Fifita v Police

[2017] NZHC 2408

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-270 [2017] NZHC 2408

BETWEEN

SAIMONE FIFITA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 October 2017
Appearances:	M Kidd for Appellant D S Houghton for Respondent
Judgment:	2 October 2017

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 2 October 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FIFITA v NEW ZEALAND POLICE [2017] NZHC 2408 [2 October 2017]

[1]      Mr Fitita pleaded guilty in the District Court to a charge of driving whilst disqualified.  On 10 July 2017, Judge Jelas imposed no financial penalty but made an order disqualifying him from holding or obtaining a driver’s licence for a period of six months commencing on that date.1

[2]      Mr Fifita  appeals  against  the  Judge’s  decision  to  impose  a  period  of disqualification. He contends the Judge ought to have made an order under s 94 of the Land Transport Act 1998 substituting a community-based sentence for the period of disqualification.

The offending

[3]      The circumstances surrounding the offending are unremarkable. The summary of facts records that the police were called to an address in Swanson on 19 August

2016 to deal with an unrelated matter. When they arrived, they found Mr Fifita behind the wheel of a motor vehicle.  Checks revealed he was a disqualified driver, having been disqualified from driving for a period of six months on 18 March 2016.

The hearing in the District Court

[4]      Mr Fifita had filed a brief affidavit in support of his application for an order under s 94.  It comprises the following information:

1)   I wish to make application for a S94 so I can do community work instead of a further disqualification.  I just got my licence on Saturday 8 July and need my licence for work.

2)   Public interest I wish to keep this work with D & H Steels Constructions [sic], having spent a lot of time in prison.  I started as soon as I got out of prison.

3)   The circumstances one of the charges relate to taking child to school the other time was just stopped by police for no reason.

4)   I have literacy issues and wish to improve here but happy to finally get the licence.

The Judge’s decision

[5]      The Judge’s decision was equally brief.  It was in the following terms:2

[1]       Mr Fifita, on this charge of driving while disqualified, I am going to have to disqualify you as part of your sentence.  You do not meet the criteria for no disqualification. It is unfortunate that you are in this position and were not sentenced earlier. You have gone to the trouble of getting your licence but are now disqualified.

[2]       I can understand why you would feel frustrated.  The most I can do today is to impose not additional penalty. I appreciate that the disqualification of itself will be a significant impact.   So a disqualification for six months starting today, no further penalty.

Discussion

[6]      The Judge’s comments are explained by the fact that Mr Fifita had been sentenced to four months imprisonment on 8 May 2017 on three charges of breaching prison release conditions and one charge of contravening a protection order.  He must have been in custody before sentencing on that occasion, because a transcript of the discussions between the Judge and counsel during the hearing indicate that Mr Fifita had been released from prison in or about May 2017. He had then obtained a learner’s driver’s licence so that he could drive legally.

[7]      The Judge asked Mr Kidd, who appeared for Mr Fifita in the District Court, why Mr Fifita had not been sentenced on the present charge in December 2016 when he was sentenced to three months imprisonment on other two charges of driving whilst disqualified.  Those charges related to incidents that had occurred on 26 July and 18

August 2016.  The second of these occurred just one day before the offending that gave rise to the charge that is the subject of the present appeal.

[8]      Mr Kidd explained that Mr Fifita did not wish to have the present charge dealt with in December 2016 because at that stage he was not ready to “bite the bullet” in respect of the present charge and the other charges on which he was sentenced to imprisonment on 8 May 2017.

[9]      The Judge clearly sympathised with Mr Fifita about the delay that had occurred in entering his plea and being sentenced on the present charge. Had he been sentenced on the present charge in December 2016, he would have served the period of disqualification that would have been imposed at that time.   Instead, he has been released from prison and obtained a learners licence only to find that he is again disqualified from driving for a further six months.  It was clearly for this reason that the Judge imposed no penalty other than the period of disqualification.

Decision

[10]     Section 94 provides as follows:

94       Substitution of community-based sentences

(1)      This section applies if—

(a)     The offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)    The court, having regard to—

(i)       The circumstances of the case and of the offender; and

(ii)      The effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)     The likely effect on the offender of a further order of disqualification; and

(iv)     The interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)     The court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2)       Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

(3)       If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a)     The court must impose a community-based sentence on the offender; and

(b)     The imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act

2002,  it  may  impose  in  addition  to  the  community-based sentence; and

(c)       In determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

(3A)     For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community-based sentence if—

(a)     that sentence is appropriate; and

(b)     a suitable programme is available; and

(c)     the offender attends a suitable programme.

…

[11]     As Ms Houghton for the respondent points out, Parliament enacted s 94 as a means of providing recidivist offenders with an opportunity to break their cycle of offending.  The legislature sought to achieve that objective by allowing the courts in appropriate cases to impose community-based sentences rather than further periods of disqualification.

[12]     Mr Fifita has an extensive list of previous convictions reaching back to 2003, but only four of these have been for driving whilst disqualified and three for failing as an unlicensed driver to comply with a prohibition on driving.  Furthermore, all of the convictions for driving whilst disqualified relate to incidents that occurred during

2016, and three of them occurred during a four week period between 26 July and

19 August 2016.  The fourth relates to an incident that occurred on 9 January 2016. For that reason Mr Fifita’s profile for offending of this type does not fit that of recidivist offenders who usually qualify for orders made under s 94.  This may have been what the Judge was referring to when she observed that he “did not meet the criteria for no disqualification”.

[13]     In the present case I do not consider Mr Fifita’s affidavit provided the Judge with any material assistance as to why she should make an order under s 94 rather than impose a further period of disqualification as she was otherwise required by law to do. For that reason there is no basis on which this Court can interfere with the Judge’s decision.

[14]     Another factor also suggests that an order under s 94 would not have been appropriate.  Mr Fifita now has a large number of convictions for disobeying Court orders and sentences.   These include not only the convictions for driving whilst disqualified but also convictions for breaching sentences of community work, community detention and supervision.  In addition, he has convictions for breaching protection orders and prison release conditions. These paint a picture of a person who is unable or unwilling to comply with orders and conditions imposed by the courts and other institutions.  The Court could therefore have had no confidence that Mr Fifita would abide by and carry out any community-based sentence that it might impose. For that reason it would not have been appropriate in terms of s 94(1)(c) to impose a community-based sentence in place of a further period of disqualification.

[15]     Mr Fifita can also regard himself as being fortunate that the police did not lay a charge of driving whilst disqualified in its aggravated form as they would undoubtedly have been entitled to do.  Had that occurred, Mr Fifita would have been subject to a mandatory period of 12 months disqualification.

Result

[16]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland