Apiti v Police - [2013] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0027 [2013] NZHC 2349

BETWEEN DEAN APITI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 September 2013

Appearances: L F Walkington for Appellant
S N Cameron for Respondent

Judgment: 10 September 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 10 September 2013 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Almao Douch, Crown Solicitor, Hamilton

Counsel: L F Walkington, Hamilton

APITI v POLICE [2013] NZHC 2349 [10 September 2013]

[1] I heard this appeal yesterday. At the conclusion of the hearing I allowed the appeal and said that my reasons would follow, as they now do.

Introduction

[2] The Appellant was charged with driving while disqualified from holding or obtaining a driver licence (3rd or subsequent offence).1 As a general rule, conviction on this offence leads to a further period of disqualification for at least one year.2

[3] The Appellant pleaded guilty to the offence in March 2013 and was to be sentenced on 29 May 2013. As I understand it from counsel, about a week before that date she had filed written submissions seeking an order pursuant to s 94 Land Transport Act 1998 (“Act”) and an affidavit in support sworn by the Appellant on
1 May 2013 (“Appellant’s affidavit”).

[4] Subject to matters going to jurisdiction, s 94 confers discretion on the Court to impose a community-based sentence in lieu of a period of disqualification.3
Counsel for the Appellant informed me that Judge P R Connell (who determined the matter) heard from the parties on jurisdiction and briefly on the merits. The Judge delivered a reserved decision on 14 June 2013 determining jurisdiction in the Appellant’s favour, but declining the application. The Judge disqualified the Appellant for 12 months from the date of sentence and sentenced the Appellant to
80 hours’ community work. The period of disqualification has been suspended pending determination of this appeal.

[5] The Appellant appeals against the Judge’s refusal on the ground that he failed to give sufficient weight to relevant factors and, accordingly, erred in the exercise of his discretion under s 94. Although the Crown opposes the appeal, the Police took a “neutral stance” at first instance4 and Crown counsel advised me that the Crown was
content to leave the appeal in the Court’s hands.

1 Land Transport Act 1998, ss 1(a) and 32(4).
2 Ibid, s 32(4)(b).
3 Ibid, s 94.
4 Police v Apiti DC Hamilton CRI-2012-091-3344, 14 June 2012, at [28].

[6] For reasons given below, I accept counsel for the Appellant’s submission that the appeal should be allowed. One matter that has concerned me, however, is whether the Judge had the Appellant’s affidavit before him. The Court’s copy of the affidavit was not on the file before me and it is not referred to expressly in the District Court judgment so it may be that the Judge was unaware of it.

Section 94 of the Act

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: [2013] NZHC 2349
Decision Date: 10 September 2013

CaseChat Overview and Summary

The case of Apiti v Police involved Dean Apiti, who was appealing against a decision made by a District Court Judge. Apiti had been charged with driving while disqualified from holding or obtaining a driver's licence, a third or subsequent offence. The appellant pleaded guilty to the offence and was to be sentenced on 29 May 2013. However, about a week before the sentencing date, Apiti filed written submissions seeking an order under section 94 of the Land Transport Act 1998 and an affidavit in support, sworn by Apiti on 1 May 2013. The District Court Judge heard the matter and determined jurisdiction in Apiti's favour, but declined the application. The Judge disqualified Apiti for 12 months from the date of sentence and sentenced Apiti to 80 hours of community work. Apiti appealed against the Judge's refusal on the ground that he failed to give sufficient weight to relevant factors and, accordingly, erred in the exercise of his discretion under section 94.

The legal issues in this case involved the interpretation and application of section 94 of the Land Transport Act 1998, which allows the Court to impose a community-based sentence in lieu of a period of disqualification for certain offenders. The key question before the court was whether the District Court Judge had erred in his consideration of the appellant's application under section 94 and, if so, whether the appeal should be allowed.

The High Court found that the District Court Judge had indeed erred in his consideration of the appellant's application under section 94 of the Land Transport Act 1998. The court was not satisfied that the Judge had taken into account all of the evidence in the appellant's affidavit, or that he had given that evidence sufficient weight in his consideration of the matters listed in section 94(1)(b). The court also considered that the Judge had treated as aggravating factors matters that were irrelevant in the context of the appellant's application. Given this, the court was satisfied that it was appropriate to consider the matter afresh.

In conclusion, the appeal was allowed, and the Judge's order for disqualification was quashed. In accordance with the submissions of both counsel, the hours of community work imposed by the Judge were increased from 80 to 120. The appellant's period of disqualification was suspended pending the determination of this appeal.

Orders