Abera v Police

[2025] NZHC 2304

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-210

[2025] NZHC 2304

BETWEEN

KIFLAY ABERA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 August 2025
Appearances:	P K Hamlin and M L Hikuroa for Appellant N C Pearce-Bernie for Respondent
Judgment:	14 August 2025

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 14 August 2025 at 1.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

P K Hamlin, Barrister/M L Hikuroa, Auckland

Meredith Connell, Office of the Crown Solicitor, Auckland

ABERA v POLICE [2025] NZHC 2304 [14 August 2025]

[1]                 Mr Abera operates a taxi pursuant to the authority of a small passenger service licence issued under Part 4A of the Land Transport Act 1998 (the Act).1 The fact that he holds a transport service licence means he is subject to obligations under the Act that require him to take rest breaks during the course of, and at the end of, each day.

[2]                 Mr Abera breached these obligations by commencing work on 19 June 2024 when he had not taken the prescribed break after finishing work the previous day. He then failed to take a rest break during the day. Whilst parking his vehicle after he had finished work that day Mr Abera reversed into a signpost that then struck a pedestrian who was standing on a nearby footpath with his dog. He then continued reversing onto a road, where his vehicle collided with another vehicle. The driver of that vehicle was not injured but the pedestrian died of his injuries at the scene.

[3]                 Mr Abera pleaded guilty in the District Court to one charge of careless driving causing death2 and two charges of breaching his passenger vehicle licence.3 The latter alleged that he worked in excess of 13 hours continuously on one work day and did not have the required 10-hour break between work shifts.

[4]                 On 18 March 2025, Judge B R Pidwell sentenced Mr Abera to 230 hours of community work and disqualified him from driving for a period of 18 months4 The Judge also made an order requiring Mr Abera to pay reparation in the sum of $10,000 each to the family of the deceased pedestrian and to the owner of the vehicle with whom his vehicle had collided on the roadway.5 In addition, the Judge imposed a fine of $100 on each of the charges relating to the breach of licence.

[5]                 Mr Abera appeals against sentence. He does not challenge the sentence of community work. He has also paid an initial sum of $5,000 each to the deceased’s family and to the driver of the other vehicle in accordance with the Judge’s orders.6 However, he contends that the Judge should not have ordered him to pay reparation

1      The license was issued under s 30J(d) of the Land Transport Act 1998.

2      Land Transport Act 1998, s 38.

3      Section 79O(b).

4      New Zealand Police v Abera [2025] NZDC 7436.

5      At [36]–[37].

6 These are set out below at [13].

totalling $20,000 when he does not have the means to do so. He also contends that the period of disqualification is excessive.

The offending in greater detail

[6]                 Mr Abera breached the  terms  of  his  licence  by  working  for  16  hours  and 29 minutes on 17 June 2024 and for 14 hours and 39 minutes on 18 June 2024. He was then required to take a break of at least 10 hours before commencing work again. However, he began work on 19 June 2024 at 3.49 am after finishing work eight hours, 43 minutes earlier. He then worked until 4.16 pm without taking a mandatory 30-minute break.

[7]                 After dropping his last passenger off, Mr Abera drove to  a  carpark  in  Mount Albert. He then endeavoured to reverse his vehicle into a carpark. As he did so a pedestrian, Mr Jason McEwen, was walking his dog on a nearby footpath.      Mr Abera failed to control his vehicle. He reversed over a raised garden bed until his vehicle struck a signpost. This fell to the ground, striking Mr McEwen as it did so. Mr Abera then continued reversing his vehicle onto the roadway, where he struck a vehicle being driven by Mr John Thorner. The collision caused substantial damage to Mr Thorner’s vehicle.

[8]                 A subsequent inspection of Mr Abera’s vehicle showed that there were no mechanical issues that may have contributed to the collision with either the signpost or Mr Thorner’s vehicle.

The sentence

[9]                 In assessing Mr Abera’s culpability on the charge of careless driving causing death, the Judge considered that the fatigue from which he was undoubtedly suffering to be an aggravating factor.7 She said he had chosen to breach the terms of his licence by continuing to work without taking the breaks prescribed by the Act. The Judge considered this would have impaired his reaction time, his situational awareness and therefore made him a danger to other persons in the vicinity.8 She then observed:

7      New Zealand Police v Abera, above n 4, at [18].

8 At [19].

[20] This was not an accident without cause, and this was not a momentary lapse of inattention. This was a decision to drive outside of the boundaries of his permitted licence, those boundaries specifically imposed by law to prevent exactly what has happened on this occasion, namely driver fatigue causing harm.

