‘Failing to stop’ needs to be taken seriously

NZPA - Editor, Steve Plowman | Fri October 1st, 2010

Each year, Police engage in between 2,000 and 2,500 vehicle pursuits.

In the last 14 years for which statistics are available, the number of occasions in which officers have had to chase a fleeing vehicle for failing to stop has increased 389%.

About one in four pursuits end in a crash while a further 28% are abandoned.

Considering that police officers make approximately 3.5 million traffic stops a year, a percentage of .07% of drivers who flee seems miniscule.

In sheer mathematical terms it is. But the devil is in the detail.

In the first eight and a half months of this year (time of writing), 260 people had died in road crashes – 12 as a result of fleeing drivers.

So, in that time, .07% of drivers, who would otherwise be stopped (those fleeing), caused 4.6% of the total road toll.

The figures speak for themselves. Percentage-wise, fleeing drivers are massively over-represented in killing people on our roads.

The annual cost of road-related deaths and injuries is $3.8 billion.

No penalty

One in every four drivers appearing before the courts on ‘failing to stop’ charges escapes without any penalty.

In isolation, this suggests a very lenient approach by the judiciary but statistics can be misleading and in this instance they are.

The charge of failing to stop is usually a ‘precursor’ or ‘tandem’ charge to more substantive charges such as careless or reckless driving and is treated as such by the courts.

Police officers spoken to by Police News confirmed this but said there was a level of “frustration” that ‘failing to stop’ on its own is treated so leniently.

They feel this sends the wrong message to those who might be tempted to flee police in the first instance.

After all, every failure to stop can so easily lead to fatalities, especially with a speeding component – which is almost a given.

Fines of between $100 and $200 are common despite judges having a maximum penalty of $10,000 at their discretion.

Conviction and discharge without a fine is also common.

Penalties

The current maximum penalties for careless/dangerous/reckless driving causing injury or death, illegal street racing causing injury or death, drink/drug driving causing injury or death, and failing to stop after a crash when someone is injured or killed are:

• A term of imprisonment not exceeding five years; or the courts on ‘failing to stop’ charges escapes without any penalty.

In isolation, this suggests a very lenient approach by the judiciary but statistics can be misleading and in this instance they are.

The charge of failing to stop is usually a ‘precursor’ or ‘tandem’ charge to more substantive charges such as careless or reckless driving and is treated as such by the courts.

Police officers spoken to by Police News confirmed this but said there was a level of “frustration” that ‘failing to stop’ on its own is treated so leniently.

They feel this sends the wrong message to those who might be tempted to flee police in the first instance.

After all, every failure to stop can so easily lead to fatalities, especially with a speeding component – which is almost a given.

Fines of between $100 and $200 are common despite judges having a maximum penalty of $10,000 at their discretion.

Conviction and discharge without a fine is also common.

Penalties

The current maximum penalties for careless/dangerous/reckless driving causing injury or death, illegal street racing causing injury or death, drink/drug driving causing injury or death, and failing to stop after a crash when someone is injured or killed are:

• A term of imprisonment not exceeding five years; or page screamed: two killed in police chase. TV and radio stations led with fatal police chase. Thankfully, the Wellington newspaper The Dominion Post put the blame where it squarely lay; with their front page heading: moron’s devastating actions.

Negativity

In the face of such negativity it is no wonder that frontline officers may feel a sense of unease over being demonised for doing no more than carrying out their oath to protect the public.

This damned-if-you-do and damned-if-you-don’t approach to pursuits means officers are fearful about criticism and possible repercussions to their career when a fleeing driver crashes – sometimes with fatal consequences for innocent parties.

Not to mention the fact that police officers are putting their own lives at risk in trying to apprehend a fleeing driver.

Police Association President Greg O’Connor said that even the term ‘police pursuit’ is a misnomer.

“It wrongly puts the emphasis on the police’s involvement and infers they are somehow to blame.”

He favours renaming them “fleeing driver incidents” as an indication that the fault lies squarely with the fleeing driver who has chosen to ignore the law.

Canterbury District Commander and former National Road Policing Manager Superintendent Dave Cliff agrees.

Mr Cliff calls pursuits what they are: “Criminal pursuits”.

Attitudes need to change

Mr Cliff said there are no winners in pursuits and “attitudes had to change.”

Police pursuit policies ride a fine line between ensuring the safety of the public and apprehending an offender who is placing the public at risk.

There is clearly a belief on the part of some drivers that if they drive fast enough and dangerously enough, police will be forced to abandon the pursuit because of the current policy.

The outcome is, all too often, needless and tragic deaths.

The Association believes there is a need to restore in potential offenders a belief that if they refuse to stop for police, they will face very tough penalties when caught.

One officer said that he had apprehended drivers after high-speed chases only to be faced with the comment from the driver: “But you’re not supposed to be chasing me as I was going too fast.” Think moron.

Those who flee play what they seem to regard as a ‘cat and mouse’ game – and we all know how that ends.

Inadequacy of penalties

Canterbury Area Commander Inspector Derek Erasmus, a veteran police officer, has a wealth of experience in dealing with pursuits.

Last year he told Parliament’s Transport committee that the biggest problem in terms of public safety and policing was the “inadequacy” of penalties for drivers who fled from police.

“Basically, they’re laughing in our faces,” he said.

The committee was at the time considering two bills: Police Minister Judith Collins’

Vehicle Confiscation and Seizure Bill and Transport Minister Steven Joyce’s Land Transport (Enforcement Powers) Amendment Bill – both of which were designed to strengthen the laws around illegal street racing.

Association submission

The Association submitted the law should be strengthened for displaying unauthorised (false or stolen), deceptive or obscured plates and the non-disclosure (by the owner) of who was driving a vehicle involved in an offence.

Displaying unauthorised, deceptive or obscured plates now carries a penalty of 25 demerit points.

Unfortunately, it’s a sad fact that some parents who are the registered owners of vehicles, which flee from police, then seek to aid their offspring’s offending by refusing to say who was driving their vehicle.

Think falling apples and trees. Police are only able to demand after the event (under section 118 of the Land Transport Act 1998) that the owner identifies the driver.

The owner almost always refuses to do so. The owner is then liable for a fine of up to $10,000.

The Land Transport (Enforcement Powers) Amendment Act 2009, which came into force last December, subsequently doubled the fine to $20,000.

Futility

This lift in the maximum penalty is futile in light of the courts’ adherence to low fines; the fact that they will not in many cases be complied with; and, in the context of somewhat higher sanctions for failure to stop, will simply exacerbate the offender’s calculation that he or she has ‘nothing to lose’ by trying to evade police.

The Association believes the legislation falls short of the message it should be sending. The Association favours mandatory licence suspension, immediate impoundment of the vehicle involved (with liability for costs), and serious fines, which on default will result in the confiscation and sale of the vehicle.

There must be a sufficiently strong incentive for the vehicle owner to co-operate with police and also to remove any perceived advantage for the driver to seek to evade police.

The Act changed the penalties for failing to stop for a police officer as follows:

• Failing to stop becomes an aggravating factor, which must be taken into account at sentencing for dangerous and/or reckless driving offences;

• A mandatory three-month minimum driver licence disqualification for failing to stop, if a repeat offence or if accompanied by excessive speed or dangerous driving.

This would be in addition to any other disqualification given, and would not run concurrently;

• A mandatory 12-month licence disqualification and a term of imprisonment not exceeding 3-months for a third or subsequent failure to stop offence;

• A 28-day vehicle impoundment for ‘failing to stop’.

Pursuit abandonment trigger

A failure to stop accompanied by excessive speed and dangerous driving is a scenario where (generally speaking) police are currently expected to abandon a pursuit.

Such a scenario means police would generally have to rely on the owner actually agreeing to identify the driver after the event, which is why the Association submitted that the owner who fails to disclose who was driving should face the same penalties as the fleeing driver.

The legislation currently fails to acknowledge that the potential for fatalities arises with every failure to stop.

The Association has lobbied to have the first offence carry a mandatory licence suspension of at least three months, mandatory impoundment of the vehicle involved for 28 days (irrespective of who was driving), and liability, where there are any aggravating factors such as reckless/dangerous driving, to a penalty of imprisonment.

