ROSS STANLEY HOMER v NEW ZEALAND POLICE [2023] NZHC 1761

ROSS STANLEY HOMER v NEW ZEALAND POLICE [2023] NZHC 1761 [29 June 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-000069[2023] NZHC 1761BETWEEN ROSS STANLEY HOMERAppellantAND NEW ZEALAND POLICEDefendantHearing: 29 June 2023Appearances: H V Bennett for the AppellantG E R Alloway for the RespondentJudgment: 29 June 2023ORAL JUDGMENT OF GENDALL JIntroduction[1] On 4 April 2023 the appellant, Mr Ross Homer appeared before Judge MabeyKC in the Christchurch District Court for sentencing,1 on a charge of dangerousdriving to which he had pleaded guilty. Mr Homer was sentenced to pay $2,000 inreparation and was disqualified from driving for a period of six months.2[2] Mr Homer now appeals the conviction and sentence on the basis that thesentencing hearing was flawed and resulted in a miscarriage of justice.1 Police v Homer [2023] NZDC 7014 [Sentencing Notes].2 Land Transport Act 1998, s 35(1)(b) carries a maximum penalty of three months' imprisonmentor a fine of $4,500 and the court must order the person to be disqualified from driving for a periodof six months or more.Facts[3] At about 10 am on 5 October 2022, Mr Homer was driving his car alongBlenheim Road, Christchurch. It was raining heavily. The road was slippery and wet.Traffic density at the time was medium. The road layout on the particular section ofthe road in question is such that there are two lanes in either direction, separated by araised traffic island.[4] At one point, Mr Homer was cut off by another vehicle. Effectively, the otherdriver changed lanes and drove directly in front of Mr Homer's vehicle. In response,Mr Homer changed lanes and drove directly next to the other vehicle. He thenaccelerated in an attempt to get in front of the other vehicle. He accelerated at such arate that he lost control. His car slid on the road for about 100 metres, mounting theraised traffic island and crossing onto the opposite side of the road. Once there,Mr Homer's car collided with one travelling in the opposite direction, causing it tostrike another vehicle.[5] Mr Homer has not previously been before the courts. He is 74 years old.District Court's decision[6] Judge Mabey, in the Christchurch District Court, established the circumstancesof the offender and the offending. This included Mr Homer's age at 74, the fact hehad no previous convictions, the motivation behind the offending and the financialconsequences of the offending. The Judge came to the conclusion that Mr Homer'soffending was not motivated by a desire to be a "boy-racer trying to show who has gotall the grunt" but was merely careless.3[7] Based on this assessment, the Judge expressed concern about the chargingdecision. He considered the offending warranted a lesser charge of careless drivingthan the charge Mr Homer faced, of dangerous driving. However, because Mr Homerhad pleaded guilty to dangerous driving, the Judge said he was compelled to disqualifyhim from driving for a period of six months, which he did. The Judge did not fine3 Sentencing Notes, above n 1, at [14].Mr Homer but ordered emotional harm payments of $1,000 each to both victims, thesetotalling $2,000.[8] In a Minute dated 19 April 2023, Judge Mabey further clarified the position.He repeated his concern about the appropriateness of the charge. He then noted thathe gave the prosecuting sergeant an opportunity to amend the charge. He did notrealise at the time it seems that the sergeant had expressed a willingness to take thatcourse of action. In his Minute, Judge Mabey noted that if the sergeant had indeedamended the charge to one of careless driving, that would have resulted in a vacationof the guilty plea to the dangerous driving and a conviction for the substituted chargeof careless driving instead. And, in that case, the Judge said he would not havedisqualified Mr Homer from driving.Grounds of appeal[9] Mr Homer appeals on the ground that the District Court Judge erred by notallowing him an opportunity to vacate his guilty plea and to enter a plea to a lessercharge of careless driving. This resulted in a miscarriage of justice.SubmissionsFor the appellant[10] Ms Bennett, for the appellant, submits that the sentencing process was flawedsuch that a miscarriage of justice has occurred here. The Judge recognised thatMr Homer had been charged with a more serious offence than the offending warranted,he invited the prosecution to amend the charge, but he failed to action it once theprosecution indicated it would be willing to reduce the charge to one of carelessdriving. The Judge, it is said, did not allow Mr Homer an opportunity to speak withcounsel nor, it appears, was either counsel given an opportunity to address the Courton the issue. The way the sentencing exercise took place meant the interests of justicewere not met.[11] Judge Mabey it seems did have a discretion to vacate Mr Homer's guilty pleaup to the point he was sentenced. The Judge accepted that the interests of justicerequired Mr Homer's charge to be amended to the reduced careless driving charge but,Ms Bennett submits, the Judge wrongly exercised his discretion to refuse Mr Homerto vacate his guilty plea. This, she maintained, resulted in a miscarriage of justice.The Judge, Ms Bennett noted, ultimately bears the responsibility of ensuring justice isdone and here, she says, that responsibility was not discharged.