Chaaya v Police - [2019] NZHC 3250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-455

[2019] NZHC 3250

BETWEEN
MICHAEL ABOU CHAAYA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 December 2019

Appearances:

T M Cooper and ILM Archibald for the Appellant J Herring for the Respondent

Judgment:

10 December 2019

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Ms T M Cooper and Ms ILM Archibald, Barristers, Auckland
Mr J Herring, Meredith Connell, Office of the Crown Solicitor, Auckland

CHAAYA v POLICE [2019] NZHC 3250 [10 December 2019]

[1]Mr Chaaya pleaded guilty to six charges of dangerous driving causing injury.1

[2] He was sentenced to 10 months’ home detention, 250 hours of community work and to payment of $16,000 in emotional reparation. He was also disqualified from driving for two years.

[3] Mr Chaaya appeals. His appeal is out of time but the respondent does not oppose leave in the circumstances.

Facts of the offending and decision on appeal

[4] The facts of the offending were summarised by Judge P J Sinclair at sentencing:2

This is an event borne of nightmares. A nightmare for each and every victim and their families and a nightmare for you, Mr Chaaya, which I have no doubt continues to replay in your mind, accompanied by the wish that you could turn back the clock.

On 20 September 2017 at 8.20 am you were driving a Nissan motor vehicle on the left lane along Taharoto Road. The road has a designated 50 kilometre per hour speed limit. You crossed the intersection of Taharoto Road and Shakespeare Road and entered Wairau Road. You accelerated heavily, increasing your speed to at least 87 kilometres per hour, pulling into the right lane, passing several cars, as you passed Westlake Girls High School. While still driving at excess speeds you crossed the intersection by the entrance to the school which is controlled by lights. You moved back to the left lane [after] passing several more vehicles which were slowing or had stopped, waiting to turn right into Forrest Hill Road. You then attempted to negotiate a moderate left bend at the Wairau Road, Forrest Hill Road intersection. You lost control of the vehicle. Your car mounted the kerb and continued along the footpath for approximately 20 metres towards a bus stop.

A schoolgirl walking along the footpath saw the car coming towards her and tried to run behind the bus shelter to get out of the way, but your car struck her in the back. Your car then hit a steel pole holding the bus stop sign and flattened it. Part of the pole flew into the bus shelter.

Your car continued along the footpath and struck three victims, Lasi Nuku, (Zhan or) Peter Chen and Jessica Best. Lasi Nuku was thrown into another bystander, bounced off her and landed on the road in front of the bus shelter. Peter Chen was thrown into the air and also landed on the road. Jessica Best…

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 Chaaya v Police

Details

AGLC: Chaaya v Police [2019] NZHC 3250
Case: [2019] NZHC 3250
Decision Date: 10 December 2019

CaseChat Overview and Summary

In Chaaya v Police, Michael Abou Chaaya appealed against his sentencing for dangerous driving causing injury. He was sentenced to 10 months’ home detention, 250 hours of community work, a payment of $16,000 in emotional reparation, and a two-year disqualification from driving. Chaaya argued that the sentence was manifestly excessive, particularly the two-year disqualification period and the home detention, as the District Court Judge had not taken into account the time he spent on bail with a driving restriction. The Crown argued that the sentence remained appropriate given the serious nature of the offending.

The High Court considered the issue of whether the District Court Judge had failed to take into account the time Chaaya spent on bail, which was relevant to the disqualification period and the home detention. The Court found that the District Court had not adequately considered the time Chaaya spent on bail with a driving restriction and that this warranted a discount in the disqualification period. The Court also found that the home detention time should have been adjusted to account for the four weeks Chaaya spent on a 24-hour curfew. However, the Court considered that any adjustment to the home detention time would amount to tinkering with the sentence and was therefore not appropriate.

The Court held that the sentence imposed by the District Court was manifestly excessive in relation to the disqualification period, as it did not take into account the time Chaaya spent on bail with a driving restriction. The Court noted that a lengthy period of disqualification could hinder the offender's rehabilitation and reintegration, and that the least restrictive sentence appropriate in the circumstances should be imposed. The Court concluded that an additional year of being unable to drive would unduly hinder Chaaya's rehabilitation, particularly given the early stage of his career.

The Court allowed the appeal and reduced the disqualification period from two years to one year, effective from 11 February 2019. The Court held that the original sentence would otherwise stand. The Court granted the application for extension of time to appeal.

Orders