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…

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: [2017] NZHC 3032
Decision Date: 7 December 2017

CaseChat Overview and Summary

The appeal in Paikea v Police was heard by Downs J at the High Court of New Zealand in Whangarei. Mr Samuel Paikea had pleaded guilty to driving while suspended. He was disqualified from driving for six months and fined $800. Paikea appealed the decision, arguing that the judge erred in concluding that he had no jurisdiction to impose a community-based sentence instead of disqualifying Paikea from driving. The Police conceded that the judge did have jurisdiction to impose a community-based sentence but argued that the disqualification should not be disturbed. The legal issues the court was required to decide were whether the judge had jurisdiction to impose a community-based sentence and whether the disqualification should be disturbed. The court concluded that the judge did have jurisdiction to impose a community-based sentence, and that the disqualification should be disturbed. The court's reasoning was that the statutory concern was with the offender's circumstances prior to sentence, not the precise timing of the earlier disqualification order. The court also found that Mr Paikea's circumstances supported a community-based alternative. In the round, departure from the presumptive penalty was warranted on unusual facts. The appeal was allowed, and the period of disqualification imposed by the judge on 13 October 2017 was quashed, but not the $800 fine. Mr Paikea must instead complete 80 hours of community work.

Orders