Te Aotonga v Police - [2019] NZHC 1274

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000036

[2019] NZHC 1274

BETWEEN
ROBIN BOBBY TE AOTONGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 June 2019

Appearances:

C A Gentleman for Appellant J M Sutton for Respondent

Judgment:

6 June 2019

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 6 June 2019 at 3.00pm

Registrar/Deputy Registrar

Solicitors/counsel: Gowing & Co, Whakatane Crown Solicitor, Tauranga

TE AOTONGA v NEW ZEALAND POLICE [2019] NZHC 1274 [6 June 2019]

Introduction

[1] The appellant, Ms Te Aotonga, appeals a decision given by Judge Bidois in the District Court at Whakatane on 23 March 2019.1

[2] Ms Te Aotonga entered a guilty plea to a charge of refusing to permit a blood specimen to be taken, having been required to do so by an enforcement police officer, contrary to s 60(1)(a) of the Land Transport Act 1998 (“the Act”). She made an application under s 94 of the Act seeking a community-based sentence, rather than disqualification from holding or obtaining a driver’s licence. Judge Bidois sentenced her. He fined her $400 plus costs. He declined the s 94 application and imposed a six month period of disqualification.

[3] Ms Te Aotonga, through her counsel, Ms Gentleman, submitted that the Judge erred in declining her application under s 94 of the Act. Ms Gentleman argued that the Judge failed to properly take into account Ms Te Aotonga’s personal circumstances and that he further erred in considering the public interest as he was required to do under the section.

[4] The appeal was opposed by the respondent. Ms Sutton, for the police, argued that Judge Bidois did not materially err in law when he declined the application, and that his exercise of the discretion conferred by s 94 was correct.

Relevant factual background

[5] On 30 September 2019, Ms Te Aotonga was driving her motor vehicle. She was pulled over at 1 am in the morning. There was no suggestion that she was driving badly at the time. Rather, she was pulled over by the police (I assume at a check point) and asked to undertake a breath test.

[6] Ms Te Aotonga refused to undergo a breath test. She was taken back to the police station and she was then asked to give a blood sample. She refused to permit a blood sample to be taken. As a result, Ms Te Aotonga was charged pursuant to s 60(1)(a) of the Act.

1 Police v Te Aotonga [2019] NZDC 6575.

[7] As noted, Ms Aotonga promptly entered a guilty plea to the charge. She applied for a community-based sentence under s 94 of the Act and filed an affidavit in support. She explained in her affidavit that she was returning home on the evening in question, having been at a bar listening to a band. She arrived at the bar at around 10
– 10.30 pm in the evening, and she was…

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 Te Aotonga v Police

Details

AGLC: Te Aotonga v Police [2019] NZHC 1274
Case: [2019] NZHC 1274
Decision Date: 6 June 2019

CaseChat Overview and Summary

In this case, Ms. Robin Bobby Te Aotonga appealed against the sentence imposed by Judge Bidois in the District Court at Whakatane. The appellant had pleaded guilty to a charge of refusing to permit a blood specimen to be taken, having been required to do so by an enforcement police officer, contrary to s 60(1)(a) of the Land Transport Act 1998. She sought a community-based sentence, rather than disqualification from holding or obtaining a driver’s licence, under s 94 of the Act. However, Judge Bidois declined the s 94 application and imposed a six-month period of disqualification. The appellant appealed against the decision, arguing that the Judge erred in declining her application under s 94 of the Act.

The court was required to decide whether the District Court judge erred in declining the appellant’s application under s 94 of the Land Transport Act 1998. The court also had to consider whether the appellant's personal circumstances and the public interest were appropriately taken into account in the decision-making process.

The High Court found that the District Court judge erred in his application of the section. The court held that while there was a public interest in ensuring that potentially dangerous drivers were kept off the roads, there was also a public interest in ensuring that a solo mother of four children, with a fifth child due shortly, should be able to properly provide for the proper care and needs of her children. The court considered the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, and held that denunciation and deterrence could be satisfactorily met by a fine and a community-based sentence. The appeal against the sentence was allowed to the extent that the sentence of disqualification was quashed. The matter was remitted back to the District Court for re-sentencing.

The final orders of the court were that the appeal against the sentence was allowed, and the disqualification from driving was set aside. The fine imposed by Judge Bidois remained in place. The matter was remitted back to the District Court for re-sentencing to impose an appropriate community-based sentence.

Orders