Taiatini v Police

[2015] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2015-463-24 [2015] NZHC 1968

BETWEEN

ROBERT TAIATINI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	(on the papers)
Counsel:	R Vigor-Brown for Appellant N Tahana for Respondent
Judgment:	19 August 2015

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 19 August 2015 at 11.00am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Rotorua
Counsel:

R Vigor-Brown, Rotorua

TAIATINI v NEW ZEALAND POLICE [2015] NZHC 1968 [19 August 2015]

The appeal

[1]      Mr Taiatini appeals against a sentence imposed by Judge Bouchier in the District Court at Rotorua, following his guilty plea to, and his conviction on, one charge of driving a motor vehicle in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public or any person.

[2]      Mr Taiatini was sentenced to a term of community detention, supervision on special conditions and was disqualified from holding or obtaining a driver licence for three years from the date of sentencing.   Mr Taiatini challenges the length of the disqualification period.  No appeal is brought against the community detention and supervision orders.

[3]      Initially,  Mr Taiatini  sought  to  expunge the disqualification  order on  the grounds of hardship caused by the need to drive a motor vehicle for a living.  When the appeal came before me on 11 August 2015, I expressed concerns about that approach  in  light  of  conflicting  evidence  before  the  Court.    The  appeal  was adjourned to 19 October 2015 for further evidence to be adduced.   Subsequently, counsel for Mr Taiatini and the Police have filed a joint memorandum in which they invite me to deal with the appeal on the papers, without further evidence.   I am prepared to do so.

Facts

[4]      At about 1.30pm on 16 January 2015, Mr Taiatini was riding a motor cycle along State Highway 5, towards Rotorua.  The traffic was moderate, although several logging trucks and tourist vehicles were on the road at that time.

[5]      State Highway 5 is a sealed two-way road which, while mainly straight, contains a series of sweeping bends in a rural location. The speed limit is 100km/h.

[6]      Mr Taiatini was seen by Police riding two abreast with another motor cycle. The  identity  of  that  rider  has  never  been  established.    When  first  observed, Mr Taiatini was travelling at 128km/h.   When Police activated flashing lights and

sirens  Mr  Taiatini  accelerated,  passing  several  vehicles.     The  Police  chased Mr Taiatini for some 27 kilometres.  His speed was recorded at about 177km/h as a number of other vehicles were passed.

[7]      On a number of occasions it was necessary for other motorists to swerve to avoid a collision with the motor cyclist riding on the wrong side of the road.  On one occasion, approaching the back of several fully laden logging trucks that he caused to swerve, Mr Taiatini overtook on a blind corner with double yellow lines.   A camper van was also required to move onto the grass verge to avoid a collision. Eventually, as Mr Taiatini entered Rotorua, he stopped.  The other rider continued, and was never apprehended.

Personal circumstances

[8]      Mr Taiatini is 59 years old.  While he has appeared before the Courts on a number of occasions, the last driving offence was in February 1993.  Including prior convictions for road safety offences, Mr Taiatini was appearing for the twenty-fifth time on a driving charge.  The probation officer detected no remorse, nor insight into the offending.  Mr Taiatini was assessed as at medium risk of reoffending.

[9]      Mr Taiatini has suffered mental health problems as a result of having been struck to the front of his head with a crowbar while engaged in gang activities. Other significant blows to the head in such circumstances has made it difficult for Mr Taiatini to integrate properly into society.

[10]     On the day on which the offending occurred, Mr Taiatini had been attending a tangi, for his late cousin.  He was someone to whom Mr Taiatini was closely bonded, and he left the tangi confused and sad.  In doing so, he did not stay for kai, nor wash his hands after leaving the urupa.  Both are omissions which breach tapu.

The District Court Judge’s decision

[11]     Judge  Bouchier,  a  very  experienced  District  Court  Judge,  described  Mr

Taiatini’s driving as “some of the most appalling … that [she had] been unfortunate

enough to read in a summary of facts, for quite some time”.1    After imposing the community detention and supervision sentences, the Judge said:

[13]     In an attempt to safeguard members of the community, whose lives and limbs were put at risk by the defendant in such a dreadful way, you are disqualified from holding or obtaining a driver’s licence for three years, commencing on today’s date.

Analysis

[12]     When giving judgment on 11 August 2015, I said:2

[7]       While I do have reservations about the length of the disqualification imposed by the District Court Judge, without other compelling evidence there would be no basis to remove the disqualification completely.  Indeed, it is difficult to see how it could be reduced by much more than 50%, on the best view of the case for Mr Taiatini.  However, Mr Vigor-Brown has taken instructions and has asked for an adjournment so that evidence can be put before the Court for consideration.  I am prepared to accede to that course. Counsel will also consider whether a better option is to apply for a limited licence to the District Court.

[13]     Mr Vigor-Brown, for Mr Taiatini, and Ms Tahana, for the Police, now ask that I consider reducing the disqualification by 50%, in which case neither wishes to make further submissions.   Ms Tahana accepts that a period of 18 months disqualification would be sufficient to meet road safety concerns.

[14]     I am inclined to agree with the approach taken by counsel.  Given the lengthy period (over 20 years) that has expired since Mr Taiatini was last convicted of a driving  offence,  and  the  background  circumstances  in  which  it  occurred,  I  am satisfied that the length of the disqualification imposed was clearly excessive.  It is understandable why any Judge would want to respond to driving of this type so severely.  But, with respect to the Judge, the length of disqualification imposed far exceeded  that  which  was  required  to  mark  the  offending,  having  regard  to  all

relevant circumstances and the other sentences imposed.

1      Police v Taiatini [2015] NZDC 5552 at para [4].

2      Taiatini v New Zealand Police [2015] NZHC 1886.

Result

[15]     The appeal is allowed.   The sentence of three years disqualification is set aside.  In substitution, a disqualification of one year and six months is imposed.  All other sentences remain intact.

[16]     Although, on 30 April 2015, the disqualification order was suspended, that was revoked with immediate effect when I gave judgment on 11 August 2015.3   The date on which Mr Taiatini’s disqualification period ends will need to take account of the time during which the order was suspended.

[17]     I thank counsel for their assistance.

P R Heath J

Delivered at 11.00am on 19 August 2015

3 Ibid, at para [10].