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 was carried for a short distance on the bonnet of your vehicle before she was thrown off over a steel fence and down an embankment. Your car eventually

1      Land Transport Act 1998, s 36(1)(b). Maximum penalty 5 years’ imprisonment or a fine not exceeding $20,000 and a period of disqualification of 1 year or more.

2      Police v Chaaya [2019] NZDC 2329 at [1]-[4].

came to a stop partially on top of the grass of the embankment and partially across the footpath. Three other victims, Shontel Leiataua, Agae Abbas and Nabaa Abbas, were injured by the flying debris caused by the crash and the broken pole. The six victims suffered varying injuries, which I will refer to shortly.

[5]The Judge later summarised the injuries inflicted as:3

… you injured six people; six school children aged between 13 and 15 years

– three seriously, however fortunately not permanently. Lasi Nuku suffered a broken right femur, multiple breaks to her left leg, tendon damage to both legs, damage to her elbow requiring surgery and lacerations to her face. She required a one month stay in Starship Hospital. Peter Chen suffered a broken femur which resulted in him being rehoused as his homestay did not have wheelchair access.

Jessica Best sustained a broken left ankle, swelling and bruising to the left knee, a chipped shoulder blade and bruising to her back and arms resulting in mobility issues for some time. Shontel Leiataua sustained nerve damage to her neck and back. Agae Abbas sustained cuts to her scalp, concussion and also significant bruising and Nabaa Abbas suffered extensive bruising to both ankles and a hematoma to her left ankle.

[6]                  Judge Sinclair considered a global starting point of two years’ imprisonment to be appropriate.

[7]A psychiatric report and a pre-sentence report were before the Court.

[8]                  Judge Sinclair noted that Mr Chaaya was now taking medication for anxiety and depression as a result of the offending. She noted his expressed feelings of guilt and shame, and that Mr Chaaya’s presentation fulfilled the criteria for an adjustment disorder with predominant anxiety symptoms.

[9]                  Mr Chaaya had been assessed as having a low risk of re-offending, although a high risk of harm, due to the serious nature of the offending.

[10]              Additionally, Mr Chaaya had participated in restorative justice. Judge Sinclair noted the success of the restorative justice. She commented that there had been productive and valuable sessions for both the victims and for Mr Chaaya. She considered Mr Chaaya had expressed what she assessed as genuine remorse, and that he had learned a very difficult lesson.

3      Police v Chaaya, above n 2, at [22]-[23].

[11]              Judge Sinclair noted the personal references provided, which she considered indicated that Mr Chaaya was a valuable and productive member of the community.

[12]              Finally, she noted that Mr Chaaya was entitled to a discount to reflect the greater rehabilitative prospects and reduced culpability arising out of his youth.

[13]              A total discount of 25 per cent was given. Accordingly, the end sentence was under two years, and commuted to a period of 10 months’ home detention. In addition, Mr Chaaya was sentenced to 250 hours community work and a payment of $16,000.

[14]              On the issue of disqualification, the Judge noted that one year was mandatory. The Police sought 18 months to two years. The Judge considered that a disqualification of two years was appropriate.

Submissions

[15]              Ms Cooper, in her written submissions for Mr Chaaya, submits that the imposition of two years disqualification and of home detention was manifestly excessive. Both submissions are grounded in the suggestion that the District Court Judge failed to take into account Mr Chaaya’s restrictive terms of bail.

[16]              First, counsel draws attention to the time which Mr Chaaya spent on bail. She submits that the District Court simply recited the competing interests in setting a period of disqualification and failed to consider the effect of a lengthy period of disqualification on a young man starting out his career.

[17]              Additionally, she notes that Mr Chaaya was first granted bail on 23 February 2018, and that a bail condition restricting Mr Chaaya from driving was imposed on that date. She submits that as a result, when he was sentenced on 11 February 2019, he had already spent almost a year effectively disqualified from driving. She submits that this was not recognised at sentencing, and Mr Chaaya should have been credited accordingly.

