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…

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 Tarei v Police

Details

AGLC: Tarei v Police [2018] NZHC 2412
Case: [2018] NZHC 2412
Decision Date: 13 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Akima Terry Tarei, appealed against his sentence of six months' disqualification, six months' supervision, and 180 hours of community work, imposed by Judge Bidois. The respondent was the New Zealand Police. Mr. Tarei's counsel argued that the sentence was beyond the powers of the court under the Land Transport Act 1998. The central legal issue was whether the court had the authority to impose the sentence, and if not, what alternative sentence should be imposed.

The court considered the statutory scheme and found that the Judge had erred by imposing disqualification for a term less than the mandatory 12 months. The court noted that sections 32(4) and 94 had a binary operation within the statutory scheme, and the court must either impose disqualification for at least one year or, under section 94, no disqualification at all for third or subsequent offenders. The court quashed the Judge's decision on the grounds that it was made beyond the powers of the statute.

The court then turned to the appropriate sentence to impose in its place. The court considered the relevant circumstances of the case and the offender, including the effectiveness of previous orders of disqualification, the likely effect on the offender of a further order of disqualification, and the interests of the public. The court found that the appellant's circumstances warranted a community-based sentence under section 94, and sentenced him to six months' supervision and 180 hours of community work.

The appeal was allowed, and the original sentence was quashed. The court imposed a new sentence under section 94, consisting of six months' supervision and 180 hours of community work, cumulative on his existing community work sentence.

Orders