Tarei v Police

[2018] NZHC 2412

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2018-463-64

[2018] NZHC 2412

BETWEEN

AKIMA TERRY TAREI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 September 2018
Appearances:	No appearance on behalf of Appellant R W Jenson for Respondent
Judgment:	13 September 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Crown Counsel, Tauranga

Copy to:

Gowing & Co Limited, Whakatane

TAREI v NEW ZEALAND POLICE [2018] NZHC 2412 [13 September 2018]

[1]    I preface my judgment by noting that counsel for the appellant, Mr Tomlinson, has not appeared on this occasion in court. Efforts have been made to contact his office and junior counsel in his office who have been dealing with the matter, to no avail. In circumstances in which the appeal is subject to considered written submissions from counsel for both the appellant and the respondent, and the Crown counsel has not materially amplified those submissions orally this morning, I have decided to continue to give judgment in the appellant’s absence.

[2]    Mr Tarei appeals against his sentence of six months’ disqualification, six months’ supervision and 180 hours’ community work, imposed by Judge Bidois on 20 June 2018. Mr Tarei’s counsel says the Land Transport Act 1998 (the “Act”) does not empower the Judge to make that sentence.

Approach to appeal

[3]    I must allow Mr Tarei’s appeal if I am satisfied there is an error in the sentence imposed on him, and a different sentence should be imposed. In any other case, I must dismiss the appeal against sentence.1

Was Judge empowered to impose sentence?

[4]    Mr Tarei pleaded guilty to a single charge under s 32(1) of the Act, of driving while disqualified. This was his ninth offence of this kind. Section 32(4) provides:

If a person is convicted of a third or subsequent offence against subsection (1), then:

(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.

[5]    That 12-month mandatory disqualification is subject, however, to s 94 which empowers the Court – notwithstanding s 32(4) – to order instead a community-based sentence in certain circumstances. Subsection (2) provides:

1      Criminal Procedure Act 2011, s 250(3).

Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

Subsection (3) provides for community-based sentences; supervision is one of the community-based sentences made available under subs (3A).

[6]Counsel differ as to the interpretation of Judge Bidois’ sentencing notes:

(a)Mr Tarei’s counsel argues Judge Bidois was persuaded, on the whole, a s 94 alternative was justified in the circumstances. But His Honour ultimately decided on a ‘middle-road’: imposing half the twelve-month mandatory disqualification period, and then six months’ supervision to ‘make up’ the time; and

(b)counsel for the police, Mr Jenson, says the Judge emphatically rejected the s 94 alternative, relying on his statement:2

In lieu of the s 94, you are going to get six months’ supervision with no special conditions, but there will be someone for you to talk to. [Ms Collis’ emphasis.]

To counsel’s mind, the Judge imposed both the supervision and community work pursuant to s 32(4) – as he was then entitled to do, given the maximum prescribed penalty is a term of imprisonment.3 He then suggests the Judge reduced the disqualification period from 12 to six months to give credit for Mr Tarei’s guilty plea.

[7]    These countervailing interpretations are interesting, but presently diversionary. The Judge clearly erred by imposing disqualification for a term less than the mandatory 12 months. There is no question that went beyond, indeed against, the Act’s contemplation.

[8]    Sections 32(4) and 94 have binary operation within the statutory scheme, as is evident from:

2      New Zealand Police v Tarei [2018] NZDC 17063 at [9] (emphasis mine).

3      Sentencing Act 2002, s 45(1)(a). I note, for completeness, this is a permitted sentence combination under s 19.

(a)subsection (1), which stipulates s 94 applies only if the Court “considers that it would be inappropriate to order that the offender be disqualified”; and

(b)subsection (3), which provides the Court “must impose a community based sentence” if it “determines under this section not to make an order for disqualification”.

Of course, the Court can and often does, under s 32(4), impose both imprisonment (or typically lesser alternatives, including fines) and a period of disqualification. But for third or subsequent offenders, the Court must either impose disqualification for at least one year or, under s 94, no disqualification at all.4

[9]On this basis, I quash the Judge’s decision on grounds it was made ultra vires

the statute. The remaining issue is what sentence should be imposed in its place.

Approach to sentencing

[10]   For Mr Tarei, counsel argues I should correct the Judge’s error simply by removing the disqualification penalty, and leaving the rest (or, if I decide to tinker with the sentence, doing so wholly within the s 94 framework). This position flows naturally from his interpretation of the Judge’s decision. But the respondent counsel’s counter-proposal also flows from his interpretation: he argues the sentence is ameliorated by increasing the disqualification period back up to the statutory minimum of 12 months.

