PEARSE v POLICE [2023] NZHC 2900

PEARSE v POLICE [2023] NZHC 2900 [17 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2023-485-048CRI-2023-485-049CRI-2023-485-050[2023] NZHC 2900BETWEEN SAMUEL PEARSEAppellantAND NEW ZEALAND POLICERespondentHearing: 12 October 2023Appearances: R O'Hagan for AppellantN Jamieson for RespondentJudgment: 17 October 2023JUDGMENT OF GRICE J(Appeal against convictions)Introduction[1] The appellant, Mr Samuel Pearse, appeals against three convictions:(a) failing to stop when required (third or subsequent), offence date23 June 2018;11 Land Transport Act 1998, ss 52A(1)(a)(i) and (5) — maximum penalty three months'imprisonment; and mandatory two-year disqualification from holding or obtaining a driver'slicence. The appellant was charged and convicted under s 52A(1)(a)(i) for failing to stop as soonas practicable when signalled or requested to stop under s 114(1). However, this appears to be anerror, and the correct charge ought to have been under s 52A(1)(a)(ii), for failing to stop whenrequired to under s 114(2). This was not raised on appeal and all other documents, including thosein this appeal, refer to s 52A(1)(a)(ii). Nothing turns on this point.(b) driving while disqualified (third or subsequent), offence date14 August 2020;2 and(c) driving while disqualified (third or subsequent), offence date26 September 2020.3[2] The appellant says he was wrongly charged with failing to stop for the third orsubsequent offence under the Land Transport Act 1998 (the Act), as he did not havethe prerequisite previous convictions to engage the aggravated form of this charge.The appellant says he wrongly therefore pleaded guilty and was convicted andsentenced in error. The appellant says this error informed the next two wrong-footedconvictions for driving while disqualified.[3] The appellant submits the failing to stop charge was in error because it was hisfirst offence against s 52A, as his previous convictions for failing to stop were in 2006and 2014, which pre-dated the enactment of s 52A. Accordingly, the appellant saysthe correct charge was pursuant to s 52A(1)(a)(ii)4 and (2)–(3), with a maximumpenalty of a $10,000 fine and possibly six months' disqualification. The appellant sayshe was instead charged in the aggravated form (for a third or subsequent offence),which carries a higher penalty, relevantly here a mandatory two-year disqualificationfrom holding or obtaining a driver's licence.5[4] The appellant says the error was not discovered by any of the parties involved,and he pleaded guilty to the charge in its aggravated form. He was then sentenced anddisqualified from holding or obtaining a driver's licence for the mandatory two yearsfrom 22 August 2019 to 22 August 2021, cumulative on a six-month disqualificationfor a separate charge of dangerous driving. The appellant says that if he had beenproperly charged and convicted, the correct maximum penalty of six months'disqualification would have ended by 22 August 2019 (although this fails to account2 Sections 32(1)(a) and (4) — maximum penalty two years' imprisonment or $6,000 fine; andmandatory one-year disqualification from holding or obtaining a driver's licence.3 Sections 32(1)(a) and (4) — maximum penalty two years' imprisonment or $6,000 fine; andmandatory one-year disqualification from holding or obtaining a driver's licence.4 See n 1 above.5 The charge for third or subsequent offending against s 52A(1) also carries a maximum penalty ofthree months' imprisonment, but this was not an issue in this case.for the separate six-month period of disqualification for the dangerous driving charge).The appellant says the conviction for failing to stop and subsequent two-yeardisqualification were therefore in error.[5] On 14 August 2020 and on 26 September 2020, the appellant was stoppedwhile driving. He was charged with driving while disqualified (third or subsequentoffence) in respect of each. The appellant says that if the correct failing to stop chargehad been applied, he would not have been disqualified at the time of either, and thesetwo charges and convictions are therefore also in error.[6] In respect of the 14 August 2020 offending, the appellant was convicted andsentenced to 40 hours' community work in lieu of disqualification.6 In respect of the26 September 2020 offending, he was ultimately sentenced to one year'simprisonment, concurrent with an 18-month sentence of imprisonment in respect ofother non-driving charges. He was also disqualified from driving for 12 months. Theconsequence of the appellant being disqualified for more than 12 months means he iscurrently required to re-qualify for his licence, rather than simply to have his licencereinstated.[7] The respondent submits the appeal against conviction should be dismissed, onthe basis that the appellant was correctly charged under s 52A of the Act, as s 52A(1)creates the offence of failing to stop. However, the respondent accepts that the Courtmay quash the sentence imposed and substitute in its place a sentence of six months'disqualification, which would have been served cumulatively with the dangerousdriving charge. If the Court adopts this course, the respondent would not oppose theappeals against the convictions for driving while disqualified, as the appellant wouldnot have been disqualified from driving at the time.Leave to appeal out of time[8] The appellant has brought his appeal against the convictions between 22 and55 months out of time. However, the delay is said to be due to the alleged error onlybeing realised during recent 2023 court appearances for the appellant.6 Pursuant to s 94 of the Land Transport Act.