Araia v Police - [2019] NZHC 3374

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-000039

[2019] NZHC 3374

BETWEEN
MOSES ARAIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 December 2019

Counsel:

W Hawkins for the Appellant C R Stuart for the Respondent

Judgment:

17 December 2019

JUDGMENT OF DOOGUE J

Introduction

[1] The appellant, Moses Araia, appeals against a sentence of seven months’ disqualification imposed1 by a Community Magistrate in the District Court at Hastings on 18 September 20192 for the following charges:

(a)driving while suspended;3 and

(b)driving in excess of the speed limit.4

1      A fine of $500 was also imposed.
2      Police v Araia DC Hastings CRI-2019-020-00065, 18 September 2019.
3      Land Transport Act 1998, s 32(1)(c); maximum penalty is three months’ imprisonment or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for at least six months.
4      Section 40; Land Transport (Offences and Penalties) Regulations, regs 3 and 4; and Land Transport (Road User) Rule 2004, r 5.1(1); maximum penalty is a fine not exceeding $1,000.

ARAIA v NEW ZEALAND POLICE [2019] NZHC 3374 [17 December 2019]

[2] A first appeal was filed in the District Court at Hastings. That appeal was not opposed by the Police. However, on 14 November 2019, the appeal was dismissed by Judge A J Adeane.5

[3] Mr Araia now appeals Judge Adeane’s decision, leave having been granted by Simon France J on 26 November 2019.

Approach on appeal

[4] Mr Araia appeals his sentence under s 253 of the Criminal Procedure Act 2011. That provision outlines the process for second appeals, though the principles are the same as for first appeals.

[5] The Court must allow Mr Araia’s sentence appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.⁶

[6] A sentence appeal is an appeal against a discretion and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.⁷ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.⁸

Background

[7] On 13 December 2018, Mr Araia was suspended from driving any motor vehicle for a period of three months due to having excess demerit points.

[8] At about 10:20 a.m. on Saturday, 23 February 2019, Mr Araia was driving along Takapu Road, Hastings. He made a sudden sharp turn into his home address on that road which caught the attention of an on-duty police officer.

5      Police v Araia DC Hastings CRI-2019-020-003122, 14 November 2019.
6      Criminal Procedure Act 2011, s 256(2).
7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]-[35].
8      Ripia v…

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.

Keep reading for free

Create a free CaseChat account to read Araia v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 3374
Decision Date: 17 December 2019

CaseChat Overview and Summary

Moses Araia appeals against the sentence imposed by the District Court, which upheld the decision of a Community Magistrate to disqualify him from holding or obtaining a driver's licence for seven months. The appeal concerns whether the Community Magistrate correctly exercised her discretion to substitute a community-based sentence for the disqualification. The court must consider whether there was an error in the sentence imposed and whether a different sentence should be imposed. The appeal hinges on whether the Community Magistrate erred in failing to consider relevant factors under s 94 of the Land Transport Act 1998 before declining to substitute a community-based sentence for the disqualification. The court found that the Community Magistrate had failed to consider certain mandatory factors under s 94, but nevertheless concluded that the sentence imposed was appropriate given Mr Araia's history of speeding and reckless driving. The appeal is dismissed.

Orders