Toka v Police

[2012] NZHC 3347

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-61 [2012] NZHC 3347

MARETA TINA TOKA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 December 2012

Counsel:         P T Birks for the Appellant

N Tahana for the Respondent

Judgment:      11 December 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr P T Birks, Barrister, Rotorua

Ms N Tahana, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

TOKA V POLICE HC ROT CRI-2012-463-61 [11 December 2012]

[1]      Ms  Toka  appeals  against  an  order  of  disqualification  from  holding  or obtaining a driver licence for one year and one day.  This sentence was imposed for driving while disqualified. The order was made on 18 October 2012.

[2]      The formal grounds of appeal were as follows:

1.That when I pleaded guilty to the charges the Judge who took the matter stated that it was a matter of my getting off the treadmill of disqualification.  The matter was adjourned with the indication that if I obtained my licence an alternative sentence to disqualification would be imposed.

2.Another  Judge  dealt  with  the  sentencing  and  overlooked  the sentencing indication.

3.        That the Sentencing Judge acted per incuriam.

[3]      This appeal requires an outline of the procedural history.  Ms Toka had two appearances in Court on 16 May and 25 May 2012 with the second appearance resulting in a remand to 8 June for a plea to be entered.

[4]      On 8 June 2012 Ms Toka appeared.   Mr Edward represented her.   Judge Hubble recorded a guilty plea and an adjournment with the notation: “to see if she can get licence, sec 94 applies”.  This obviously was a reference to s 94 of the Land Transport Act.   It is in respect of this appearance that the appellant refers to a sentence indication.

[5]      There were three further appearances of present relevance as follows:

(a)       On 9 July 2012 before Judge Bouchier who granted an adjournment

and noted “Get license some delays”.

(b)      On 16 August 2012 there was a further adjournment by Judge Munro

who noted “for her to complete licence process”.

(c)       There was another adjournment on 17 September 2012 by Judge Weir

who noted “to obtain licence”.

[6]      Judge Weir adjourned the proceeding to 18 October 2012.  By this date Ms Toka had successfully gone through the process to obtain a new licence.  This was the process required as a consequence of indefinite disqualification which had been imposed on 4 August 2010.  The matter was accordingly in a position to proceed to sentencing on 18 October.   Judge Everitt presided on that date.   Mr Edward, as earlier noted, was the solicitor on the record, but a junior lawyer was instructed by Mr Edward to appear.  I will refer to him as counsel.  He has completed an affidavit for this proceeding.  It is convenient to set out some of the affidavit:

6.My instructions from Mr Edward were that an application had been made to the Court under section 94 of the Land Transport Act 1998, seeking a substitution of a community based sentence in lieu of a further disqualification.

7.It is the usual practice of local District Court Judges to consider an alternative sanction in lieu of a disqualification if an offender is able to get their license and meets the test under section 94 of the Land Transport Act 1998.

8.        On 18 October 2012, the applicant provided the confirmation of her

driver’s licence, which was given to the court.

9.        The Court then proceeded to sentence the applicant.

10.      At this stage the issue of an application under section 94 of the Land

Transport Act 1998 arose.

11.       It appeared that an application under the above legislation had not been done and one could not be advanced by acting Counsel with out [sic] being fully seized of the facts of this case and merits of such an application.

12.Accordingly, sentencing was done with the information before Court at that time.

[7]      There  was  discussion  between  the  Judge  and  counsel  before  the  formal sentence was imposed.   I have read the transcript of the discussion.   Matters of relevance from this are the following in particular.   Counsel did not make any submissions in relation to Ms Toka’s previous appearances and in particular did not make submissions in relation to the notation made by Judge Hubble.  The discussion includes reference to the filing of an application under s 94 of the Land Transport Act.  At one point the Judge asked: “So you are not going to be filing a 94 application?”   Counsel seemingly proceeded on the basis that a formal written application was required and, of course, that in essence is the way in which the

matter was put to him by the Judge.  There was no written application.  Counsel did not then advance any oral argument for Ms Toka in support of a sentence under s 94 (that is to say, a sentence not involving disqualification) and from the transcript of the record available to me it appears that no material submissions in mitigation were made.   I should make clear that in recording these matters I am not intending to advance any criticism of counsel.  I am seeking only to record what occurred from the record.

[8]      Although  there  was  no  record  of  what  might  be  described  as  formal submissions  in  mitigation,  counsel  did  advise  the  Judge  that  Ms  Toka  had successfully obtained a new licence.  And there was a fairly cryptic statement by counsel as follows:

… the initial start is that she has referred already to the A&D sir and got (inaudible), that she has got to get that drinking under control sir.  She has put herself in a position where she is now passed the liver function test for chronic alcohol users …

At the hearing today Mr Birks advised that his understanding is that this was reference to the medical tests Ms Toka had to undertake before she could proceed under the Land Transport Act to undertake the conventional tests for a new licence.

[9]      The Judge’s sentencing comments were understandably brief against the background of the general discussion I referred to.  He imposed a minimum term of community work of 40 hours and disqualified Ms Toka from holding or obtaining a motor  driver  licence  for  one  year  and  one  day.    There  was  another  charge  of providing false details and on that Ms Toka was convicted and discharged.