[9] A first appeal court may extend the time allowed for filing a notice of appeal,7and the "touchstone" is the interests of justice in the given case.8 Leave to appeal outof time is not opposed by the respondent. I am satisfied this is not a matter ofdisrupting the finality of convictions and sentences lawfully imposed but rather, if theappellant is correct, it redresses a fundamental error in the conviction. Leave isaccordingly granted.Approach to appeal[10] Section 232(2)(c) of the Criminal Procedure Act 2011 (the CPA) provides thatthe Court must allow an appeal against conviction if satisfied that a miscarriage ofjustice has occurred for any reason.[11] A "miscarriage of justice" is any error, irregularity, or occurrence in or inrelation to or affecting the trial that (a) has created a real risk that the outcome of thetrial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.9 A"trial" includes a proceeding in which the appellant pleaded guilty.10[12] A "real risk" the outcome was affected exists when there is a "reasonablepossibility that a not guilty (or a more favourable) verdict might have been deliveredif nothing had gone wrong".11 An unfair trial exists when errors are prejudicial orunacceptably give rise to the appearance of unfairness. The grounds for appealing aconviction following a guilty plea must be exceptional.12 A conviction cannot beimpugned where the appellant fully appreciated the merits of the position and madean informed decision to plead guilty.13[13] If the appeal is allowed, the Court must set aside the conviction.14 The Courthas a broad discretion as to next steps,15 including the ability to direct that a judgment7 Criminal Procedure Act 2011, s 231(3).8 R v Knight CA210/97, 20 November 1997.9 Criminal Procedure Act 2011, s 232(4).10 Section 232(5).11 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 [110].12 R v Le Page [2005] 2 NZLR 845 (CA) at [16], endorsed by the Supreme Court in Wilson v R[2015] NZSC 189, [2016] 1 NZLR 705 at [96]–[97].13 At [16].14 Criminal Procedure Act 2011, s 233(2).15 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.16Appeal against conviction for failing to stop when required[14] Section 52A of the Act was inserted by the Land Transport Amendment Act2017. The appellant was charged with an offence under s 52A(1)(a)(ii),17 whichprovides that a person commits an offence if the person is the driver of a vehicle thatfails to stop when required to stop under s 114(2). Section 114(2) of the Act providesthat "[a]n enforcement officer in a vehicle following another vehicle may, bydisplaying flashing blue, or blue and red, lights or sounding a siren, require the driverof the other vehicle to stop."[15] Section 52A prescribes escalating penalties where a person is convicted of twoor more offences against subs (1), including subs (5), which prescribes higher penaltiesfor persons convicted for a third or subsequent offence against s 52A(1).[16] I turn to consider Tongalahi v Police, decided last year, which is legally verysimilar to the present situation.18 In that case, the appellant similarly had previousconvictions for failing to stop relating to offending committed before the introductionof s 52A. The appellant appealed his conviction out of time, arguing that he shouldnot have received the greater penalty applicable for a third or subsequent offenceagainst s 52A, as his index offending was his first breach of s 52A specifically.Paul Davison J held that the appellant in that case was correctly charged under s 5.19His Honour noted:20[14] The appellant was charged and convicted of the correct offence.Section 52A(1) creates inter alia an offence of failing to stop. While s 52Aalso provides for escalating penalties where a person is convicted of two ormore offences against subsection (1), it does not create a separate offence forfailing to stop on a third or subsequent occasion. In other words, a priorconviction is not an essential ingredient of the offence under s 52A(1). Theappellant was correctly charged under this provision.16 Section 233(3).17 As noted above at n 1, the appellant was charged and convicted of an offence under s 52A(1)(a)(i).However, the summary of facts makes it clear that the correct charge ought to have beens 52A(1)(a)(ii). As noted, nothing turns on this point.18 Tongalahi v Police [2022] NZHC 1409.19 At [14].20 At [14][17] It was accepted that there was one inaccuracy and two errors in the chargingdocument. The inaccuracy related to the appellant having been convicted of an offenceagainst s 114, whereas these were not offences against s 52A(1). The two errors relatedto the specified penalties. However, Paul Davison J held that there was no evidencethat the errors and deficiencies in the charging document affected the appellant'sability to consider the case against him or to instruct his counsel.21 The errors did notrender the charge a nullity. Rather, the errors related solely to the disclosure ofpenalties. While s 22(2) of the CPA requires that information to be disclosed, s 22(4)specifically provides that a charge "must not be dismissed solely on the grounds thatit does not comply with subsection (2)". His Honour did not believe a miscarriage ofjustice had occurred and dismissed the appeal against conviction.