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  disqualified  from  holding  or  obtaining  a  driver licence; and

(b)   the court, having regard to—

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

(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,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)   the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

Circumstances of the case and the offender

[8]      The  case  is  unusual  in  that  the  appellant  appears  to  have  believed  his suspension period had ended, and it almost had.   Taken together, these features provide some support for the exceptional course contemplated by s 94.  However, the appellant’s mistake was just that; he was obliged to check the position.  And, his related driving risked harm to the children.  The appellant is fortunate a charge of dangerous driving was not proffered.

[9]      Ms Johnson submitted the case was less serious because disqualification had arisen  through  demerit  points  rather  than  Court  order.    Any  distinction  is  fine because demerit point disqualification implies recidivist speeding.   Nor is the seriousness of the offending diminished because, apparently, some rural road users occasionally place their children in the tray.  If it exists, the practice is dangerous. And should stop.

The effectiveness or otherwise of a previous order of disqualification

[10]     Mr Davison observes the appellant has been disqualified from driving for a total of five years and seven months since 1990.  But because the appellant was last disqualified from driving in 2007, that period of disqualification was effective as a deterrent, in turn implying another period would be too.   There is force in this submission.

Likely effect on the offender of a further order of disqualification

[11]     Ms Johnson submits disqualification for the period of a year would cause the appellant serious hardship.   Te Teko residents generally travel to Kawerau or Whakatane to shop.  Further disqualification would place the appellant at needless risk of reoffending.

[12]     These  points  add  little.    Kawerau  is  approximately  11  kilometres  from Te Teko; Whakatane approximately 24 kilometres.  The distances are not great, even allowing for limited, if any, public transport.  And, Ms Johnson has not pointed to anything particularly unusual in the appellant’s personal circumstances.   There is nothing before me to suggest the appellant could not make alternative travel arrangements.   Nor is there any evidence to suggest the appellant’s health, or any other matter, would make disqualification disproportionately severe.

Interests of the public

[13]     Ms  Johnson  submits  a  substitution  of  the  sentence  would  not  mean  the appellant would escape punishment; he would be punished by way of community work instead.   However, this is true of anyone seeking an order pursuant to s 94.

And, there is a public interest in the imposition of at least the presumptive penalty when the associated driving was dangerous, as it was here.   In Parata v Police I noted “too ready resort to s 94 could undermine the efficacy of disqualification as a penalty”.1

Assessment

[14]     The  appellant’s  near  correct  belief  disqualification  had  ended  provides support for a community based alternative to mandatory disqualification.  Previous periods  of  disqualification  appear  to  have  borne  fruit,  in  that  the  appellant’s offending appears to have abated.   Personal circumstances are unremarkable.   As observed, there is a public interest in routine application of the presumptive penalty, particularly when the associated driving risked harm.   Overall, the case is not an appropriate candidate for sanction other than by the presumptive penalty.

[15]     The appeal is dismissed.

……………………………..

Downs J

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