matete's case for a discharge without conviction is not madeout.[29] Counsel for Mr Matete argues that the gravity of the offending was low andthat the consequence of conviction, namely the loss of Mr Matete's income earningability, is significant.[30] It does not appear as though Mr Matete has engaged at all with the sentencingJudge's suggestion that he apply for a limited licence under s 105 of the Land TransportAct. A limited licence would go a substantial way to mitigate any hardship faced byMr Matete resulting from his disqualification.[31] Even setting that consideration to one side, Mr Matete has not provided theCourt with sufficient evidence or explanation as to how that consequence is all out ofproportion to the gravity of the offending, given that his actions ultimately resulted ina person's death when that was entirely avoidable.[32] In summary, the gravity of the offending is not at the very lowest end of thescale. The hazard presented by an unlit parked truck would have been well known bythe appellant as a professional driver. The appellant was in charge of that truck. Hefailed to check the lighting. The consequences are substantial – someone died.37 Winterburn v R [2019] NZHC 104 at [9]–[10].38 Ho v R [2016] NZCA 229[33] Accepting the appellant drives for a living there is no evidence to support aconclusion that the consequences are out of all proportion to the gravity of the offence.He should have checked the night light was operational.[34] On that basis this ground of appeal fails.Appeal against sentence of 12 months' disqualificationApproach to appeal[35] The appeal against the disqualification from driving is brought under s 250 ofthe Criminal Procedure Act 2011. Under this provision, an appeal against sentence isan appeal against a discretion and must only be allowed if the court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.39 The court must dismiss the appeal in any other case.40The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.41 An appellate court will not interveneunless a sentence was outside the range available to the sentencing Judge.42[36] If the appeal is allowed, the appeal court must:43(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate; or(b) vary the sentence, any part of the sentence, or any condition of thesentence; or(c) remit the sentence to the court that imposed it and direct that court totake any action as specified by the appeal court.[37] While s 250(2) makes no express reference to "manifestly excessive", inTutakangahau v R the Court of Appeal said the concept of "manifestly excessive" was39 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].40 Criminal Procedure Act 2011, s 250(3).41 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 39, at [36].42 Tutakangahau, above n 39, at [36].43 Sentencing Act 2002, s 251."simply a means of examining the significance of the error to decide whether adifferent sentence should be imposed".44 A claim which "is inevitably premised onthe contention of a prior error" such as a starting point which is too high, incorrectdiscounts being given, or a lack of parity with co-offenders might qualify.45Relevant law[38] Rule 8.7(2) of the Land Transport (Road User) Rule 2004 prescribes that adriver must not park or leave any goods vehicle that is a heavy motor vehicle on anyroadway during the hours of darkness unless it displays a visible rearward-facingposition lamp. Mr Matete has pleaded guilty to operating a vehicle on a road carelesslycausing the death of another person. Under s 38 of the Land Transport Act, he mustbe disqualified from driving for a minimum period of six months unless s 81 applies.46[39] Section 81 of the Land Transport Act provides:81 Mandatory disqualification: court's discretion if special reasonsrelating to offence(1) If any provision of this Act (other than section 63) requires a court todisqualify a person from holding or obtaining a driver licence ortransport service licence for a period not less than the specifiedminimum period, the court must order that the person be disqualifiedaccordingly unless for special reasons relating to the offence it thinksfit to order otherwise.AnalysisCourt's discretion based on special circumstances[40] Mr Matete submits that the nature of the offending in this case was of adifferent and lower category than those referred to by the prosecution in sentencing,such that the Court should have found there were special circumstances related to theoffending in terms of s 81 of the Land Transport Act. That finding would have enabledthe Court to avoid the otherwise mandatory disqualification of six months.44 At [32].45 At [32].46 Section 38(2)(b).