Aotearoa v Police - [2024] NZHC 2539

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-17

[2024] NZHC 2539

BETWEEN
ANAHERA AOTEAROA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 August 2024

Appearances:

M J Phelps for Appellant

L M Marshall for Respondent

Judgment:

5 September 2024

JUDGMENT OF McQUEEN J

[1] On 5 July 2024, in the Napier District Court, Ms Aotearoa was sentenced to nine months’ supervision and disqualified from holding or obtaining a licence for six months for a charge of failing to permit a blood specimen to be taken.1 Ms Aotearoa was found guilty of three charges, but on the other charges of failing to remain stopped and obstructing police, she was convicted and discharged.2

[2] Ms Aotearoa appeals against the sentence of supervision imposed on her on the basis there was no proper basis for its imposition and that it is manifestly excessive. The Police oppose Ms Aotearoa’s appeal and say that a sentence of supervision was appropriate.

1 Police v Aotearoa [2024] NZDC 15846. Land Transport Act 1998, ss 60(1)(a) and subs (2), and 72(1)(e): maximum penalty three months’ imprisonment or a $4,500 fine, and the court must order disqualification from holding or obtaining a driver licence for six months or more.
2 At [22]. Land Transport Act 1998, ss 52A(1)(b), 53(1) and 114: maximum penalty is a $10,000 fine for each charge.

AOTEAROA v NEW ZEALAND POLICE [2024] NZHC 2539 [5 September 2024]

[3]For the reasons below, I consider that Ms Aotearoa’s appeal should be allowed.

Factual background

The offending

[4] Ms Aotearoa was found guilty on the three charges following a judge-alone trial on 11 March 2024. The summary of the offending is drawn from the reserved judgment following that trial.3

[5] On 28 July 2022, Ms Aotearoa was driving her van at the Maraenui shops in Napier. Police were alerted by members of the public to the van because of Ms Aotearoa’s erratic driving. Ms Aotearoa’s position was that a rock had been thrown at her van, which broke the windscreen and that was why she pulled over at the Maraenui shops. A police officer pulled up in his vehicle nearby where Ms Aotearoa was parked. The officer approached the van and observed Ms Aotearoa, the only occupant in the van, in the driver’s seat. He observed smoke emitting from the driver’s window, which he says smelt like cannabis smoke. He also observed her doing something with her hands. He said she appeared to have been smoking something with her left hand, which she moved down to the centre of the vehicle on his approach, presumably to put it away.

[6] The officer asked Ms Aotearoa to get out of the vehicle and she refused to do so, saying she did not feel safe. He described her demeanour as “erratic”, “jittery” and that she “seemed nervous”. He said he spent three to five minutes trying to calm Ms Aotearoa and convince her to exit the vehicle. He then required…

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.

Continue reading Aotearoa v Police

Details

AGLC: Aotearoa v Police [2024] NZHC 2539
Case: [2024] NZHC 2539
Decision Date: 5 September 2024

CaseChat Overview and Summary

In Aotearoa v Police, the High Court considered an appeal against a sentence of supervision imposed by the Napier District Court. The appellant, Ms Aotearoa, was sentenced to nine months' supervision and disqualified from holding or obtaining a licence for six months for failing to permit a blood specimen to be taken, following an incident where she was suspected of driving under the influence of cannabis. Ms Aotearoa also faced charges of failing to remain stopped and obstructing police, for which she was convicted and discharged. Ms Aotearoa's appeal focused on the appropriateness of the sentence of supervision, arguing it was not properly justified and was manifestly excessive.

The court considered whether the District Court Judge had erred in imposing the sentence of supervision without clearly articulating that such a sentence would reduce the likelihood of Ms Aotearoa reoffending through her rehabilitation and reintegration, as required by s 46 of the Sentencing Act 2002. The court noted that while the Judge referred to the pre-sentence report recommending supervision, the report did not adequately explain how or why a sentence of supervision would address Ms Aotearoa's underlying offending behaviours or how it would reduce her risk of reoffending. The report also did not consider Ms Aotearoa's history of non-compliance with community-based sentences and her stated reluctance to engage with Corrections programmes.

The court concluded that the Judge had not properly considered whether a sentence of supervision would reduce the likelihood of Ms Aotearoa reoffending, particularly given her past non-compliance with supervision and her low assessed risk of reoffending. The court held that the sentence of supervision was manifestly excessive and should be quashed. Instead, the court imposed a conviction and discharge on the charge of failing to permit a blood specimen to be taken, while maintaining the remainder of the District Court's judgment.

Orders