Tawa v Police - [2016] NZHC 696

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000072 [2016] NZHC 696

BETWEEN
TROY TAWA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 April 2016

Appearances:

J D Pennick for Appellant
J V Angelson and GM Woods-Child for Respondent

Judgment:

15 April 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 15 April 2016 at 11:30 am pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors: Meredith Connell (Crown Solicitor), Auckland, for Respondent

Counsel: JD Pennick, Barrister, Auckland, for Appellant

TAWA v NZ POLICE [2016] NZHC 696 [15 April 2016]

Introduction

[1] This is an appeal against a sentence of 23 months imprisonment imposed on

Mr Tawa by Judge RG Ronayne in the Auckland District Court on 23 February

2016.1 Mr Tawa had earlier pleaded guilty to:

(a) One charge of driving with excess blood alcohol being his fourth conviction for the same charge.2 This charge carries a maximum penalty of two years imprisonment.

(b)Two charges of driving while disqualified being his sixth and seventh convictions for the same charge.3 These charges carry maximum penalties of two years imprisonment.

(c) One charge of careless driving.4 This charge carries a maximum penalty of a fine not exceeding $3,000.

[2] Mr Tawa appeals on the basis that the sentence of 23 months imprisonment is manifestly excessive and, furthermore, that the Judge should have substituted the sentence of imprisonment with a community-based sentence.

Background

[3] The charges of which Mr Tawa was convicted arose out of two separate incidents. The first incident occurred on 21 August 2015. At about 6:45 pm Mr Tawa was driving a small 50cc motorcycle along a footpath in Taniwha Street, Glen Innes. It was dark and the motorcycle did not have headlights attached to it. Mr Tawa drove from the footpath across the road in front of a motor vehicle. He crashed into the front of the vehicle and was knocked off his motorcycle. He was taken to hospital where he was treated for a broken leg and a head wound. A blood test revealed that Mr Tawa’s blood alcohol content was 192 milligrams of alcohol per
100 millilitres of blood.

1      Police v Tawa [2016] NZDC 3094.
2      Land Transport Act 1998, ss 56(2) and 56(4).
3      Land Transport Act 1998, ss 32(1)(a) and 32(4).
4      Land Transport Act 1998, s 37(1).

[4] The second incident occurred on 7 November 2015. Mr Tawa was found driving the same motorcycle on Elstree Avenue, Glen Innes. The police stopped Mr Tawa because the motorcycle was not registered. Subsequent inquiries revealed that Mr Tawa had been disqualified from driving. Mr Tawa claims he had repaired the motorcycle and was intending to give it to his 15 year old daughter. He says he was test driving the motorcycle to make sure it was working.

[5] Mr Tawa has a number of convictions for drink-driving and driving while disqualified and although he has been sentenced to short terms of imprisonment on two…

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 Tawa v Police

Details

AGLC: Tawa v Police [2016] NZHC 696
Case: [2016] NZHC 696
Decision Date: 15 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Tawa appealed against a sentence of 23 months imprisonment imposed by the Auckland District Court. The appellant had pleaded guilty to four charges arising from two separate incidents, including driving with excess blood alcohol, driving while disqualified, and careless driving. The appellant's blood alcohol content was almost two and a half times the legal limit at the time of the offence, and he was indefinitely disqualified from driving at the time of the incident. The appellant had a history of drink-driving and driving while disqualified convictions but had not been convicted of any drink-driving offences for eight years and four months prior to the incident. The appellant appealed on the basis that the sentence was manifestly excessive and that the judge should have substituted the sentence of imprisonment with a community-based sentence. The court found that the sentence was manifestly excessive, and quashed the sentences of imprisonment imposed on the charge of driving with excess blood alcohol and charges of driving while disqualified. The appeal was allowed, and the sentences of imprisonment were substituted with six months community detention and 12 months intensive supervision.

Orders