Paikea v Police

[2017] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000046 [2017] NZHC 3032

BETWEEN

SAMUEL PAIKEA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 December 2017
Counsel:	NE Town for Appellant JW Wall for Respondent
Judgment:	7 December 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 7 December 2017 at 12.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Webb Ross McNab Kilpatrick Ltd, Whangarei. Crown Solicitor, Whangarei.

PAIKEA v POLICE [2017] NZHC 3032 [7 December 2017]

The appeal

[1]      Mr Samuel Paikea pleaded guilty to a charge of driving while suspended.  On

13 October 2017 Judge D J McDonald disqualified Mr Paikea from driving for six months, and fined him $800.1   Mr Paikea appeals.  On his behalf, Ms Town contends the Judge erred to conclude he had no jurisdiction to impose a community-based sentence rather than disqualifying Mr Paikea from driving.2

[2]      For the Police, Mr Wall concedes the Judge did have jurisdiction to impose a community-based sentence. However, Mr Wall submits disqualification should not be disturbed.

Background

[3]      The facts are unremarkable, but the chronology is important.

[4]      On 26 April 2017 Mr Paikea was suspended from driving through excess demerit points. On 5 May 2017 he was charged with driving while suspended. On 31

May 2017 Mr Paikea was convicted of that offence. He was disqualified from driving for six months commencing 22 July 2017.

[5]      On 26 June 2017 Mr Paikea drove again.  And caught.   His period of disqualification had not commenced.  But, he was already suspended from driving (from 26 April 2017). This was the offence before Judge McDonald in October 2017.

The key provision

[6]      Section 94 of the Land Transport Act 1998 provides:

94   Substitution of community-based sentences

(1)   This section applies if—

1      Police v Paikea [2017] NZDC 24854.

2      Police v Paikea [2017] NZDC 26360 at [15].

(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.

(4)   This section does not apply if—

(a)   section 63 or section 65 applies; or

(aa) Not in force.

The District Court’s decision

[7]      Judge McDonald concluded because Mr Paikea was “not yet subject to a period of disqualification” when he drove on 26 June 2017, the jurisdictional requirements of s 94(1)(a) were not met.3   So, a community-based sentence was not available.

Jurisdiction

[8]      I consider Mr Wall was correct to offer a concession of error in relation to this conclusion.

[9]      First, s 94 is expressed as applying to an offender who has previously been ordered on conviction for an offence to be disqualified from holding a driver licence. On the face of the section, there was jurisdiction for an order.

[10]    Second, by providing for alternative sentencing options to an otherwise mandatory period of disqualification, the statutory concern is with the offender’s circumstances prior to sentence; not the precise timing of the earlier disqualification order.

[11]     Third, the concession is consistent with Clifford J’s analysis in Tuhi v Police.4

In that case, Clifford J analysed the jurisdictional basis for s 94 orders.   Noting decisions of Asher, Keane and Baragwanath JJ in this area,5  Clifford J concluded a defendant suspended from driving without a previous order of disqualification could not be the beneficiary of the provision. However, a defendant suspended from driving would  come  within  s  94,  providing  he  or  she  had  previously been  ordered  on

conviction for an offence to be disqualified from holding a driver licence.  The Judge

3      Police v Paikea, above n 2, at [12].

4      Tuhi v Police [2015] NZHC 516.

5      Police  v  Smith  [2012] NZHC 2346, [2012] NZAR 965; Pannu  v  Police  HC  Auckland

CRI-2009-404-84, 2 June 2009; and Police v Raynes HC Auckland AP86/98, 10 November 1998.

acknowledged “the interpretation of s 94 … has not proved easy”.6    But, because

Ms Tuhi “had previously been disqualified … [t]he discretion was available on the plain words of s 94”.7

[12]     I acknowledge a conclusion of jurisdiction on these facts is not in perfect harmony with the paradigm s 94 case, in which a driver is removed from an unending “wheel of offending”.8    However, the conclusion s 94 extends to a period of disqualification previously ordered, but which had not taken effect at the time of the later offence of driving while suspended, does not offend the provision’s purpose. The section is ultimately a remedial one to ensure Courts have at their disposal appropriate penalties for those previously disqualified from driving through an offence.

[13]     And, the contrary conclusion would be to ignore the plain language of the provision—an unorthodox approach to statutory construction—particularly given the criminal law context.

Should an order be made?

[14]   This case is unusual in that the effectiveness of the previous order of disqualification cannot be tested (as at the time of the later offence). Nor can the likely effect on Mr Paikea of a further order of disqualification. Both because this offending occurred before the disqualification period commenced.

[15]   Mr Paikea’s circumstances support a community-based alternative.   To elaborate, Mr Paikea is a foreman for a tree planting business.  He works long hours; between 6 am and 5.30 or 6.30 pm. Mr Paikea travels from Ruakaka to Kaiwaka every weekday for work.  Public transport is unavailable.  Mr Paikea is married with two young children (aged four and six).  He has only one other conviction, the driving while suspended offence (giving rise to disqualification on 31 May 2017). And, there

is nothing to suggest Mr Paikea’s driving is itself dangerous.

6      Tuhi v Police, above n 4, at [11].

7      Tuhi v Police, above n 4, at [10].

8      Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006 at [12].

[16]     One aspect of the public interest favours the imposition of the presumptive penalty of disqualification, as Mr Paikea has now driven repeatedly when he ought not to.  Mr Paikea is not above the law.  Furthermore, as I observed in Pairata v Police, “too  ready resort  to  s  94  could  undermine the  efficacy of disqualification  as  a penalty”.9   However, another aspect of the public interest favours exercise of the s 94 discretion. Mr Paikea is of otherwise good character, and a community-based sentence would leave him in productive employment—with all that entails.

[17]     In the round, departure from the presumptive penalty is warranted on unusual facts.

[18]     The appeal is allowed:

(a)       The  period  of  disqualification  imposed  by  Judge  McDonald  on

13 October 2017 is quashed.  But not the $800 fine.

(b)      Mr Paikea must instead complete 80 hours of community work.

……………………………..

Downs J

9      Pairata v Police [2016] NZHC 3026 at [10].