O'Rourke v Police

[2023] NZHC 1805

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-15

[2023] NZHC 1805

BETWEEN

JUSTIN O’ROURKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 July 2023

Appearances:

Appellant in person

G J C Carter for the Respondent

Judgment:

11 July 2023

JUDGMENT OF PALMER J

Solicitors

BVA The Practice, Palmerston North

O’ROURKE v NEW ZEALAND POLICE [2023] NZHC 1805 [11 July 2023]

What happened?

[1]    Just after midnight on Sunday 19 March 2023, Police arrived at the Mobil Service Station in Bulls. Mr Justin O’Rourke, aged 33, jumped from the passenger’s seat into the driver’s seat of a car and accelerated quickly away. The Police activated their flashing lights to signal him to stop but say he “accelerated away quickly”, failed to stop, and “continued on Bridge Street towards SH 3 at high speeds”. Mr O’Rourke was 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 at Palmerston North, on charges of failing to stop for red and blue flashing lights, driving while forbidden and another charge of wilful damage which appears to have related to a separate incident.

[3]    The charge of failing to stop was originally laid on the basis that it was Mr O’Rourke’s third or subsequent offence. But, at the sentencing, Mr O’Rourke was advised by the duty lawyer that it should have been charged as his such first offence which would only incur a fine. Counsel for the Police appears to have agreed because the charge was amended accordingly. Mr O’Rourke pleaded guilty. But he was surprised that Judge W K Hastings then disqualified him from driving for six months.1 The Judge simply pronounced sentence, without providing any reasoning.

Submissions

[4]     Mr O’Rourke appeals the sentence for failing to stop. He submits he pleaded guilty on the basis that the offence would incur a fine only. It was a deal done quickly and he just wanted to have his charges sorted out. He did not know he would be disqualified from driving if he pleaded guilty. If he is subject to disqualification, he wants to amend his plea.

[5]    Mr Carter, for the Police, submits the only way in which the Judge could have reached his sentence is by invoking s 52A(3) of the Land Transport Act 1998 (LTA):

1. If a person is convicted of a first offence against subsection (1)(a) or

(b) and committed the offence while exceeding the applicable  speed

1      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 or obtaining 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 guilty plea does not say he was exceeding the speed limit and there was no separate charge of that. It says he “accelerated away quickly” and “continued on Bridge Street towards SH 3 at high speeds”. That might give rise to an inference of speeding, but I do not consider that is clear beyond reasonable doubt. We do not know exactly where the offending is said to have occurred, what the speed limit was there, and what spped Mr O’Rourke was doing. Given Mr O’Rourke’s stance, Mr Carter accepts there could have been grounds for a disputed facts hearing. I consider that is a basis for upholding the sentence appeal.

[7]    Furthermore, while ss 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2) of the LTA were 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 or effect 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 be best 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 if satisfied there has been a miscarriage of justice for any reason. I consider the circumstances here constitute a miscarriage of justice, given that the conviction rests on 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 for red and blue flashing lights.

Palmer J