Patea v Police

[2025] NZHC 1058

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000022 [2025] NZHC 1058

BETWEEN  TATUPU JASON PATEA

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   5 May 2025

Counsel:D N Rawson for Appellant A L Chan for Respondent

Judgment:                5 May 2025

JUDGMENT OF BREWER J

Solicitors:

Public Defence Service (Auckland) for Appellant Kayes Fletcher Walker (Manukau) for Respondent

PATEA v POLICE [2025] NZHC 1058 [5 May 2025]

[1]    Mr Patea appeals his conviction and sentence resulting from him pleading guilty to an offence described in the charging document as “being the driver of a vehicle that was stopped under the Land Transport Act 1998 and having had a lawful demand by an enforcement officer under s 114(3)(B) (sic) of the Act to give your full name and full address you provided false or misleading information, you having, on at least two previous occasions, been convicted of an offence against s 114”. The “legislative reference” was “Land Transport Act 1998, ss 52A(1)(c), 52A(5), 52A(6) and 114(3)(b)”.

[2]    Mr Patea was sentenced by Judge Y Yelavich on 23 February 2024 on this charge and a number of others.1 It is not particularly clear from the sentencing notes what sentences attached to what charges. Ms Chan, for the Crown, submits that there is logic in disregarding some of the words that the Judge used. Ms Chan might well be right. But as I read  the sentencing  notes,  on this charge  the Judge  sentenced  Mr Patea to 18 months’ supervision, 40 hours’ community work and disqualified him from driving for two years. I note, however, that Mr Patea’s official criminal and traffic history does not mention anywhere the sentence of supervision and assigns to the charge of providing false or misleading information a sentence of 40 hours’ community work and two years’ disqualification from driving.

[3]    I have said to counsel that this is not a mystery I can unravel on appeal and, in any event, it is not relevant to the outcome I have decided.

[4]    Mr Patea needs leave to bring his appeal because he is some 11 months out of time. As I will come to, the prosecutor, Mr Patea, and the Judge were under a misapprehension as to the law which applies to the charge. Accordingly, I extend the time for the filing of the notice of appeal.

[5]    I accept, as does the Crown, that the sentence cannot stand. Section 52A legislates a regime of escalating penalties for repeated instances of the offending it creates, including the offence of providing false or misleading information. But this Court has held repeatedly that offending prior to the currency of s 52A (11 August

1      Department of Corrections v Patea [2024] NZDC 32227.

2017) does not count.2 Mr Patea’s two previous convictions are in that category. He should not have been subjected to the s 52A regime as a third time offender. This does not mean that the previous convictions are irrelevant to sentencing. They can, of course, be taken into account when fixing the sentence under the correct provision.

[6]    The only issue is how I remedy the situation. There is a divergence of practice. Some Judges have quashed the conviction, substituted a different conviction and re- sentenced.3 Other Judges have treated the conviction as properly entered, have quashed the sentence and imposed another sentence.4 I will adopt the latter course.

[7]Section 52A provides, relevantly:

(1)A person commits an offence if the person—

(a)is the driver of a vehicle that fails to stop—

(i)as soon as practicable when signalled or requested to stop under section 114(1); or

(ii)when required to stop under section 114(2); or

(b)is the driver of a vehicle that is stopped and fails to remain stopped in accordance with section 114(2A) or (3)(a); or

(c)fails or refuses to provide information or provides false or misleading information in response to a demand for information made by an enforcement officer under section 114(3)(b).

(2)The maximum penalty on conviction for an offence against subsection

(1) is a fine not exceeding $10,000.

(3)If a person is convicted of a first offence against subsection (1)(a) or

(b) and committed the offence while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver licence for 6 months.

(4)If a person is convicted of a second offence against subsection (1), a court must order the person to be disqualified from holding or obtaining a driver licence for a period of not less than 1 year and not more than 2 years.

2      Martin v Police [2021] NZHC 1356; Hallmond v R [2021] NZHC 2369; Tongalahi v Police [2022] NZHC 1409; Ryder-Ware v Police [2022] NZHC 3172; and Pearse v Police [2023] NZHC 2900.

3      Martin v Police, above n 2; O’Rourke v Police [2023] NZHC 1805; Pearse v Police, above n 2;

Harris v Police [2024] NZHC 2321.

4      Tongalahi v Police, above n 2; Rangi v Police [2024] NZHC 1460.

(5)If a person is convicted for a third or subsequent offence against subsection (1),—

(a)the maximum penalty is imprisonment for a term not exceeding 3 months; and

(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 2 years.

[8]    In my view, the offence of providing false or misleading information is created by s 52A(1)(c). That is specified in the charging document. Section 52A(2) prescribes the maximum penalty for a first or second offence against subs (1). It does not create an offence. Similarly, subss (4) and (5) prescribe penalties, they do not create offences.

[9]    Accordingly, the charge to which Mr Patea pleaded guilty was the s 52A(1)(c) charge. It was the sentencing which went wrong because the wrong penalty provision was given effect to.

[10]   Given the effluxion of time and the period of the Judge’s sentence of disqualification served by Mr Patea, I agree with both counsel that I should sentence Mr Patea to being convicted and discharged.

Decision

[11]The appeal against conviction is dismissed.

[12]   The appeal against sentence is allowed. The sentence of 40 hours’ community work and disqualification from driving for two years from 23 February 2024 is quashed.5 On the charge of providing false or misleading information, Mr Patea is convicted and discharged.

Brewer J

5      If the sentence on this charge included 18 months’ supervision, then that is also quashed.