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 RespondentJudgment:
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…
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- [2017] NZHC 3032
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