Misa v Police - [2023] NZHC 720

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-157

[2023] NZHC 720

BETWEEN
CHRIS MU MISA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 April 2023

Appearances:

J W Howell and K R O’Connor for Appellant J Manera for Respondent

Judgment:

3 April 2023

ORAL JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 3 April 2023 at 2.56 pm

Registrar/Deputy Registrar

Solicitors:
Adams Law, Tauranga Crown Solicitor, Tauranga

MISA v POLICE [2023] NZHC 720 [3 April 2023]

[1] On 20 October 2022, Chris Mu Misa was sentenced having pleaded guilty to a charge of driving with excess breath alcohol, as a third or subsequent such offence. He was sentenced to four months’ community detention, nine months’ supervision, and disqualification from holding or obtaining a driver licence for one year and one day. In imposing that sentence, Judge Cameron declined Mr Misa’s application under s 94 of the Land Transport Act 1998, for a community-based sentence instead of the order for disqualification that was (in the absence of special reasons relating to the offence) otherwise required. Mr Misa appeals against the sentence imposed, and in particular against the decision to decline the s 94 application.

Background

[2] Mr Misa’s offending was detected when he was stopped by police at a checkpoint at about 2.12 am on Saturday, 11 June 2022. His breath was found to contain 483 micrograms of alcohol per litre. He said he was “just going home”.

[3] At the time, Mr Misa was 38 years old. He had excess breath alcohol convictions stemming from 2006, 2008 (two convictions), 2009 and 2016. He also had convictions for driving while disqualified. Those convictions stemmed from his disqualifications for his first 2008 drink driving offence and his 2016 drink driving offence. But his disqualifications stemming from his convictions in 2006 and 2009, and his second 2008 offence, were served without giving rise to further such convictions.

District Court decision

[4] Judge Cameron referred to affidavit evidence establishing that Mr Misa would ordinarily have a role transporting his six children to school or other events when his partner cannot, and that he would need to drive both to and while at work. Then adopting NZ Police submissions, his Honour observed:

[9] In the result, this is a situation of a repeat drink-driver seeking to avoid a disqualification on grounds of work and because of convenience in the family context. Against that there is the repeat drink-driving. Ms O’Connor points to the defendant having undergone a 10 week drink-driving course in 2016, the date of his most recent previous offending, but sadly this has not prevented the defendant from committing the same offence.

[10] I also agree with the Sergeant’s observation that the disqualifications which have followed each of his five previous convictions have actually on the face of it acted to reduce the risk of this repeat offending by the defendant. So they have had an effect and in…

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 Misa v Police

Details

AGLC: Misa v Police [2023] NZHC 720
Case: [2023] NZHC 720
Decision Date: 3 April 2023

CaseChat Overview and Summary

The appeal in Misa v Police was brought by Chris Mu Misa, who had pleaded guilty to driving with excess breath alcohol and was sentenced to community detention, supervision, and disqualification from holding or obtaining a driver’s licence. Misa appealed against the sentence, specifically the decision to decline his application under section 94 of the Land Transport Act 1998 for a community-based sentence instead of the driver licence disqualification. The appeal was heard in the High Court of New Zealand at Tauranga.

The legal issues addressed in this case were whether the District Court erred in declining Misa's application under section 94 of the Land Transport Act for a community-based sentence instead of a driver licence disqualification. The court needed to determine if the District Court had correctly exercised its discretion under section 94, considering the principles and purpose of the Act, and whether the sentence imposed was appropriate.

The court found that the District Court did not err in declining Misa's application for a community-based sentence. The reasoning was based on the rationale for section 94 of the Land Transport Act, which is to avoid the cumulative effect of adding periods of disqualification each time an offence is committed and to prevent offenders from being caught up in a cycle of reoffending. The court found that the District Court correctly considered the circumstances of the case, the effectiveness of previous orders, and the interests of the public. The court also noted that the District Court had not ignored Misa's rehabilitative efforts and low risk of reoffending, but rather considered them in light of his overall offending history and the need for deterrence. The appeal was dismissed.

Final orders were made dismissing the appeal.

Orders