Submissions

[10]     Mr Birks accepted that the available record did not enable him to advance an argument that there had been a formal sentencing indication.  Of course, had there been  a  sentencing  indication,  with  the  sentence  imposed  being  more  than  the sentence indicated, and assuming the other criteria applied, Ms Toka would at this point be entitled to elect as to whether she wished to withdraw the guilty plea.  In any event, I agree that the information available is insufficient to establish that there

was a formal sentence indication.  I in fact agree with Ms Tahana’s submission for the respondent that there probably was no formal sentence indication.   This is confirmed by information Ms Tahana obtained from the prosecuting police officer. He recorded an observation by Judge Hubble, after the Judge had indicated that Ms Toka should endeavour to obtain a new licence for the purposes of sentencing, that there was nevertheless “no guarantee”.

[11]     The principal argument advanced on appeal by Mr Birks was that, in all of the circumstances as already outlined, this Court on appeal should consider whether the appropriate sentence is one under s 94 and therefore that there should be no order of disqualification.  I will come back to that in a moment.

[12]     The written submissions of Ms Tahana, for the respondent, indicate that some care has been taken in reviewing the record and this has been of assistance.   Ms Tahana  acknowledges  that,  contrary  to  what  appears  to  have  been  indicated  to counsel on sentencing, a formal written application under s 94 is not required.  Ms Tahana acknowledged from her review of the Court record that the Judges who had dealt with the matter before Judge Everitt had been of the view that s 94 was at the least an option for the appellant, and perhaps a real possibility.  To an extent this may be reinforced by advice from Mr Birks in respect of a practice in the Rotorua District Court, with offenders in circumstances similar to Ms Toka’s, of encouragement to a defendant to obtain a new licence so that that can be taken positively into account on sentencing.  The affidavit from counsel refers to this. And obtaining a new licence is something that would be encouraged if s 94 was at least in mind.

[13]     Previous general observations on sentence from Judges were not binding on Judge Everitt.  On the other hand, as Ms Tahana has also acknowledged, it would seem that the full procedural background to the case was not conveyed to the Judge.

Decision

[14]     Against this background I am satisfied that the proper course on this appeal is, in effect, to reconsider sentencing; in particular, to assess whether the proper

sentence  in  this  case  is  one  under  s 94  without  the  mandatory  sentence  of disqualification that would otherwise apply.

[15]     I do not  intend to  go  into detail in that  regard.   The application of  the statutory criteria has been discussed in numbers of cases.  It is a matter of balancing a number of competing interests.   Matters of relevance in this case, and without noting all matters, include the following:

(a)      Ms Toka is a solo mother with three children aged 9, 13 and 16.  The ability to drive a car lawfully will be of material assistance to her in care of her children.

(b)Ms Toka has had part time employment as a care-giver.  She has been able  to  attend  work,  on  occasions  on-call,  with  the  assistance  of friends to drive her.  It will be of material assistance if Ms Toka is able to drive herself. And being able perhaps to undertake additional hours of work will be of further assistance, not just to Ms Toka and her family, but also to the community.

(c)      All of Ms Toka’s previous offences are driving offences, or offences relating to sentences imposed for driving offences.   Apart from the current convictions, there are convictions of driving while disqualified in October 2010 and February 2010.   There were drink driving offences, with the blood or breath alcohol level in brackets, in April

1999 (791), May 2009 (1186) and February 2010 (1111).  There was a related conviction for refusing to supply a blood specimen in July

2000.

[16]     Notwithstanding Ms Toka’s instructions to Mr Birks, it is plain that there was an alcohol problem of reasonably serious dimensions because of the sequence of drink driving offences from the earlier period. And to have driven again in February

2010 with the recorded blood or breath alcohol level indicates clearly enough that a problem remains.  This, however, is not addressed in any direct way by the sentence that was imposed.   I consider this to be an important matter because, if a s 94

sentence is substituted, a sentence of supervision can be included in the sentence. This in turn is a factor going to one of the central considerations under s 94 and that is public safety.  In my judgment, and as best as these matters can be assessed, public safety in respect of Ms Toka, and assessing it against the background of previous convictions, is best served by a sentence which includes supervision.

[17]     Weighing all these matters I am satisfied that the appeal should be allowed and a sentence under s 94 imposed.  I emphasise that this appeal has been allowed for reasons which, in large measure, simply were not put before the Judge in the District Court.

[18]     Accordingly, the order for disqualification is quashed.   The sentence of 40 hours community work is increased to a sentence of 80 hours community work. This sentence  is  to  take  account  of  the  hours  of  work  already  completed  which  I understand is a total of 24 hours.   Pursuant to s 66B of the Sentencing Act the probation officer has authority to direct that up to the maximum percentage of the 80 hours of community work may be converted to training and basic work and living skills.    In  addition  there  will  be  a  sentence  of  9  months  supervision  with  the following special conditions:

(a)       To attend alcohol counselling as directed by the probation officer.

(b)To  attend  any  other  counselling  or  programs  as  directed  by  the probation officer in respect of alcohol.

Woodhouse J