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…
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CaseChat Overview and Summary
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.
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