[18] The charging document in this appeal contained the same inaccuracy and thesame errors. The appellant in this case was charged with an offence under s 52A(1).Section 52A(5) provides unequivocally that if a person is convicted of a third orsubsequent offence against s 52A(1), the Court must order the person to bedisqualified from driving for two years. The Judge disqualified the appellant fromdriving for two years on the understanding, shared by all parties involved at the time,that the offending was the third or subsequent qualifying offence against s 52A(1).However, it was not.[19] In Martin v Police, decided in 2021, the High Court held that convictions forfailing to stop under the predecessor provision prior to the insertion of s 52A were notqualifying convictions for the purpose of increased penalties under s 52A.22 Palmer Jconsidered the text of s 52A was "very clear" that for a previous conviction to qualifyfor the purpose of the increasing penalties provided for by s 52A, it must be an offencespecifically "against subsection (1)" of s 52A.23 His Honour held that "Parliament21 At [17].22 Martin v Police [2021] NZHC 1356.23 At [14].intended to increase penalties on those who repeatedly offend against s 52A,prospectively."24 This approach was endorsed and adopted in Tongalahi.25[20] Palmer J again had reason to consider the issue in July 2023. InO'Rourke v Police, which similarly involved a charge under s 52A(1) on the mistakenbasis that it was the defendant's third or subsequent offence, given his previousconvictions under the predecessor legislation, Mr O'Rourke pleaded guilty to thecharge after the error was realised and the charge amended accordingly.26 However,the Judge disqualified the defendant from driving for six months. Palmer J allowedthe appeal. In respect of the sentence, his Honour noted such a sentence was then onlyavailable if it was clear beyond reasonable doubt that the defendant was drivingdangerously, which was not the case.27 His Honour also quashed the conviction onthe basis that there was a miscarriage of justice, "given that the conviction rests on aguilty plea given when Mr O'Rourke did not appreciate the nature of the charge."28[21] Ms O'Hagan submitted that the circumstances surrounding the decision inTongalahi involved a much more serious set of facts than here. She also points outthat there was an appeal against sentence in Tongalahi, which enabled the Court toresentence the defendant, which is not the case here. Ms O'Hagan urged the Court tofollow the approach of Palmer J in O'Rourke.[22] I consider the reasoning in O'Rourke applies in this case. The appellant in thiscase pleaded guilty on the mistaken understanding that it was his third or subsequentoffence. In terms of the legislation, this was not the case. As such he did not fullyappreciate the nature of the charge at the time of entering his guilty plea. This gaverise to an unfairness. This cannot be said to be a case where the appellant "fullyappreciated the merits of the position and made an informed decision to plead guilty".I am also satisfied this is a case where there is a "reasonable possibility" that a more24 At [14].25 Tongalahi v Police, above n 18, at [21].26 O'Rourke v Police [2023] NZHC 1805.27 At [6].28 At [7].favourable verdict might have been delivered if nothing had gone wrong, in this casein respect of the ultimate sentence that was imposed.[23] As such, I consider a miscarriage of justice has occurred in this case. Itherefore quash the conviction in respect of the 23 June 2018 offending.29[24] The Court then has a broad discretion as to next steps. In this case I considerthe appropriate outcome is to direct under s 234(2) of the CPA that a judgment ofconviction be entered for a different offence, namely a charge under s 52A(1)(a)(ii)and s 52A(3).[25] The charging document in respect of which the appellant pleaded guiltyreferred to s 52A(1)(a)(i)30 and s 52A(5). As noted, this was in error, and the chargeought to have referred to s 52A(3), which mandates a six-month period ofdisqualification, not s 52A(5), requiring a two-year disqualification. However, this isthe only respect in which the appellant appeals against his conviction. It is undisputedin all other respects that he was guilty of the charge, and not contended otherwise onappeal. This being the case, I am satisfied that the appellant could have been foundguilty of the different offence and the trial Judge must have been satisfied of thesefacts as well.31[26] On making such a direction, the appeal Court may impose a sentence that isallowed by law, or remit the proceeding to the sentencing court to impose a sentence.32I consider it is appropriate to impose a sentence at this juncture. I turn now to considerwhat that sentence should be.