Penalties for second and subsequent offences should ramp up sharply from that starting point.

The offence should also be a qualifying offence in terms of sections 128 and 129 of the Sentencing Act 2002, placing the offender’s vehicle at risk of confiscation.

More fleeing drivers

Frontline police officers spoken to by Police News – from Road Policing, Strategic Traffic Units and frontline response groups, all said that there had been an increase in the number of drivers willing to flee police.

Police officers say deterrence is paramount.

“Doubling the penalty for causing death through drunk or reckless driving is a powerful message to send,” a senior officer with 27 years experience, told Police News.

Others say penalties need to have even more teeth if behavioural change is to result.

Senior Sergeant Eric Davy, Quality Road Policing and a Specialist Project Manager in the Tasman District, is one of them.

Mr Davy has 41 years experience in Road Policing. The frustration in Mr Davy’s voice at picking up the pieces after fleeing drivers have done their worst is evident.

He is not one to mince his words. “Frankly, until the Government gets some intestinal fortitude this situation will continue.

If the Government took a stronger line by having legislation with minimum penalties instead of maximum penalties and that was then backed up by the judges adhering to those tougher penalties we’d be a lot better off,” he said. Think fiddling while Rome burns.

Car crushing

“They have to get tough on drivers who flee and I’m not talking about 28 days impoundment of the vehicle here either – I’m talking about actually crushing the vehicle the first time a driver flees. You need to have a penalty that is going to make these guys sit up and think a bit,” he said.

NZ Police has reviewed its pursuit policy four times in the last six years, the latest of which took place in July this year.

The Independent Police Conduct Authority (IPCA) undertook a review in 2007. Its results were published in October 2009.

The IPCA focused its attention on pursuits, which resulted in serious injury or death.

Stolen vehicles

The IPCA report recommended a policy change to provide what it termed “clearer guidance” to officers on when a pursuit should be started.

It suggested that the “principal factor” in whether police pursued an offender was the risk to public safety.

Police have taken those recommendations on board and changes to the policy are expected by November.

They are likely to include:

• Limiting the number of vehicles involved in a pursuit;

• Expanding the abandonment criteria; and

• Abandoning pursuits once an offender’s identity was known so an arrest could be made later.

The IPCA review analysed 137 pursuits over a period of five years from December 2003-2008.

During that period, 24 people died and 91 received serious injuries. Most pursuits involved traffic offences, though 31 were initiated as a result of known or suspected criminal offending (mostly car conversion or property offences).

Relatively few pursuits involved evidence of serious crimes other than those associated with the offender’s driving during the pursuit.

13 reports

The Independent Police Conduct Authority has released 13 reports relating to police pursuits since early 2009 – seven have exonerated police and six found the chase should have been abandoned.

One Police review, gleaned from statistics between May 2004 and May 2007 found that in 99% of cases there wasn’t any serious injury or fatality associated with the outcome of the pursuit.

Twenty-three percent (23%) of all vehicles involved in pursuits in that three-year period were stolen.

Fatalities to those in offender vehicles accounted for 0.2% of all pursuits.

Most of the drivers were young men, many of whom were unlicensed or disqualified and had criminal records.

Young drivers make up 14.5% of New Zealand’s population and 16% of all licensed drivers.

Between 2000-2008 the number of people killed or seriously injured in a crash where a young driver was at fault increased by nearly 17%.

In 2008 they were involved in around 38% of all serious injury crashes.

The IPCA report questioned whether police should start high-speed chases for minor offences such as speeding, property theft or suspicion of crime.

This line of thinking did not find favour with officers spoken to by Police News.

The unknown driver As one said: “When someone runs a red light and takes off at speed you don’t know why they have done that. It could be that they’ve kidnapped someone or are wanted for a serious offence. That’s the unknown.

If we let them run we are effectively condoning an offence. Then you’ve got anarchy on the roads.”

Police Association President Greg O’Connor said pursuit policies are hampering the ability of police officers to do their job.

“The pursuit policy has sent the wrong message to offenders and it has led to more being willing to give fleeing a go, because they reason that if they go fast enough then at some point the police will have to abandon the chase.