[11]   Ultimately,  however, I must decide for myself whether disqualification, or a  s 94 alternative, is more appropriate in the circumstances.

[12]   Section 94(1) outlines the circumstances in which I may consider a community-based sentence more appropriate. Subsection (1)(b) identifies relevant considerations:

(i)the circumstances of the case and of the offender; and

4      Admore v Police HC Auckland CRI-2008-404-245, 3 December 2009 at [14]; Police v Body

[2013] NZHC 1586 at [7].

(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)the likely effect on the offender of a further order of disqualification; and

(iv)the interests of the public.

Pursuant to subs (1)(c), I am also to consider whether it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002, which deals with a variety of community-based sentences.

[13]   In  discussing  the  s  94  alternative  the  Judge  was  clearly  mindful  of  subs (1)(b)(ii):5

It is to be noted that in 2012 you came before the Court for driving, third or subsequent. On that occasion the Court found special circumstances so did not disqualify you. In 2017 you got no punitive sentence apart from the disqualification. In February of this year you came before the Court. You were fined $500. You were also ordered to carry out 140 hours’ community work, so you got the benefit of s 94 and had no disqualification back then. That was in recognition of you being on a treadmill, in the hope of trying to get you off the treadmill. Here you are less than two months later, you drive again.

The Judge was right to be wary of ‘rewarding’ a repeat-offender, someone who has blatantly disregarded previous disqualifications, despite being afforded the benefit of the s 94 alternative twice before.6

[14]   There is also the risk of undermining the efficacy of disqualification as a penalty if Courts allow “too ready resort to s 94”.7 The threshold to receive a s 94 substituted sentence should be higher, and progressively so, for third or subsequent offenders.

[15]   That said, the primary remedial purpose behind s 94 is well understood: it offers people the opportunity to escape a “wheel of offending”, or as Judge Bidois framed it, to “get … off the treadmill”.8 The public interest also is to be considered.9

5      New Zealand Police v Tarei, above n 2, at [4].

6      Wilson v Police [2014] NZHC 3028 at [12].

7      Parata v Police [2016] NZHC 3026 at [10].

8      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]-[34]; Wilson v Police

[2014] NZHC 3028.

9      Beeston v Police [2012] NZHC 1064 at [11] and [21].

[16]   In these respects, Mr Tarei’s counsel points out Mr Tarei lives with his grandchild in Te Teko, which is a significant distance from any shops, school, doctors, or other social facilities. The issue is not just Mr Tarei’s own travel needs, but the role he performs in his wider community. He requires a driver’s licence to allow him to drive his grandchild to and from school and sports as his elderly mother, currently filling in for him in this role, is going blind and will soon be unable to drive.

[17]Additionally, I take into account:

(a)first, Mr Tarei was arrested by police only two days before his disqualification period expired: I am reluctant to impose another 12 months after he came, finally, so close to being able to re-sit his licence and lawfully drive again;

(b)second, when he was picked up he was on his way to his community work, his stated explanation being he had missed his ride to “PD”, and so had to drive himself: while this does not excuse his offending, it mitigates its seriousness; and

(c)finally, there is the fact he pleaded guilty: the police object to the Judge apparently reducing the disqualification period on account of his plea, and rightly so, but Police counsel makes no submission as to how it should properly be taken into account instead.

The combination of these factors tip me in favour of granting the s 94 alternative.

[18]   Given Mr Tarei’s previous disqualification (and close completion), I am satisfied in the circumstances it is inappropriate to order Mr Tarei’s further disqualification, and appropriate to sentence him to a community-based sentence. That is, as the Judge noted, a last stop before a sentence of imprisonment for further offending.

Result

[19]   The appeal is allowed. The original sentence of six months’ disqualification, six months’ supervision and 180 hours’ community work is quashed.

[20]   I am satisfied the Judge’s original sentence, without the disqualification, is appropriate to meet the principles and purposes of the Sentencing Act, to “reduce the likelihood of further offending” of this kind,10 and to:11

… take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

[21]Under s 94, I sentence Mr Tarei to:

(a)six months’ supervision (with no special conditions); and

(b)180 hours’ community work, cumulative on his existing community work sentence.

—Jagose J

10     Sentencing Act 2002, s 46.

11     Section 94(3)(c).