Savieti v Police - [2019] NZHC 905

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-012

[2019] NZHC 905

BETWEEN
DAVID SAVIETI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 April 2019

Appearances:

M Pitch for Appellant D Dow for Respondent

Judgment:

29 April 2019

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 29 April 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

SAVIETI v NEW ZEALAND POLICE [2019] NZHC 905 [29 April 2019]

[1] Mr Savieti faced a charge of careless driving causing injury.1 He defended the charge but, in a reserved decision delivered on 13 September 2018, Judge Henwood found the charge proved beyond reasonable doubt.2

[2] On 12 December 2018, the Judge sentenced Mr Savieti to 80 hours community work and ordered him to pay reparation to the victim of his offending in the sum of
$665.50.3 The Judge also ordered Mr Savieti to make an emotional harm payment to
the victim in the sum of $500. Finally, she disqualified Mr Savieti from holding or obtaining a driver’s licence for a period of six months.

[3] Mr Savieti appeals against both conviction and sentence. He contends the Judge wrongly found that he had driven in circumstances that rendered his driving careless as required by the charge that he faced. On the issue of sentence, Mr Savieti contends the Judge erred in imposing a sentence of community work. He says the Judge should not have imposed such a sentence or, if it was warranted, the sentence should have been at the minimum level of 40 hours.

A The appeal against conviction The prosecution case

[4] There was no dispute regarding much of the factual background to the alleged offending. The prosecution case therefore consisted of formal admissions under s 9 of the Evidence Act 2006 together with briefs of evidence tendered to the Court by consent.

[5] Mr Savieti is employed as a stores supervisor in the kitchens at Auckland Hospital. The prosecution alleged that at some time after 4 pm on 15 November 2016 Mr Savieti finished work and began driving his vehicle home. His route took him through Mount Roskill. At this point a motorist travelling behind Mr Savieti’s vehicle in May Road said he saw Mr Savieti’s vehicle drawing away slowly from his vehicle.

1      Land Transport Act 1998, s 38(1).
2      New Zealand Police v Savieti [2018] NZDC 18395.
3      New Zealand Police v Savieti [2019] NZDC 27284.

Mr Savieti’s vehicle then crossed the centreline and collided with an oncoming vehicle. The collision injured the drivers of both vehicles.

[6] The prosecution contended Mr Savieti had decided to drive in circumstances where he was very tired after working later than he usually did. This resulted in him falling asleep and losing control of his vehicle. The resulting collision left the occupant of the other vehicle with significant injuries. The prosecution alleged that Mr Savieti’s…

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.

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Details

Case: [2019] NZHC 905
Decision Date: 29 April 2019

CaseChat Overview and Summary

The appeal in Savieti v Police was heard by Lang J in the High Court of New Zealand. The appellant, Mr Savieti, was appealing against both his conviction and sentence for careless driving causing injury. Mr Savieti argued that the District Court Judge erred in finding him guilty as he had fallen asleep without warning due to his undiagnosed sleep apnoea. Furthermore, he argued that the sentence of 80 hours of community work was excessive given his lack of culpability and his efforts to address the underlying issue. The respondent, the New Zealand Police, contended that the District Court Judge was correct in finding Mr Savieti guilty and that the sentence was appropriate.

Lang J considered the appeal against conviction first. The Judge found that Mr Savieti's obstructive sleep apnoea did not cause him to fall asleep but was one of the factors that contributed to the state of fatigue he experienced when driving home from work. The Judge found that Mr Savieti had ignored the warning signs that he was becoming sleepy and continued to drive when a prudent and reasonable motorist would have pulled off the road to rest. The Judge concluded that Mr Savieti failed to meet the standard of care required of a reasonable and prudent driver and was guilty of careless driving causing injury. Lang J upheld the appeal against conviction, finding that the District Court Judge was correct in finding Mr Savieti guilty.

Lang J then considered the appeal against sentence. The Judge accepted that a sentence having an element of deterrence was required and found that the sentence of 80 hours of community work was at the lower end of the available range. The Judge also noted that Mr Savieti had taken steps to address the underlying issue that led to his offending. Lang J dismissed the appeal against sentence, finding that the District Court Judge did not err in imposing the sentence of community work.

In conclusion, the appeal against conviction and sentence in Savieti v Police was dismissed. The District Court Judge was found to be correct in finding Mr Savieti guilty of careless driving causing injury and in imposing a sentence of 80 hours of community work.

Orders