Tarei v Police - [2017] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2017-463-000020 [2017] NZHC 1270

BETWEEN
AKIMI TERRY TAREI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 June 2017

Counsel:

KC Johnson on behalf of RM Plunket for Appellant
SJP Davison for Respondent

Judgment:

12 June 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 12 June 2017 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Potts & Hodgson Ltd, Opotiki.
RM Plunket, Whakatane. Crown Solicitor, Tauranga.

TAREI v POLICE [2017] NZHC 1270 [12 June 2017]

The appeal

[1] The appellant pleaded guilty to a third or subsequent offence of driving while disqualified. Judge Cameron disqualified him from holding or obtaining a driver’s licence for a period of one year, the presumptive penalty pursuant to s 32(4) of the Land Transport Act 1998. The appellant contends the Judge erred in refusing to exercise the discretion under s 94 of that Act to substitute a community-based sentence.

Background

[2] On 1 January 2017 the appellant was suspended from driving for three months through demerit points. His suspension period was to end on 1 April 2017.

[3] At approximately 3.20 pm on 21 March 2017, the appellant drove his ute on State Highway 30, Te Teko. He was stopped by Police because his two children were sitting in the tray. The appellant said he was taking his children to rugby training, and thought his suspension had finished a week earlier.

[4] The appellant is 47. He has a not insignificant criminal record, including convictions for offences contrary to the Land Transport Act: six for driving while disqualified or suspended, two for driving with excess breath alcohol, and one for driving unlicensed with excess breath alcohol. Most are now a little stale; his most recent was for offending in January 2012. On that occasion, the appellant drove while suspended as a third or subsequent offence. He was not disqualified because of what are described in his list of convictions as “special circumstances”. It is not clear whether s 94 or s 81 of the Act was engaged; the latter creates a jurisdiction similar to the former when there are “special reasons relating to the offence”.

[5] The appellant appeared before Judge Cameron on 19 April 2017. The Judge did not accept community work should be imposed instead of disqualification. Unsurprisingly, the Judge was troubled by the dangerous nature of the driving vis-à-vis the children sitting in the tray of the ute, rather than inside it—and restrained by seat belt.

[6] Ms Johnson contends as the Judge did not expressly address all the considerations listed in s 94(1)(b) of the Land Transport Act, the issue should be approached afresh. Mr Davison submitted the appeal should be dismissed, but accepted the case should be approached this way. I do so.

Analysis

[7] Insofar as relevant, s 94 of the Act provides:

94 Substitution of community-based sentences

(1) This section applies if—

(a) the offender has previously been ordered on conviction for an offence to be…

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.

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Details

Case: [2017] NZHC 1270
Decision Date: 12 June 2017

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Akimi Terry Tarei against a decision of Judge Cameron, who had disqualified him from holding or obtaining a driver's licence for a period of one year following a conviction for driving while disqualified. The appellant argued that Judge Cameron erred in not substituting a community-based sentence instead of the disqualification. The appellant had a history of similar offences, including six previous convictions for driving while disqualified or suspended, and two for driving with excess breath alcohol. The dangerous nature of the driving, with his children sitting in the tray of his vehicle, was a significant factor in the judge's decision. The court was required to determine whether Judge Cameron correctly exercised the discretion under s 94 of the Land Transport Act 1998 to substitute a community-based sentence.

The court considered the circumstances of the case and the offender, 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 appellant's near-correct belief that his disqualification period had ended, along with previous periods of disqualification, provided some support for a community-based alternative. However, the dangerous nature of the driving, with his children at risk, and the public interest in the imposition of at least the presumptive penalty, weighed against such a substitution. The court found that the case was not an appropriate candidate for a sanction other than by the presumptive penalty, and dismissed the appeal.

Orders