Pou v Police - [2018] NZHC 787

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2018-488-000011

[2018] NZHC 787

BETWEEN
ANAMARAEA ERIN POU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 April 2018

Appearances:

D Sayes for the Appellant J Scott for the Respondent

Judgment:

24 April 2018

JUDGMENT OF WOOLFORD J

Solicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei Counsel: Mr D Sayes, Whangarei

POU v NZ POLICE [2018] NZHC 787 [24 April 2018]

Introduction

[1] On 14 February 2017, Anamaraea Erin Pou was sentenced to six months community detention on two charges of driving while disqualified, having been convicted at least twice previously of the same or similar offence. She was also disqualified from holding or obtaining a driver’s licence for 15 months, commencing on 26 April 2017.

[2] On 2 August 2017, Ms Pou pleaded guilty to a further two charges of driving while disqualified, having been convicted at least twice previously of the same or similar offence, one charge of failing to stop for a traffic officer and one representative charge of breaching the community detention order by failing to remain at the detention address during curfew hours. On the same day, Ms Pou did not oppose an application by the Department of Corrections to cancel the sentence of community detention and substitute another sentence. The sentence of community detention was thereupon cancelled.

[3] On 19 October 2017, Judge McDonald resentenced Ms Pou on the original two charges of driving while disqualified to three months home detention. The Judge also sentenced Ms Pou to four months home detention on the charge of breaching the community detention order. Then, on the two new charges of driving while disqualified, the Judge sentenced Ms Pou to seven months home detention. All sentences of home detention were concurrent. Finally, the Judge convicted and discharged Ms Pou on the failing to stop charge.

[4] Counsel submitted that instead of sentencing Ms Pou to another term of disqualification on top of her current term, the Judge should invoke the provisions of s 94 of the Land Transport Act 1998 (the Act) and sentence Ms Pou to a community- based sentence instead of another order for disqualification. The Judge said he did not have jurisdiction to do so and therefore disqualified Ms Pou from holding or obtaining a driver’s licence for another 12 months, commencing on 26 July 2018.

[5] Ms Pou now appeals against sentence on the sole issue of the applicability of s 94 of the Act. She submits that the Judge erred in law when he held that the Court had no jurisdiction to apply s 94 of the Act.

District Court judgment

[6]The District Court Judge dealt with the issue of s 94 of the Act as follows:1

The remaining question I have to decide is whether I can evoke [invoke] s 94 and not disqualify you? I have read Mr Sayes submissions. His argument is that although I sentence you to…

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 Pou v Police

Details

AGLC: Pou v Police [2018] NZHC 787
Case: [2018] NZHC 787
Decision Date: 24 April 2018

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Anamaraea Erin Pou against her sentencing by the District Court for driving while disqualified. Ms Pou had previously been convicted of driving while disqualified and had been sentenced to community detention. Following further charges of driving while disqualified, the District Court resentenced Ms Pou to home detention and disqualified her from holding or obtaining a driver’s licence for another 12 months. Ms Pou appealed the sentence on the sole issue of the applicability of section 94 of the Land Transport Act 1998, which allows for a community-based sentence in lieu of disqualification. The court found that the District Court erred in law by not considering the applicability of section 94 of the Act. The High Court held that section 94 of the Act allows for a community-based sentence instead of disqualification if the court considers it inappropriate to disqualify the offender from holding or obtaining a driver’s licence. The High Court quashed the period of disqualification and remitted the matter back to the District Court for consideration of Ms Pou’s application under section 94 to substitute a sentence of community work for a further period of disqualification.

Orders