The end result is that we are, perversely, making the roads less safe by putting so much emphasis on the actions of police and thereby encouraging drivers to have a go at outrunning patrol cars,” he said.

“At the moment all the incentive is on the criminal to plant the boot and that has got to change,” he added.

Complex issue

It’s a complex issue involving young drivers without the skills to handle high-powered killing machines, coupled with a blatant disregard for others and the law.

Some officers believe there is a link between young drivers gaming pursuits where the virtual world consequences are inevitably far less than in the real world. Game over.

The Government has gone some way towards trying to address some of the issues.

In March, Transport Minister Steven Joyce announced that as part of the 10-year road safety plan Safer Journeys the Government would consider:

• Investigating vehicle power restrictions for young drivers;

• Improving and increasing access to road safety education for young drivers;

• Tightening the restricted licence test to encourage novice drivers to do approximately 120 hours of supervised practice, before driving solo; and

• Raising the driving age to 16.

Starting point

Many officers will agree that these are a good starting point. Officers spoken to by Police News said that the overarching principle should be that driving is a privilege not a right and it should be earned only after defensive driving targets have been completed.

Most thought 16 too young to have a driver’s licence.

Justice Lowell Goddard’s IPCA report concluded with the words: “It is also important to acknowledge that pursuits start when drivers fail to respect the law and stop for Police.

When pursuits end badly, it is those drivers who must bear the responsibility.”

Police Minister Judith Collins brought some balance to the issue at the time by saying: “There may well be consideration given, for instance, to whether fleeing from police is sufficiently seriously dealt with by the courts.”

That may well be a boomerang heading back in the Government’s direction given the comments of police officers and judges who are jointly feeling hamstrung by the leniency of current laws when it comes to those who kill and maim on our roads. (See the article on page 255 to read more on that topic).

That aside, the respective comments by Justice Lowell and Ms Collins have a distinct ring of truth about them.

Ultimately, the driver who elects to flee a lawful request to stop is responsible for what happens beyond the point of initiation.

The issue of fines

Canterbury Area Commander and Road Policing specialist Inspector Derek Erasmus told a Parliamentary Transport subcommittee last year that the effect of increasing fines would be of little use if courts failed to follow up by imposing them.

One might also add – and stop writing them off.

So let’s have a look at the issue of fines. Police officers tell me that fines only work when they are used in tandem with demerit points.

They certainly don’t work if judges are busy writing them off or replacing them with community service.

Research for this article revealed that in many cases that is exactly the approach of some of the judiciary.

Judges have replaced large fines with community sentences where each hour of fine remitted is equivalent to the offender working for $50 an hour. That’s right $50 an hour. That equates to a $104,000 salary for a 40-hour week. Not bad for picking up litter.

Ignoring fines

An officer with three decades of policing experience told Police News: “Many of these drivers who flee can’t afford the fines, so they just ignore them until such time as the court wipes them anyway.

Again, it’s the same pattern. They know that if they evade responsibility in regard to the fine – mirroring their original behaviour of fleeing - that eventually the courts will just give up.

This sort of response does nothing to support police trying to stop the carnage,” he said

Here are the facts…

Judges are obliged to consider ‘means to pay’ when imposing fines and under this model fines imposed by courts in relation to fleeing drivers bear no resemblance to the $10,000 maximum that can be imposed.

Fines are generally low with some judges preferring disqualification from driving as part or all of a penalty.

Coincidentally, New Zealand courts wiped almost $100 million of offender’s fines and reparations in the year to January 2010 – or 16% more than the previous year.

To put this in context – five years ago the total wiped was $37 million.

Swapping penalties

One young Auckland man had $12,500 written off his accumulated traffic fines while Whangarei man Shane Bishop, who owed $41,500 in unpaid fines had $15,000 swapped for 300 hours community work – a rate of $50 per hour.

Judge Simon Maude, who was presiding that day, also wiped other offenders’ fines of $7,015 and $3,280 in exchange for 150 hours and 50 hours community work respectively. Maybe it was Christmas.

This is not a new judicial phenomenon.

In December 2004, a Tauranga teenager had $20,000 in fines wiped for 400 hours community service.

He had accumulated 83 traffic offences in the previous three years.

