Pahina v Police

[2015] NZHC 3131

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000059 [2015] NZHC 3131

BETWEEN

ALBERT KARAKATU PAHINA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 December 2015
Appearances:	No appearance for Appellant S A Tapsell for Respondent
Judgment:	9 December 2015

ORAL JUDGMENT OF GILBERT J

Solicitors:

Gordon Pilditch, Rotorua

Copy to: Appellant

PAHINA v NEW ZEALAND POLICE [2015] NZHC 3131 [9 December 2015]

Introduction

[1]      Mr Pahina was employed as a driver for Waho Transport Ltd, a Taupo based company that  operates  a  fleet  of  truck  and  trailer  units  moving  general  freight throughout New Zealand.  In January 2015, police commenced a logbook and work time  investigation  into Waho Transport  Ltd  and  its  employee  drivers,  including Mr Pahina. As a result of this investigation, covering the period from 1 September to

31 December 2014, police discovered that Mr Pahina had regularly breached his work and rest time limits and falsified his logbook records.

[2]     The police laid seven charges against Mr Pahina arising out of these infringements, three of which were representative charges.   The first charge, representative of five offences during the three month period, was for exceeding

13 hours work time in a day in breach of s 79O(b) of the Land Transport Act 1998. The second charge, representative of 12 offences committed during this period, was for failing to have 10 hours rest in a work day in breach of s 79O(b) of the Act.  The third charge, representative of three offences, was for making a false statement in a logbook in breach of s 79R(1)(b) of the Act.  The fourth charge was for exceeding five and a half hours’ continuous work time in breach of s 79O(b).  The fifth charge was for maintaining two logbooks in breach of s 79R(1)(a). The sixth charge was for failing to make all logbooks available on demand in breach of s 79Q(a) of the Act. The seventh charge was for failing to deliver a copy of the logbook to his employer in breach of s 79Q(a).

[3]      In relation to the first, second and fourth charges, the Judge was required to disqualify Mr Pahina from driving for one month or more.  In relation to the other four charges, the Judge had a discretion to disqualify Mr Pahina from driving for one month or more.

[4]      Mr Pahina pleaded guilty to these charges.   Judge A J S Snell sentenced Mr Pahina to in the Taupo District Court to a total of two months disqualification and 120 hours’ community work.1    In arriving at this sentence, the Judge took into

account that Mr Pahina had been convicted of similar offending earlier this year.

1      Police v Pahina [2015] NZDC 21621.

[5]      Mr Pahina appeals against the disqualification, arguing that only one month disqualification should have been imposed, consistent with sentences he claims were imposed on a number of other Waho Transport drivers who were prosecuted as a result of the same investigation.

[6]      Mr Pahina did not appear today, nor did he file any submissions in support of his appeal.   The matter was listed for hearing at 2.15pm.   The Court waited until

2.35pm to give Mr Pahina the opportunity to be heard.

Decision

[7]      The appeal must be dismissed for the following reasons.

[8]      First, the offending was regular and persistent over the three month period covered by the investigation.

[9]      Second, the infringements were not minor or technical.  On five occasions, Mr Pahina drove for 19 hours or more.  On one occasion, he drove for 27.5 hours without rest.  He also failed to have the required minimum of 10 hours’ cumulative rest on 12 separate occasions during this three month period.  These were serious breaches involving real risk to public safety.  The sentence needed to be sufficient to deter Mr Pahina and others from flaunting these provisions which are there to protect the public.

[10]     Third, the offending involved deliberate deception, with two logbooks being maintained to conceal the actual driving hours and rest periods.

[11]     Fourth, Mr Pahina has a number of previous convictions for similar such offending.   These previous convictions are for offending in 2000, 2005, 2011 and

2015.  Despite having been previously disqualified from driving for a period of one month for such offending in 2011, this did not deter Mr Pahina from further offending. This was a personal aggravating feature.

[12]     Fifth, the Judge was obliged to impose a minimum period of one month disqualification for three of the seven charges and was permitted to impose periods of disqualification of one month or more for the other four charges.

[13]     In  all  of  these  circumstances,  the  Judge’s  decision  to  impose  a  total  of two months’ disqualification for the seven charges, including the three representative charges, was well within the range of his sentencing discretion.    If anything, the sentence was lenient.

[14]     There is nothing in the parity point.  I have reviewed the sentences imposed on the other drivers who were prosecuted as a result of the same investigation.  They received periods of disqualification ranging from one to four months depending on the nature and extent of the offending in each case and taking into account whether they had previous convictions for similar offending.  The period of disqualification imposed on Mr Pahina is in line with these other sentences.

Result

[15]     The appeal is dismissed.

M A Gilbert J