[41] The Supreme Court in Lower Hutt City Council v McAlpine held that specialreasons for the purpose of s 81 of the Land Transport Act are special to the facts thatconstitute the offence and not reasons peculiar to the offender as distinct from theoffence.47 The steps to be examined in determining the existence of special reasonsare:481) whether in law the particular circumstances are capable of constitutingspecial reasons;2) whether special reasons exist on the facts; and3) whether the court should exercise its discretion in whole or in part.[42] A "special reason" was defined in R v Crossen as:49 a mitigating or extenuating circumstance, not amounting in law to defenceto the charge, yet directly connected with the commission of the offence, andone which the Court ought properly to take into account when imposingpunishment.[43] In Anderson v Police the High Court stated:50[15] Special reasons "embrace only factors of particular or exceptionalcharacter". The reasons must arise from the circumstances in which theoffence was committed or the manner of its commission as a whole. Personalcircumstances are not relevant, except to the extent that they influence theevents leading up to the commission of the offence, or a part and parcel of theoffending itself. The special reason must be of a sufficiently compelling natureto justify a departure from the usual consequences. The special reason mustnot conflict with the essential purpose of the statutory provision.[44] In Prue v Police Gendall J described the Court's task under s 81 as "anamalgam of objective judicial assessment and judicial discretion".5147 Lower Hutt City Council v McAlpine [1972] NZLR 168 (SC) at 170.48 Ministry of Transport v Green (1985) 1 CRNZ 492 at 494.49 R v Crossen [1939] NI 106 (KB) at 112.50 Anderson v Police [2016] NZHC 942.51 Prue v Police [2015] NZHC 1606 at [8].[45] The threshold to justify departure from the usual penalty under s 81consequently is high. The facts in this case do not constitute or include any "factorsof particular or exceptional character".[46] I accept the respondent's submission that the fact Mr Matete was parked at thetime of the offending cannot in itself amount to a special reason under s 81. It isaccepted by all parties the appellant has breached a rule of the Land Transport (RoadUser) Rule.[47] Mr Mitchell emphasised the fact that someone else was responsible for lightsnot working which attracted comment by the District Court Judge. Mr Matete was notwholly to blame for the accident in this case as it may not have been his fault the bulbwas not operational. Nevertheless, he bears responsibility as the operator of thevehicle to ensure that he was complying with the rules. That there is a strong publicinterest in ensuring the operators of heavy vehicles ensure they are complying withthe road rules, including making themselves visible to other road users.[48] The tragic consequences of Mr Matete's carelessness in this case could nothave been more serious. Consequently, his carelessness in this respect falls within theclass of those acts or omissions the rule was designed to deal with, namely thosecausing harmful accidents by running into vehicles parked on a road in the dark. Toorder otherwise than the mandatory disqualification here would in my view conflictwith the essential purpose of the statutory provision. In fact,[49] There are no special reasons relating to the offence supporting a departure fromthe usual mandatory sentence of disqualification here.Community-based sentence in lieu of disqualification[50] Mr Matete has requested that his sentence of community detention be treatedas a community-based sentence in terms of s 94 of the Land Transport Act, whichenables the otherwise mandatory disqualification from driving to be replaced by acommunity-based sentence.[51] Section 94 does not apply to the appellant in this case. Section 94(1)(a)provides for a Court to substitute a community-based sentence in lieu ofdisqualification applies if the offender "has previously been ordered on conviction foran offence to be disqualified from holding or obtaining a driver licence".52[52] Section 94 is directed at dealing with recidivist offending. The appellant hasnot previously been disqualified from driving. He therefore fails to meet the statutoryrequirement to enable relief under s 94(1)(a).12-month disqualification manifestly excessive[53] Finally, the appellant submits there was no need for the Judge to exceed themandatory minimum six-month period for disqualification under the Land TransportAct.[54] In support of his argument, the appellant contrasts the 12-month period ofdisqualification imposed in this case with a nine-month period imposed in Barr vPolice.53 The appellant submits the offending in this case was less serious andtherefore should not have exceeded the disqualification in that case.