[12] Accordingly, Ms Bennett contends this Court, on appeal, should quash theconviction and in doing so bring matters to an end. This, she says, can be achieved byeither quashing the conviction for dangerous driving and entering a conviction forcareless driving in its place, or by remitting the matter back to the District Court.For the respondent[13] Mr Alloway, for the respondent, maintains that no miscarriage of justice hasoccurred here because the charge of dangerous driving fit the proof which was beforethe District Court and Mr Homer's guilty plea was entered following competent legaladvice.[14] The respondent says also that Mr Homer's comments in a discussion withJudge Mabey during the sentencing were not made under oath and therefore are quiteuntested. Even if taken to be true, Mr Alloway says they do not necessarily mean thatMr Homer's offending cannot be characterised as dangerous driving. To the contrary,Mr Homer's offending was objectively dangerous, Mr Alloway suggests, and it wascaused by some fault on Mr Homer's part, satisfying the elements of the offence ofdangerous driving.[15] Therefore, the police position, Mr Alloway confirms, is that the appeal shouldbe dismissed.Relevant law[16] Appeals against conviction are brought under ss 229 and 232 of the CriminalProcedure Act 2011. This Court must allow the appeal if it is satisfied that amiscarriage of justice has occurred for any reason.4 A miscarriage of justice is definedas any error, irregularity, or occurrence in or in relation to or affecting the trial that:5(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[17] "Trial" includes a proceeding in which the appellant pleaded guilty.6Analysis[18] I consider overall that a miscarriage of justice has occurred in this case. MrHomer was originally charged with reckless driving. His counsel had this chargereduced to one of dangerous driving but Judge Mabey's clear assessment was that theoffending warranted an even lesser charge of careless driving. The prosecutingsergeant representing the police at sentencing, as I understand it, agreed that MrHomer's conduct justified the lesser charge of careless driving. He indicated awillingness to amend the charge. I accept from Judge Mabey's later minute that forsome reason—no doubt, in part, as a result of the time pressures and generally the highworkload of the District Court—the prosecuting sergeant's intention to amend maynot have been communicated sufficiently clearly to the Judge.[19] When an application is made to withdraw a guilty plea before sentence, thetouchstone is whether the interests of justice require leave to be granted.7 In thecircumstances I have described above, it was plainly in the interests of justice forMr Homer to have been granted leave to withdraw his guilty plea to the charge ofdangerous driving. I note the proceedings were the first time Mr Homer had appearedbefore the courts. Understandably, he would have been unfamiliar with the process.As I have noted, he is 74 years old. It seems he was not afforded an opportunity toconsult with counsel after Judge Mabey's comments about the appropriateness of thecharge. And neither Ms Trinder, counsel at the time for Mr Homer, nor Sergeant Friese4 Criminal Procedure Act 2011, s 232(2)(a) and (c).5 Section 232(4).6 Section 232(5).7 Marino v Police HC Napier CRI-2007-441-27, 14 May 2008 at [9]; R v Ripia [1985] 1 NZLR 122at 127; R v Turrall [1968] NZLR 312 at 315; and R v Kihi CA395/03 25 March 2004.for the police were given an opportunity to be heard on the issue. While the CriminalProcedure Act does not stipulate any particular procedure for the making of anapplication to withdraw a guilty plea under s 115, as a matter of natural justice, thecourt must give both parties a chance to be heard.8[20] I agree with Ms Bennett that this matter has gone on long enough consideringthe relatively low seriousness of the offending. Mr Homer has paid the emotionalharm reparation payments ordered amounting to $2,000. I note also that he expresseda willingness to engage in restorative justice processes but that was deemed not to beappropriate here. I do not consider any useful purpose will be served by remitting thematter back to the District Court. Rather, I adopt the Court's powers under ss 233 and234(4) of the Criminal Procedure Act 2011 and now quash the conviction fordangerous driving and substitute it with a charge and a conviction for one of carelessdriving.Result[21] This appeal is allowed.[22] I order that Mr Homer's conviction on the charge of dangerous driving bequashed and substituted with a conviction on a substituted charge of careless driving.And, as to his sentence, the six month period of disqualification from driving is nowset aside and a further order is now made to this effect. The emotional harm paymentsalready made remain unaffected.Gendall JSolicitors:Malley & Co for the AppellantRaymond Donnelly & Co for the Respondent8 Attorney-General v District Court at Manukau [2017] NZHC 1958, at [17].