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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 2304
Decision Date: 14 August 2025

CaseChat Overview and Summary

Kiflay Abera appealed against his sentence for careless driving causing death and two charges of breaching his passenger vehicle licence. The District Court had sentenced Mr Abera to 230 hours of community work, disqualified him from driving for 18 months, ordered him to pay $10,000 in reparation to the deceased pedestrian’s family and to the driver of the vehicle with which his vehicle had collided, and imposed a $100 fine on each of the charges relating to the breach of licence. Mr Abera did not challenge the sentence of community work but contended that the period of disqualification was excessive and that he should not have been ordered to pay reparation totalling $20,000 when he did not have the means to do so. The appeal was allowed in part. The order disqualifying Mr Abera from driving for 18 months was set aside and replaced with an order disqualifying him from driving for a period of 12 months. The order requiring Mr Abera to pay reparation was remitted to the District Court for reconsideration in light of his current financial situation.

The key legal issues were whether the period of disqualification was excessive and whether the Judge should have ordered Mr Abera to pay reparation totalling $20,000 when he did not have the means to do so. The Court found that the period of disqualification was excessive and remitted the reparation order to the District Court.

The Court held that the period of disqualification was excessive. The period of disqualification was intended to protect the public and keep Mr Abera off the road to prevent something like this happening again. However, Mr Abera was 64 years of age and had no previous convictions. There was nothing to suggest he presented generally as a risk of danger to other road users. The Court considered a period of no more than 12 months was required. The Court held that the Judge should not have made an order requiring Mr Abera to pay reparation totalling $20,000 when he did not have the means to do so. The Judge did not obtain any information about Mr Abera’s financial means before she made the orders. The Court remitted the reparation order to the District Court to determine whether Mr Abera had the means to pay the sum of $5,000 to each of the two victims by instalments as the Judge had ordered.

The appeal against sentence was allowed in part. The order disqualifying Mr Abera from driving for 18 months was set aside and replaced with an order disqualifying him from driving for a period of 12 months. The order requiring Mr Abera to pay reparation was remitted to the District Court for reconsideration in light of his current financial situation.

Orders