[10]              The Judge considered that a further  aggravating  factor  was  the  fact  that Mr Abera is a professional driver. The community and the courts therefore expected him to observe a higher standard than would be the case for a non-professional driver. A further aggravating feature was the fact that the two victims suffered serious consequences as a result of Mr Abera’s careless driving. The Judge considered these factors placed Mr Abera’s culpability in the highest level of carelessness for a charge of this type.9

[11]              The Judge took a starting point of 360 hours community work.10 She then applied a discount of 35 per cent to reflect the guilty plea, expressions of remorse and previous good character.11 This produced the end sentence of 230 hours community work.

[12]Addressing the issue of disqualification, the Judge observed:

[33] In terms of the disqualification, the mandatory minimum disqualification is six months. In my view, a lengthy disqualification is what is needed here. It was the driving that caused the tragedy, and one of my jobs is to protect the public. It is to keep Mr Abera off the road to prevent something like this happening again. One consequence will be the loss of his small passenger licence, and judges like me have been overturned by higher courts when we impose long disqualification periods that are seen to be excessive by the higher courts. Therefore, I will impose a disqualification of 18 months from today.

[13]              The Judge then turned to the issue of reparation. Mr Abera had raised the sum of $10,000 to pay to Mr McEwen’s family. The Judge considered that he should also be required to contribute to Mr Thorner’s loss because his vehicle had been written off and he was required to buy a new one. He either did not have, or was not covered by, an insurance policy.12 The Judge explained her reasoning in awarding reparation to both victims in the following way:

9 At [23].

10 At [32].

11 At [32].

12 At [35].

[36] There is no easy way of assessing harm or trying to work out whose harm is worse than others. An amount of money will not bring Jason back. So, what I am going to do is award emotional harm reparation to [Mr McEwen’s auntie] on behalf of her family as a whole and also to Mr Thorner in equal amounts of $5,000, payable within 24 hours, and then an ongoing payment to each in the sum of $200 per month – so, that is $10,00 each – until each has received $10,000. So, it is $5,000 to Mr McEwen’s family and to Mr Thorner immediately, and an ongoing payment up to $10,000 over time. That, in my view, is the best way of trying to recognise the harm caused, noting that there can be no formula which will address the competing concerns of everyone in this case.

Was the period of disqualification excessive?

[14]             There is no guideline judgment of the higher courts that provides assistance in setting the appropriate period of disqualification for offending of this type. In Leaupepe v Police, which involved the offence of dangerous driving causing death, Mackenzie J observed13:

[8]        The principal objective of disqualification is public safety. Many of the purposes and principles of sentencing  in  ss  7  and  8  of  the  Sentencing Act 2002 can have little application when assessing the length of disqualification and others must receive limited weight because of public safety concerns.

[9]        The extent of the discretion available to the sentencing Judge is, for these reasons, less fettered than that in respect of a conventional sentencing decision. A comparison with other cases is therefore a less reliable guide than is the case for a conventional sentencing.

[10]      The Court of Appeal has provided some guidance to when a period of disqualification will be manifestly excessive. In Hitchens v Police the Court noted two competing considerations:14

(a)long periods of disqualification typically leave little hope for offenders; and

(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

[11]The task of the sentencing Judge, and an appellate Court on review, is to effect an appropriate balance between those considerations. The fixing of that balance depends upon the circumstances of the particular case.

[15]              Ms Hikuroa submits on Mr Abera’s behalf that the culpability of the offending in the present case was very low because it resulted from a momentary lapse of

13     Leaupepe v Police [2015] NZHC 1766.

14     Hitchens v Police CA380/03, 25 March 2004.

attention on Mr Abera’s part. She says it occurred when Mr Abera mistakenly reversed his vehicle in the belief that it was in forward gear.

[16]              I do not accept this submission because it is inconsistent with the summary of facts. This records:

After dropping off his last fare at Grafton Auckland City, the Defendant drove his Taxi to New North Road, Mount Albert where he entered a one-way carpark.

As the Defendant travelled around the carpark, preparing to park, the first victim Jason McEwen was standing on the footpath nearby the carpark entrance, allowing his leashed dog to sniff the raised garden bed which separated the footpath from the carpark.

The Defendant slowly navigated the corner before reversing backwards towards the raised garden.

The Defendant slowed as he angled his vehicle wheels towards the carpark ahead of him, before his speed suddenly increased, at which point, he reversed over the raised garden colliding with a signpost.

As the signpost fell down, it hit [Mr] McEwen in the head with such force causing him to collapse onto the pavement.

The Defendant continued reversing onto New North Road, where the rear right side of his vehicle collided with the rear left side of the second victim,    John Thorner’s vehicle.

