Opetaia v Police - [2015] NZHC 2532

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000277 [2015] NZHC 2532

BETWEEN
DOROTHY OPETAIA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 October 2015

Appearances:

Richard Slade for the Appellant
Kate Muirhead for the Respondent

Judgment:

14 October 2015

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 14 October 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

OPETAIA v NEW ZEALAND POLICE [2015] NZHC 2532 [14 October 2015]

Introduction

[1] On 14 August 2014 Dorothy Opetaia was sentenced by Judge Fraser in the District Court at Auckland to 15 months’ imprisonment and 18 months’ disqualification for driving.1

[2] This sentence was imposed following pleas of guilty entered in respect of the following charges:

(a) four charges of driving while disqualified (third or subsequent);2 (b) one representative charge of breach of intensive supervision;3 and (c) one charge of giving false details to the Police.4

[3] At sentencing the Judge also granted the Department of Corrections’ application to cancel Ms Opetaia’s sentence of intensive supervision which had been imposed in September 2014 when she was sentenced on three charges of driving while disqualified, giving false details and failing to remain for an enforcement officer.

[4] Ms Opetaia now appeals her sentence on the grounds that in various ways the sentencing Judge erred. The essence of the appeal is that the sentence was manifestly excessive.

Factual background

[5] On 26 September 2014 Ms Opetaia was sentenced to three charges of driving while disqualified, one charge of failing to remain for an enforcement officer, one charge of giving false details and a charge of breaching her prison release conditions. She was sentenced to intensive supervision and was disqualified for driving for six
months.

1      New Zealand Police v Opetaia [2015] NZDC 16238.
2      Land Transport Act 1998, ss 32(1)(c) and 32(4): maximum penalty two years’ imprisonment,
$6,000 fine, more than one year of disqualification.
3      Land Transport Act 1998, s 44: maximum penalty $10,000 fine.
4      This sentence in relation to this charge does not appear to be subject to appeal.

[6] However, just a week later on 3 October 2014 she was seen in Glen Innes driving a black Subaru. She was pulled over. It was discovered she was a disqualified driver. She offered no explanation.

[7] Then, on 8 November 2014, a little over a month later, Ms Opetaia was involved in a domestic incident at a residential address in Glen Innes. The Police were called. Ms Opetaia was seen to drive away from the address in the Subaru.

[8] Just six days later on 14 November 2014, Ms Opetaia was again seen driving in Glen Innes, this time in a Honda. She was stopped by the Police who recognised her as a disqualified driver. She said she knew she was disqualified but she had to get to an urgent doctor’s appointment in East Tamaki as she was four months pregnant and there was no one…

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.

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Details

Case: [2015] NZHC 2532
Decision Date: 14 October 2015

CaseChat Overview and Summary

Dorothy Opetaia appeals against her sentence of 15 months' imprisonment and 18 months' disqualification for driving, imposed by Judge Fraser in the Auckland District Court following pleas of guilty to multiple charges including driving while disqualified, breach of intensive supervision, and giving false details to the Police. The essence of the appeal is that the sentence was manifestly excessive. The District Court had noted the persistence of Ms Opetaia's offending, her previous convictions for similar offences, and her apparent contempt for the law. The starting point for the first offence of driving while disqualified was set at 10 months' imprisonment, with additional sentences cumulatively added for the remaining charges, resulting in an overall starting point of 20 months' imprisonment. After applying a discount for the guilty plea, the final sentence was set at 15 months' imprisonment. The appeal raises three issues: whether the cumulative sentence for the driving offences was too high, whether deductions should have been made for the circumstances of the driving offences or Ms Opetaia's personal circumstances, and whether home detention should have been imposed instead of imprisonment. The High Court found that the sentence was not manifestly excessive, noting the seriousness of the offending and Ms Opetaia's history of non-compliance with court orders. The court also found that no deductions should have been made for the circumstances of the offences or Ms Opetaia's personal responsibilities, and that imprisonment was the appropriate sentence given her history of non-compliance. The appeal is dismissed.

Orders