[18]              The submission in relation to home detention is similar. She draws attention to the four weeks which Mr Chaaya spent on 24 hour curfew at a time when there were

problems with his EM bail address. She submits that this should have been recognised at sentencing.

[19]              Mr Herring, for the Crown, submits that the sentence imposed remained appropriate despite the time spent on bail, and the prohibition on driving whilst on bail. He notes that the minimum possible period of disqualification was one year, and submits that a sentence of two years’ disqualification cannot be seen as crushing or manifestly excessive. He submits that this was serious offending which could have resulted in fatalities.

[20]              On the issue of failure  to  consider  the  four  weeks  of  24  hour  curfew,  Mr Herring submits that regardless, at this point any decrease would constitute tinkering with the sentence.

Approach on appeal

[21]              The Court on appeal must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. Otherwise, the Court must dismiss the appeal.4 In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.5 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.6 The focus is on the end result rather than the process by which the sentence was reached.7

Procedural history

[22]              Because of the nature of the appellant’s submissions, it is necessary to summarise the procedural history of this matter.

[23]              The offending occurred on 20 September 2017. Mr Chaaya first appeared on 23 February 2018. On this date, a bail condition was imposed prohibiting him from

4      Criminal Procedure Act 2011, ss 250(2) and (3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 4, at [30]-[35].

7      Tutakangahau v R, above n 5, at [36].

driving. On 2 August 2018, after receipt of a sentencing indication, Mr Chaaya entered a plea of guilty. No indication about disqualification was given.

[24]              On 19 November 2018 a pre-sentence report was prepared. Mr Chaaya’s proposed address, his family’s home address, was deemed technically unsuitable for home detention due to poor signal in certain areas. His sentencing was postponed. On 27 November 2018 a second report was prepared. It determined that the EM signal could not be “boosted” at the proposed address. It was not until 8 February 2019 that a third report was prepared and another address suggested. Mr Chaaya was sentenced three days later, on 11 February 2019.

[25]              Just over a month later, Mr Chaaya’s home detention address became unavailable. He was immediately removed and relocated to his originally proposed address. A week later he appeared in the Waitakere District Court after being served with an application to cancel his sentence of home detention. His sentence was cancelled and he spent four and a half weeks on a 24 hour curfew to allow a suitable home detention address to be found. On 18 April 2019 he was re-sentenced by Judge Bouchier to home detention for a period of nine months.8

[26]              On 11 July 2019 he was moved to his family home following further home detention address difficulties. After a few weeks, his probation officer allowed him to remain at his family home address for the remainder of his sentence provided he does not go to the side of his house where there is no reception.

Analysis

[27]              On the issue of failure to recognise Mr Chaaya’s time spent on 24 hour curfew when he was re-sentenced on 18 April 2019, I agree with Ms Cooper and Ms Archibald that this would generally warrant a discount. They seek two to three weeks. This is a point relating to the re-sentencing by Judge Bouchier, but that is within the scope of the appeal.

8      Police v Chaaya [2019] NZDC 23637.

[28]              Mr Herring has drawn my attention to Taylor v R,9 where the Court of Appeal indicated that errors which amount to “credit of such temporal insignificance as to amount to mere tinkering with the sentence” do not usually justify allowing an appeal.10 In this case, an adjustment of the level sought would amount to such tinkering. Accordingly, I do not consider any adjustment is appropriate in the circumstances.

[29]              I turn to the issue of the appropriate period of disqualification. There is no tariff or guideline decision for the imposition of a disqualification from driving. Each particular factual situation must be assessed in terms of the principles and purposes of sentencing generally.11

[30]              The competing considerations to be taken into account in imposing a period of disqualification were outlined by the Court of Appeal in Hitchens v Police:12

Long periods of disqualification typically leave little  hope  for  offenders. On the other hand, it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

[31]              On the policy considerations underlying the disqualification from driving, the remarks of Dunningham J in Mathias v Police,13 recently endorsed by the Court of Appeal in Taiapa,14 are relevant:

[37]      I also accept the appellant’s submission that, as the purposes and principles of sentencing apply to any form of “dealing with an offender”, they must apply to the exercise of the discretion under s 124. That section provides that the Court may make an order under that section “in addition, to, or instead of, passing any other sentence or making any other order”. This makes it clear that an order under this section may, in some cases, meet the purposes and principles of the Sentencing Act without the need for any other sentence.

