Palu v Police

[2015] NZHC 842

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000110 [2015] NZHC 842

BETWEEN

FALEALUPE PALU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 April 2015
Counsel:	D D Vincent for Appellant I R Murray for Respondent
Judgment:	28 April 2015

JUDGMENT OF COLLINS J

Introduction

[1]      I am dismissing Mr Palu’s appeal from a sentence imposed by Judge Butler in

the Hutt Valley District Court on 17 December 2014.

[2]      Judge Butler sentenced Mr Palu on a charge of driving whilst disqualified. Mr Palu was sentenced to four months’ community detention commencing on 21

January 2015 and disqualified from driving for 12 months and one day from 17

December 2014.

[3]      Mr Palu appeals the disqualification element of the sentence and asks that a community-based sentence be imposed in its place.

[4]      In my assessment, the sentence imposed by Judge Butler was appropriate.

PALU v NEW ZEALAND POLICE [2015] NZHC 842 [28 April 2015]

District Court decision

[5]      When he appeared before Judge Butler, Mr Palu sought a community-based sentence instead of a period of disqualification.   That submission was based on s 94(1) of the Land Transport Act 1998 (the Act) which provides:

94       Substitution of community-based sentences

(1)       This section applies if—

(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.

…

[6]      Judge Butler explained his reasons for declining to apply s 94(1) of the Act in the following way:1

… [Y]ou have a terrible driving history, you have had the benefit of not being disqualified in the past on conviction for similar offending, and you have 14 previous convictions for driving while disqualified.  The number of convictions does not matter, but yours have been accumulated rapidly and recently.  I think, in the interests of road safety, you should not be driving or permitted to drive for the period of the disqualification.

1      Police v Palu DC Hutt Valley CRI-2014-096-897, 17 December 2014 at [5].

Grounds of appeal

[7]      In his helpful submissions Mr Vincent, counsel for Mr Palu, condensed the grounds of appeal to four issues which I will address under the following headings:

(1)       Mr Palu’s driving history;

(2)       Road safety and public interest; (3)           Effectiveness of previous orders; (4)    Effect on employment.

[8]      Before examining the four grounds of appeal advanced on Mr Palu’s behalf, I will briefly set out Mr Palu’s explanation for his offending and his previous relevant convictions.

[9]      In an affidavit presented to the District Court in July 2014, Mr Palu explained that he was on a benefit but that he had previously been self-employed in a home-kill business.   Mr Palu explained that unless he could drive he would not be able to resume his occupation.

[10]     Mr Palu explained that on 30 May 2013 he was disqualified from driving for one year.  He was subsequently before the Court on 21 August 2013 when he was convicted for driving whilst suspended.   On this occasion Mr Palu was not disqualified.   Mr Palu says he had those events confused in his mind when on

27 March 2014 he drove his vehicle.  The circumstances behind his decision to drive his vehicle were that he had been assisting his church move items for a garage sale. His wife and children had become stranded. After waiting two hours for someone to come and drive his car, Mr Palu chose to drive and get his wife and children.  He was stopped by the police and charged with driving whilst disqualified.  He pleaded guilty to this offence on 27 March 2014.

Criminal and traffic history

[11]     Mr Palu has 67 previous convictions, many are for domestic violence.   Of relevance are his convictions for driving while disqualified or whilst his licence was suspended.

[12]   On 9 December 1993 Mr Palu was twice convicted for driving whilst disqualified.   Mr Palu  was also  convicted for driving whilst disqualified on 28

February 1996, 23 July 1996, 23 October 1996, 21 July 1997, 30 October 1998, 7

May 2009, 19 November 2009 and 28 September 2010.  In addition, Mr Palu was convicted for driving whilst his licence was suspended on 15 October 2008, 30 May

2013 and 21 August 2013.

Analysis

Mr Palu’s driving history

[13]     The Crown accepts Judge Butler made an error when he said Mr Palu had 14 previous convictions for driving whilst disqualified whereas in fact he had 11 convictions for driving whilst disqualified and three convictions for driving whilst suspended.  The Crown also accepts that there are distinctions between those types of offences.

[14]     However, I am satisfied the error made by Judge Butler when he referred to the number of Mr Palu’s convictions for driving whilst disqualified was not material to his decision to decline to make an order in favour of Mr Palu under s 94 of the Act.  Judge Butler made this clear when he emphasised that the number of Mr Palu’s previous convictions “[did] not matter”, meaning, the exact number of Mr Palu’s driving whilst disqualified convictions was not material to Judge Butler’s decision.

Road safety and public interest

[15]     Mr Vincent submitted the reasons for Mr Palu’s most recent offending show that there was no element of public safety engaged and that Judge Butler erred when he referred to this factor.

[16]     The Crown accepts that Mr Palu’s recent driving convictions do not involve

elements of recklessness or carelessness.

[17]     It is clear, however, that it is in the public interest for persons in Mr Palu’s circumstances to appreciate that “there [is] a usual and severe punishment to the offence of driving while disqualified - namely a further period of disqualification”.2

Effectiveness of previous orders

[18]     It was submitted on Mr Palu’s behalf that his history fits the criteria for s 94 because  he  unfortunately  gets  stuck  in  a  cycle  of  disqualification  which  is perpetuated through further convictions for driving whilst disqualified.

[19]     Mr Palu’s penultimate driving disqualification offence occurred in January

2010, over four years before his most recent offence and almost five years before he was sentenced by Judge Butler.

[20]     At one level, Mr Palu’s circumstances do appear to be designed for an order under s 94 of the Act because his previous disqualification sentences have not been effective in modifying Mr Palu’s behaviour.  This does not mean, however, that an order should necessarily be made under s 94 of the Act.  As noted by Woolford J in Tusani v Police, the sentencing Judge must carefully evaluate each factor identified in s 94(1)(b):3

The ineffectiveness of previous orders does not automatically outweigh all other relevant statutory factors.

[21]     Judge Butler needed to be satisfied that both a further disqualification would be inappropriate and that a community-based sentence would be appropriate.  Judge Butler weighed those factors and reached a conclusion that was clearly available to

him in the circumstances of this case.

2      Wadsworth v Police [2014] NZHC 3302 at [28]; Yu v Police HC Auckland CRI-2006-404-723,

10 November 2006.

3      Tusani v Police [2013] NZHC 196 at [15].

Effect on employment

[22]     Mr Vincent correctly emphasised that Judge Butler did not make reference to the effect of a further period of disqualification on Mr Palu’s prospects of employment.

[23]     While it was unfortunate Mr Palu will have great difficulty in working if he is unable to drive, I do not consider this to be a decisive factor because there is no assurance Mr Palu will be able to resume his previous business if he could drive.

Conclusion

[24]     I  have  carefully  considered  whether  the  overall  result  reached  by  Judge

Butler is open to challenge. When I weigh:

(1)       Mr  Palu’s  personal  circumstances,  and  the  circumstances  of  his

offending;

(2)       the effectiveness of previous orders of disqualification;

(3)       the likely effect of a further period of disqualification on Mr Palu; and

(4)       the interests of the public;

I am satisfied that Judge Butler reached the appropriate decision.

[25]     Mr Palu has not established Judge Butler was wrong to refuse to impose a community-based sentence in place of the disqualification order.

[26]     In  these circumstances  I am  driven to  conclude that the appeal must  be dismissed.

D B Collins J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant

Crown Solicitor, Wellington for Respondent