Tai v The Queen - [2018] NZHC 2422

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000047

[2018] NZHC 2422

BETWEEN
OLGA OKEROA TAI

Appellant

AND

THE QUEEN

Respondent

Hearing: 29 August 2018

Appearances:

G Tomlinson for Appellant

S J P Davison for Respondent

Judgment:

14 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 September 2018 at 10.30 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

TAI v R [2018] NZHC 2422 [14 September 2018]

Introduction

[1] Olga Tai pleaded guilty in the Opotiki District Court on 3 May 2018 to one charge of excess breath alcohol (third or subsequent).1 Judge Bidois disqualified her for 12 months and one day and fined her $700 plus costs.

[2] Judge Bidois refused Ms Tai’s application for an order under s 94 of the Land Transport Act 1998 substituting a community-based sentence for the disqualification.

[3] Ms Tai appeals the decision on the ground that the Judge made an error of law in taking too narrow a view of the scope of s 94.

The District Court decision

[4] In the District Court, Ms Tai’s application under s 94 was advanced on the basis that her two previous convictions for driving with excess blood alcohol were historic, the first entered in 1998 and the second in 2011. She had no other convictions of any kind. She was undergoing chemotherapy for cancer at the time of the proceeding and needed a driver’s licence to attend medical appointments and to support her nephew by driving him to Whakatane and Tauranga for treatment relating to his renal failure and diabetes.

[5]Refusing the application, Judge Bidois said:

I am sympathetic when you have that mandatory disqualification because of the fact you are going to have to re-sit your licence which causes problems in the future and it is a significant period, particularly when you are effectively a law-abiding person. But of course this is the third time you have consumed alcohol and driven and of course there are public interests in protecting the community from those who drink and drive. Some may say it is recidivist given it is your third, albeit it is spread over a long period of time. In my view, s 94 is specifically aimed at those who continue to drive whilst disqualified, they are the ones on the treadmill, not you. So in my view s 94 does not apply, well it does apply but I am not exercising my discretion to use it.

1 Land Transport Act 1998, s 56(1).

Appeal

[6] The scope of s 94 was argued before me on the same day in relation to another appeal.2 It is unnecessary to repeat my conclusion in the same detail.

[7]Section 94 provides:

(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,…

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 Tai v The Queen

Details

AGLC: Tai v The Queen [2018] NZHC 2422
Case: [2018] NZHC 2422
Decision Date: 14 September 2018

CaseChat Overview and Summary

Olga Tai appealed a decision by the Opotiki District Court to deny her application for a community-based sentence under s 94 of the Land Transport Act 1998 instead of a disqualification from holding or obtaining a driver’s licence. Tai pleaded guilty to a charge of excess breath alcohol, which was her third offence of this kind. The District Court Judge disqualified her for 12 months and one day and fined her $700 plus costs. Tai argued that the Judge made an error of law by taking too narrow a view of the scope of s 94.

The legal issue was the interpretation of s 94 of the Land Transport Act 1998. Section 94 allows a court to substitute a community-based sentence for the usual disqualification from holding or obtaining a driver’s licence. The court had to determine whether this section was limited to recidivist offenders or whether it had a wider scope. The District Court Judge took a narrow view of the section, applying it only to those who continue to drive while disqualified. The court had to decide whether this interpretation was correct.

The High Court held that the wider interpretation of s 94 was the correct one. The court found that the section was not limited to recidivist offenders and could be applied to those facing their second offence and liable to disqualification. The court also found that the circumstances of the case did not justify an order under s 94. The appeal was dismissed.

The final order was that the appeal was dismissed.

Orders