[38]      An order under s 124 has both … punitive and protective purposes. The loss of license is a way of making the offender accountable, and of denouncing his or her behaviour and of deterring the offender and others from similar offending. Equally, though, it can provide a means of protecting the community from the offender.

9      Taylor v R [2017] NZCA 574.

10 At [31].

11     Taiapa v R [2019] NZCA 524 at [31].

12     Hitchens v R CA380/03, 25 March 2004.

13     Mathias v Police [2016] NZHC 959.

14     Taiapa v R, above n 11, at [28]-[29].

[39]      Where the ability to drive facilitated the offence, there may be a good reason for imposing disqualification to limit the opportunity for the offender to continue offending in that way. Equally, however, I accept the appellant’s submissions that where the inability to drive would hinder the offender’s rehabilitation and reintegration, or would mean that the totality of penalties imposed, offends the principle that the least restrictive sentence appropriate in the circumstances should be imposed, that would point against an order being made under s 124.

[32]              As the Court of Appeal also observed in Taiapa, it can fairly be inferred that a lengthy period of disqualification would impact on a person’s ability to obtain and keep employment.15

[33]              The Judge dealt with disqualification briefly, correctly noting the competing considerations referred to in Hitchens and concluding that two years’ disqualification was appropriate. The Court of Appeal in Taiapa has recently confirmed that a reasoned analysis is required.16

[34]              Further, the Judge did not appear to consider whether credit should be given for the time Mr Chaaya was prohibited from driving while on bail. Thus, as Mr Herring accepted, it is appropriate I consider that issue effectively afresh.

[35]              I accept Ms Archibald’s submission that in the circumstances of this case Mr Chaaya should have been given credit for his time prohibited from driving while on bail. As Hinton J said in Prowse v Police:17

The Court may direct that the period of disqualification be back-dated or commence on a future date.

The obvious example of where a Court may direct that a period of disqualification be back-dated is where a person was on bail prior to the sentencing and a condition of the bail was that they not drive. Assuming they complied with that condition, the Court might reasonably back-date the disqualification to some extent, so as to not inadvertently punish someone for longer than was required.

[36]              Mr Chaaya spent nearly a year on bail prohibited from driving. This is was a significant period of time, particularly considering the ultimate period of

15     Taiapa v R, above n 11, at [31].

16     At [33]-[35].

17     Prowse v Police [2019] NZHC 307 at [26]-[27].

disqualification imposed.    I consider this warranted recognition in his period of disqualification.

[37]              I also accept the appellant’s submission that Mr Chaaya’s reintegration into society will be impacted by a longer period of disqualification. Mr Chaaya has no prior criminal history. As his qualification (a university degree in computer science), community references, and genuine remorse demonstrate, his rehabilitative prospects are excellent. I agree with Ms Cooper and Ms Archibald that an additional year of being unable to drive will unduly hinder his rehabilitation, particularly given the early stage of his career (he is aged 22 with no work experience yet). This is not a case where public safety requires that he be kept off the road for a longer period. His probation officer indicated that he is expected to complete a driving course in early 2020.

[38]              I do not consider that a longer period of disqualification would have been appropriate thereby offsetting credit for the time Mr Chaaya was prohibited from driving while on bail. I conclude that the disqualification period should be adjusted by giving credit for the year Mr Chaaya was prohibited from driving while on bail.

Result

[39]The application for extension of time is granted.

[40]              The appeal is allowed. The sentence of two years’ disqualification from driving is quashed. A disqualification period of one year from 11 February 2019 is imposed.

[41]In all other respects the original sentence stands.

Gault J