O’ROURKE v NEW ZEALAND POLICE [2023] NZHC 1805

O'ROURKE v NEW ZEALAND POLICE [2023] NZHC 1805 [11 July 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-15[2023] NZHC 1805BETWEEN JUSTIN O'ROURKEAppellantAND NEW ZEALAND POLICERespondentHearing: 11 July 2023Appearances: Appellant in personG J C Carter for the RespondentJudgment: 11 July 2023JUDGMENT OF PALMER JSolicitorsBVA The Practice, Palmerston NorthWhat happened?[1] Just after midnight on Sunday 19 March 2023, Police arrived at the MobilService Station in Bulls. Mr Justin O'Rourke, aged 33, jumped from the passenger'sseat into the driver's seat of a car and accelerated quickly away. The Police activatedtheir flashing lights to signal him to stop but say he "accelerated away quickly", failedto stop, and "continued on Bridge Street towards SH 3 at high speeds". Mr O'Rourkewas an unlicensed driver who had been forbidden from driving until he got his licence.[2] On 9 June 2023, Mr O'Rourke appeared for sentencing in the District Court atPalmerston North, on charges of failing to stop for red and blue flashing lights, drivingwhile forbidden and another charge of wilful damage which appears to have related toa separate incident.[3] The charge of failing to stop was originally laid on the basis that it was MrO'Rourke's third or subsequent offence. But, at the sentencing, Mr O'Rourke wasadvised by the duty lawyer that it should have been charged as his such first offencewhich would only incur a fine. Counsel for the Police appears to have agreed becausethe charge was amended accordingly. Mr O'Rourke pleaded guilty. But he wassurprised that Judge W K Hastings then disqualified him from driving for six months.1The Judge simply pronounced sentence, without providing any reasoning.Submissions[4] Mr O'Rourke appeals the sentence for failing to stop. He submits he pleadedguilty on the basis that the offence would incur a fine only. It was a deal done quicklyand he just wanted to have his charges sorted out. He did not know he would bedisqualified from driving if he pleaded guilty. If he is subject to disqualification, hewants to amend his plea.[5] Mr Carter, for the Police, submits the only way in which the Judge could havereached his sentence is by invoking s 52A(3) of the Land Transport Act 1998 (LTA):(3) If a person is convicted of a first offence against subsection (1)(a) or(b) and committed the offence while exceeding the applicable speed1 New Zealand Police v O'Rourke [2023] NZDC 13179.limit or operating a motor vehicle in an otherwise dangerous manner,a court must order the person to be disqualified from holding orobtaining a driver licence for 6 months.Should the appeal succeed?[6] There is doubt as to the factual basis for the application of s 52A(3) of the LTA,if it was applied. The Summary of Facts which was the basis for Mr O'Rourke's guiltyplea does not say he was exceeding the speed limit and there was no separate chargeof that. It says he "accelerated away quickly" and "continued on Bridge Street towardsSH 3 at high speeds". That might give rise to an inference of speeding, but I do notconsider that is clear beyond reasonable doubt. We do not know exactly where theoffending is said to have occurred, what the speed limit was there, and what spped MrO'Rourke was doing. Given Mr O'Rourke's stance, Mr Carter accepts there couldhave been grounds for a disputed facts hearing. I consider that is a basis for upholdingthe sentence appeal.[7] Furthermore, while ss 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2) of the LTAwere specifically referred to in the charging document and in the Summary of Facts,s 52A(3) was not. I accept Mr O'Rourke had not been advised of the relevance oreffect of s 52A(3) on the sentence for the charge to which he was pleading guilty.Mr Carter agreed that Mr O'Rourke's appeal, as a self-represented appellant, might bebest characterised as an appeal of his conviction. I consider that is so. Under s 232(2)of the Criminal Procedure Act 2011 I must allow an appeal against conviction ifsatisfied there has been a miscarriage of justice for any reason. I consider thecircumstances here constitute a miscarriage of justice, given that the conviction restson a guilty plea given when Mr O'Rourke did not appreciate the nature of the charge.Result[8] I allow the appeal and quash the conviction and sentence for failing to stop forred and blue flashing lights.Palmer J