Tohu v Police - [2015] NZHC 2009

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-176 [2015] NZHC 2009

BETWEEN
HORACE TOHU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 August 2015

Counsel:

M English for the Appellant
B Thompson for the Respondent

Judgment:

24 August 2015

JUDGMENT OF DUFFY J

Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Waitakere

TOHU v NEW ZEALAND POLICE [2015] NZHC 2009 [24 August 2015]

[1] In the District Court the appellant, Horace Tohu, pleaded guilty to a variety of driving offences, and offences of receiving, intentional damage and breach of parole. He was sentenced on 23 June 2015 by Judge Thomas to 12 months’ imprisonment for the driving offences and seven months’ imprisonment for the other offending. He was disqualified from driving for a total of 11 years.

[2] The appellant now appeals solely against the length of disqualification imposed on the basis that it was manifestly excessive. The respondent accepts that this is the case and suggests that disqualification for a period of between six and eight years would be appropriate.

Background

[3] On 27 January 2015 a stolen motor vehicle was parked in the appellant’s driveway. On 2 February 2015 the appellant drove the vehicle to Henderson. He parked it on the roadside and walked up a driveway, opened the door of a car parked in the driveway and removed an iPad tablet. The appellant drove away in the stolen vehicle. He was seen by police driving in a dangerous manner, but accelerated away from them when they pulled up behind him and approached the vehicle. Police pursued the appellant with red and blue flashing lights and siren. The defendant failed to stop and attempted to flee from police. He accelerated to well over 100 km per hour, overtaking cars and crossing on to the wrong side of the road.

[4] The appellant drove into a car park in front of a shopping centre. He drove through the car park at speed, completing three circuits of the car parks before driving out of the car park the wrong way and then accelerating up the road. While doing so he temporarily crossed to the wrong side of the road. Then he accelerated to well over 100 km per hour, crossing a busy intersection through a red light. He again crossed on to the wrong side of the road, overtaking a number of cars at speed. He lost control at another intersection and crashed into the curb, ripping the front wheel off the car as it ground to a halt. The appellant ran from the scene before being detained by members of the public and police.

[5] As a result of this behaviour, the appellant was charged with:

(a)       Unlawfully getting into a motor vehicle; (b)     Reckless driving;
(c)       Failing to stop for red and blue flashing lights (third or subsequent); (d)       Failing to remain stopped for an enforcement officer; and
(e)       Theft of an iPad

[6] On 2 February 2015 the appellant appeared before the District Court on unrelated…

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: [2015] NZHC 2009
Decision Date: 24 August 2015

CaseChat Overview and Summary

The appeal in Tohu v Police was heard by Duffy J in the High Court of New Zealand. The appellant, Horace Tohu, was convicted of various driving offences and sentenced to imprisonment and disqualification from driving for a total of 11 years. The appellant appealed solely against the length of the disqualification, arguing it was manifestly excessive. The respondent accepted that the disqualification was excessive but submitted that a period of between six and eight years would be appropriate. The court had to determine whether the disqualification imposed was manifestly excessive and, if so, what an appropriate length of disqualification should be. Duffy J held that the disqualification imposed was manifestly excessive. The court must strike a balance between the principle that long periods of disqualification are typically counterproductive and the principle that the court must keep dangerous drivers off the road for as long as reasonably possible. The appropriate length of disqualification depends on the circumstances of each case. Duffy J found that the offending was similar to that in Smith v Police, where five years' disqualification was imposed. Although some common aggravating factors were not present in this case, the offending was very serious and involved multiple aggravating factors. The offending was less serious than Hitchens v R, where a seven-year period of disqualification was adopted. Duffy J imposed a five-year disqualification for reckless driving and a one-year cumulative disqualification for failing to stop, totalling six years' disqualification. The appeal was allowed, and the total disqualification of 11 years was set aside, replaced with a six-year disqualification.

Orders