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Poona v Police

Poona v Police

Case [2018] NZHC 791 24 April 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-016 CRI-2018-404-017

[2018] NZHC 791

BETWEEN
JACOB TEREKIA POONA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 April 2018

Appearances:

N D F Bond & G H Vear for Appellant L R Beashel for Respondent

Judgment:

24 April 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 24 April 2018 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

POONA v POLICE [2018] NZHC 791 [24 April 2018]

Introduction

[1] Jacob Poona pleaded guilty to four charges of driving while disqualified.1 On 19 January 2018, he was sentenced to 100 hours of community work and disqualified from driving for a period of eight months.2

[2] Mr Poona now appeals his sentence on the grounds that the Judge erred in refusing to exercise the discretion under s 94 of the Land Transport Act 1998 to substitute a community-based sentence in lieu of disqualification from driving.

The offending

[3] Mr Poona was initially disqualified from driving for a period of three months from 3 July 2017, after being convicted of driving with excess breath alcohol for a person under the age of 20. He was subsequently caught driving while disqualified on 3 August 2017, 10 August 2017, 24 August 2017 and 27 August 2017. On two of those occasions he told police he was the sober driver for intoxicated friends, while on another occasion he admitted he was disqualified and said that he was driving “to get around”.

District Court decision

[4] Judge Glubb reviewed the facts of the offending and noted that an aggravating feature was “the speed with which [Mr Poona] amassed the four offences, all within the space of a month”.3 He noted that an application had been made under s 94 of the Land Transport Act and referred to the submission of Ms Vear for Mr Poona that s 94 was “tailormade” for this situation, as Mr Poona appeared to be on a “wheel of offending”. The police were neutral towards the s 94 application.

1 Land Transport Act 1998, s 32(1)(a); for a first or second offence the maximum penalty is three months’ imprisonment, or a fine not exceeding $4,500, and mandatory disqualification from driving for at least six months; for a third or subsequent offence the maximum penalty is two years’ imprisonment, or a fine not exceeding $6,000, and mandatory disqualification from driving for at least one year.
2 Police v Poona [2018] NZDC 4536.
3 At [5].

[5] The Judge then noted that s 94 required him to look at the circumstances of the case, Mr Poona’s circumstances and the effectiveness of the disqualification. He observed:4
[Disqualification] was not particularly effective for you but that is nothing to do with the disqualification period. It is all to do with your attitude, frankly. You seem to think that the disqualification did not apply to you…

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.

Continue reading Poona v Police

Details

AGLC: Poona v Police [2018] NZHC 791
Case: [2018] NZHC 791
Decision Date: 24 April 2018

CaseChat Overview and Summary

The appellant, Jacob Poona, appeals his sentence of 100 hours of community work and eight months of disqualification from driving for four charges of driving while disqualified. The appeal focuses on the refusal by the sentencing Judge to exercise the discretion under s 94 of the Land Transport Act 1998 to substitute a community-based sentence in lieu of disqualification from driving. The court considered whether the Judge erred in principle by treating the rapidity of Mr Poona’s re-offending as an aggravating factor against the application and if the Judge failed to adequately take into account the relevant mandatory considerations set out in s 94.

The court found that the Judge did err in principle in his approach to s 94. The Judge wrongly considered that the rapidity of Mr Poona’s re-offending and the likelihood of Mr Poona continuing to offend in the same way in future weighed only in favour of continued disqualification. The court noted that the remedial purpose of s 94 and the shift in penal policy brought about by the section should have been considered. A strict insistence on compliance with court orders and punishing those who flout them with longer and longer terms of disqualification is no longer appropriate. The court concluded that the Judge’s approach amounted to an error of principle.

The court exercised the s 94 discretion afresh and found that the s 94 discretion should be exercised in this case. Mr Poona is a young man whose repeat offending appears to be the result of immaturity and a lack of consequential thinking. Disqualification is demonstrably not an effective penalty for him, and this leads the court to conclude that it would be inappropriate to order a further period of disqualification. There are no public safety concerns that would warrant further disqualification. The court was satisfied that a community-based sentence would be appropriate in Mr Poona’s case and that such a sentence would better meet the purposes of accountability, denunciation and deterrence.

The court increased the number of hours of the sentence of community work imposed on Mr Poona from 100 hours to 200 hours, quashing the order for disqualification.

Orders