[55] In that case the Judge on appeal considered that the proper range fordisqualification case was somewhere between nine and 18 months.54 The Judgereduced the period of disqualification from three years to nine months as the lowestlevel within the range available to recognise the payment of $8,000 in reparationordered as well as the "very severe" sentence of community work that had beenimposed on sentencing.55[56] The Court noted in Leaupepe v Police, there is limited utility in comparingdisqualification period across cases.56 There is no developed body of case lawaddressing the principles to be applied in fixing the disqualification periods in excess52 Emphasis added.53 Barr v Police HC Rotorua CRI-2011-463-42, 28 November 2011.54 At [30].55 At [34].56 Leaupepe v Police [2015] NZHC 1766 at [7].of the minimum, and there is little guidance from the higher courts in this respect.57Consequently, the extent of the discretion available to the sentencing Judge inimposing a disqualification period is "less fettered than that in respect of aconventional sentencing decision."58[57] In Hitchens v R the Court of Appeal noted that in imposing sentences ofdisqualification there are two competing considerations:59(a) long periods of disqualification typically leave little hope for offenders;(b) it is incumbent on the Courts to keep dangerous drivers off the road foras long as reasonably possible.[58] The Court in Leaupepe suggested the task of the sentencing Judge andappellate Court on review is to "effect an appropriate balance between thoseconsiderations", the fixing of which "depends upon the circumstances of the particularcase."60[59] The respondent accepts the degree of carelessness in this case was not high.However, the respondent argues that because Mr Matete is a professional driver, hecan therefore be expected to have a greater appreciation of his obligations with respectto the safe operation of his vehicle. The respondent rightly points out that Mr Matete'sfailure to ensure his vehicle was visible to other road users resulted in a death that was"entirely avoidable".[60] However, I do consider that a 12-month disqualification period was manifestlyexcessive in this case.[61] While it is true Mr Matete can apply for a limited licence under a 12-monthdisqualification, I consider a six-month disqualification is appropriate in this case.Despite the present accident, I do not see the appellant as a "dangerous driver" in the57 At [7].58 At [9].59 Hitchens v R CA380/03, 25 March 2004 at [10].60 At [11].way that disqualifications are meant to keep "dangerous drivers off the road for as longas reasonably possible."61 As the Court said in Leaupepe, the principal objective ofdisqualification is public safety.62 I do not see Mr Matete as posing a threat to othermotorists in the future.[62] The appellant's submissions emphasise the effects on Mr Matete of hiscolleague's death although of course that is nothing compared to the victim's family'sloss which I bear in mind. But Mr Matete will have to live with the consequences ofhis carelessness for the rest of his life. It is also to be borne in mind that the appellantwas sentenced to community detention.[63] I do not accept the respondent's suggestion that the 12-month period is "justabove the minimum period". It is twice as long as the minimum period. There is nobenefit that an additional six months of disqualification from driving can have beyondthat served by his initial six-month disqualification. In contrast, I can see the benefitto the appellant of a shorter period of disqualification. The appellant drives for hislivelihood and I am sure reducing the restriction on the appellant's driving will besignificant for him.Conclusion[64] I consider the 12-month disqualification was manifestly excessive in thecircumstances.Conclusion[65] The appeal is allowed. The sentence is varied only by replacing the period of12 months' disqualification with a period of 6 months disqualification (the mandatoryperiod). Otherwise the sentence imposed on the District Court remains.[66] Mr Matete has already served part of the disqualification period. Mr Mitchellestimated 3 weeks but could not be certain. The period of disqualification already61 Hitchens v R CA380/03, 25 March 2004 at [10].62 Leaupepe, above n 56, at [8].served before it was suspended is should be deducted from the 6 monthsdisqualification. Leave is reserved to apply if necessary, in relation to that issue.____________________Grice JSolicitors:Stephen Mitchell SolicitorElvidge & Partners, Napier