[17]              There is nothing in the summary to  support  Ms Hikuroa’s  argument  that  Mr Abera believed his vehicle was in forward gear when it struck the signpost. What appears to have happened is that, for whatever reason, Mr Abera put his foot on the accelerator as he reversed it into the carpark. This caused the vehicle to travel over the garden bed and strike the signpost. The vehicle then continued to travel backwards in reverse gear until it collided with Mr Thorner’s vehicle.

[18]              I would not classify this series of events as constituting a momentary lapse of attention or judgment. Rather, it was a poor piece of driving caused by Mr Abera accelerating the vehicle whilst it was in reverse and then failing to stop the vehicle before it struck both the signpost and Mr Thorner’s vehicle.

[19]              Further, the fact that Mr Abera did not face any charge relating directly to the collision with Mr Thorner’s vehicle is immaterial for sentencing purposes. He pleaded

guilty to a charge of careless driving causing death. His culpability on that charge is not to be measured only up until the point at which the vehicle struck the signpost because he continued to drive carelessly after that point. This led to the collision with Mr Thorner’s vehicle.

[20]              The culpability inherent in an offence of careless driving causing death will fall within a wide range. At the lower end of the scale are offences committed through a momentary lapse of attention. Mr Abera’s offending does not fall within this category for the reasons I have given. At the upper end of the scale are lengthy and sustained pieces of careless driving that result in death. Mr Abera’s offending does not fall within this category either. However, it was sufficiently sustained that I consider the Judge was correct to conclude it fell towards the upper end of the range. I note that counsel for the respondent on the appeal submits that it could be described as moderate.

[21]              In assessing Mr Abera’s future level of risk, and thus the appropriate length of any period of disqualification, it needs to be remembered that he was 64 years of age the time of the offending and had no previous convictions. Further, there is nothing to suggest he presents generally as a risk of danger to other road users. And, although Mr Abera is a professional driver, he did not commit the offence whilst engaged in professional driving activities. Rather, he committed it after he had finished work for the day.

[22]              Taking these factors into account I consider the relatively low level of future risk that Mr Abera poses did not justify a period of 18 months disqualification. I consider a period of no more than 12 months was required. This is still a lengthy period given that Mr Abera depends on his licence to earn an income.

Did the Judge err in awarding reparation totalling $20,000?

[23]              Mr Abera has raised an issue as to whether the Judge ought to have made an order requiring him to pay reparation to Mr Thorner when he did not face a charge relating to the collision with Mr Thorner’s vehicle. However, I have no doubt that Mr Thorner was a victim of Mr Abera’s offending. As I have already observed,

Mr Abera was still driving his vehicle carelessly when it struck Mr Thorner’s vehicle even though he did not face a charge relating to that aspect of his driving.

[24]              The cost of repairing Mr Thorner’s vehicle amounted to approximately $9,000, which was not much less than the sum Mr Thorner had paid for it three months earlier. This led Mr Thorner to conclude it was uneconomic to repair the vehicle. He elected instead to take out a loan to purchase a replacement vehicle for the sum of $14,000. Mr Thorner has therefore suffered economic loss as a result of Mr Abera’s careless driving.

[25]              The Judge did not obtain any information about Mr Abera’s financial means before she made the orders for payment of $5,000 to each of the victims by way of instalments. She knew only that he had been able to raise the sum of $10,000 to pay to Mr McEwen’s family. The issue for present purposes is whether Mr Abera had the means to pay additional reparation to both victims by way of the instalments ordered by the Judge.

[26]              The fact that Mr Abera was to be subject to a lengthy period of disqualification meant that he would not be able to earn income in his usual occupation as a taxi driver. This is likely to have had a significant impact on his ability to meet any order requiring him to pay reparation in the future. The Judge endeavoured to ensure that he would be able to make reparation payments by limiting them to the sum of $200 per week. However, in the absence of any information about Mr Abera’s current financial position, the Judge would not have known whether he could afford to meet those payments.

[27]              I therefore propose to exercise the power  under  s  251(2)(c)  of  the  Criminal Procedure Act 2011 to remit this aspect of the orders for reparation to the District Court so that it can determine whether Mr Abera has the means to pay the sum of $5,000 to each of the two victims by instalments as the Judge ordered.

Result

[28]              The appeal against sentence is allowed. The order disqualifying Mr Abera from driving for 18 months is set aside. In its place I substitute an order disqualifying him from driving for a period of 12 months from the date on which he was sentenced.

[29]              I remit the order requiring Mr Abera to pay reparation totalling $10,000 to the two victims by way of instalments to the District Court for reconsideration in light of Mr Abera’s current financial situation.

Lang J