[27] The respondent submits that while the District Court would not have beenbound to impose two years' disqualification if the charge had correctly referred tosubs (3) rather than subs (5), it could still have chosen to do so. The respondent pointsout that s 80 of the Act, applicable to any offending involving "road safety", permits a29 Criminal Procedure Act 2011, s 233(2).30 As noted above at n 1, this appears to be an error and the correct charge was under s 52A(1)(a)(ii).As noted, nothing turns on this point.31 Criminal Procedure Act, s 234(2).32 Section 234(5).court to impose a period of disqualification "for such period as the court thinks fit", inaddition to any other sentence or disqualification imposed.[28] I am not persuaded by this argument. The sentence was imposed against thebackdrop that the appellant was believed to have committed two qualifying offencespreviously, and s 52A(5) was therefore the operative provision. The appellant pleadedguilty to a sentence indication on that basis. All parties proceeded on the basis that atwo-year disqualification was mandatory, and that disqualification was therefore notseriously disputed, or indeed disputed at all. The only aspect on which the appellant'scounsel at that time addressed the court was in relation to whether the two-yeardisqualification under s 52A ought to be cumulative or concurrent with respect to anyother disqualification, as the appellant was in jeopardy of a six-month disqualificationfor a separate charge of dangerous driving.[29] However, as noted, the charge ought to have referred to s 52A(3), whichmandates a six-month period of disqualification, not s 52A(5), requiring a two-yeardisqualification. As such, the sentence ought to have been a six-monthdisqualification. I do not consider a higher period of disqualification would seriouslyhave been considered but for the mistaken understanding that it was the appellant'sthird or subsequent offence against the provision, nor do I consider at this time thatany longer period was necessary or appropriate.[30] I am satisfied that the appropriate sentence in respect of this charge was aperiod of six months' disqualification, and this is the sentence I impose for thisamended charge. This was to be served cumulatively on any disqualification imposedin respect of the separate charge for dangerous driving. A six-month disqualificationwas imposed in respect of that charge at the time and I do not interfere with thatsentence.[31] Accordingly, I quash the appellant's conviction for the 23 June 2018 offendingand direct that a judgment of conviction be entered for an offence under s 52A(1)(a)(ii)and s 52A(3) in its place. In respect of that conviction, I impose a sentence of sixmonths' disqualification, to be served cumulatively on the six-month disqualificationimposed in respect of the separate charge for dangerous driving.Appeal of convictions for driving while disqualified charges[32] As is apparent, I have found that the two-year disqualification period wasimposed in error, and the correct period of disqualification ought to have been sixmonths. The appellant would have finished the term of disqualification around22 February 2020, the six months being cumulative on the six-month disqualificationfor dangerous driving.[33] The respondent accepts that the appellant would not have been driving whiledisqualified at the time of the latter two charges, and does not oppose the appeal inrespect of those charges.[34] If the correct sentence had been imposed, the appellant's period ofdisqualification would have ended around 22 February 2020. The appeals againstconviction for the charges for driving while disqualified on 14 August 2020 and26 September 2020 are allowed. Those convictions are set aside and I direct that ajudgment of acquittal is entered in respect of those charges.33Conclusion[35] The appeal against conviction for failing to stop when required is allowed. Theappellant was incorrectly charged and did not fully appreciate the nature of the chargeat the time of entering his guilty plea. This gave rise to an unfairness and I am satisfiedthere was a miscarriage of justice in this case.[36] I quash the conviction in respect of the 23 June 2018 offending and direct thata judgment of conviction in respect of that offending be entered for an offence unders 52A(1)(a)(ii) and s 52A(3) in its place. I impose a sentence of six months'disqualification, to be served cumulatively on the six-month disqualification imposedin respect of the separate charge for dangerous driving.[37] As a result, the appellant would not have been driving while disqualified whenstopped by police on 14 August 2020 and on 26 September 2020. Those convictionsare set aside and the appellant is acquitted in respect of those charges.33 Pursuant to s 233(2) and (3)(a) of the Criminal Procedure Act.Result[38] The appeal against conviction for failing to stop when required is allowed. Theconviction is quashed and a judgment of conviction under s 52A(1)(a)(ii) and s 52A(3)is to be entered in its place. A sentence of six months' disqualification from driving isimposed in place of the two-year disqualification, to be served cumulatively on the sixmonths' disqualification imposed in respect of the charge of dangerous driving. Thoseperiods of disqualification have now been served.[39] The appeals against the convictions for driving while disqualified are allowed.Those convictions are set aside and a judgment of acquittal is entered in respect ofthose charges.____________________Grice JSolicitors:Luke Cunningham & Clere, Wellington