Again the $50 an hour tariff applied. This left the teenager with $15,000 of outstanding fines, which he is required to pay off at $15 a week – meaning the Crown will get its final payment in 19 years.

This followed a similar case where a Rotorua teenager had $43,000 in fines similarly wiped in the Rotorua District Court.

This is not to say there is no merit in community work. Paying for it at a rate of $50 an hour seems an exorbitant stretch; no matter what sort of gloss you try and put on its possible efficacy in relation to rehabilitating offenders.

No intention to pay

One thing is sure. Some motorists receive fines they can’t afford, and don’t intend to pay, so receiving yet another fine has no impact.

Many of those in poverty stricken areas such as Whangarei, Kaikohe, Kaitaia and Dargaville are increasingly having their fines wiped because they cannot pay.

The NZ Herald recently reported that between April 1 and September 2009, a total of $3.5 million in outstanding fines were remitted in Northland, with $2.8 million exchanged for community work, $500,000 for imprisonment and $100,000 each for home detention and community detention.

Which begs the obvious question. What sort of additional message does this send to offenders?

One officer said that judges writing off or swapping fines really irked him. “These drivers often don’t own the cars but run up massive fines in the knowledge that if they keep adding to them, some judge somewhere along the line is going to write them off,” he said.

He added that the drivers often fear their car will be sold to pay fines but judges demonstrated a real reluctance to do so.

The reason for this reluctance lies in a legal precedent set some years ago in Otago Finance versus The Crown in which the court found that the Crown had no legal jurisdiction to seize and sell cars where a finance company had an interest in the vehicle.

$778 million owing

As at 30 April this year, half a million New Zealanders owed $778 million in fines and reparation.

Ninety percent (90%) are for traffic violations. About $400 million of the total is overdue. Most of defaulters are men under 29 years of age.

The Government has responded with legislation – the Courts and Criminal Matters Bill, which had its first reading in May.

The Bill seeks to improve the collection of civil debt. One of the three major initiatives contained in the Bill relates to ‘driver licence stop orders’, which will require an amendment to the Land Transport Act 1998.

This will allow a fine defaulter’s driver’s licence to be suspended until such time as the defaulter pays the outstanding fines.

If a person breaches a ‘stop order’ their vehicle can be impounded for 28 days.

If the new proposal is to work the Government might need to think about issuing judges with a ‘stop order’ of their own – effectively telling them to refrain from writing off defaulter’s fines. $100 million of write-offs in a single year is not a particularly good look for the meaningful administration of justice.

One might be forgiven for thinking that some of the judiciary are letting the side down.

Courts need to do their part Police Association President Greg O’Connor is adamant the courts need to do their part: “A motorist taking off at high speed is dangerous and it is high time he/she was made accountable by the courts for their irresponsible actions,” he said.

Mr O’Connor likened the idiocy of such drivers to “firing a gun off down the main street on a Friday night – somebody will die.”

Police Minister Judith Collins has made it very clear that police officers have her support on the issue.

She has said that a “very strong message” needs to be sent to fleeing motorists. Police officers may well be wondering when it is coming in tangible form in relation to those who show total disregard for others and endanger innocent lives when fleeing police.

This is not to say the Government has failed.

It has taken some first steps and they are welcome compared to what came before.

However, there needs to be a legislative leap if the message is to get through to the morons who flee.

There is a hint of ‘softly-softly’ with some of the legislation while other changes are admirable. It’s a fine balance and the Government is working its way through it, albeit like wading in treacle in some instances.

Attitude

There is an attitude by some that if they can go fast enough, police won’t chase them. They need to know they are wrong.

They need to also know that when they are apprehended for their “criminal pursuit”, to use Superintendent Dave Cliff’s phraseology, they will face the full force of the law.

The Association will continue to push for mandatory licence suspension, immediate impoundment of the vehicle involved (with the offender liable for costs), and serious fines which on default will result in the confiscation and sale of the vehicle.

Imprisonment should be an option.

At the end of the day, the fleeing driver must know that the Government and judiciary are as hot under the collar as the public and police are about this senseless waste of lives at the hands of morons and maniacs.

Red hot, not lukewarm - like some of the penalties.

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