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…

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: [2012] NZHC 3347
Decision Date: 11 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Mareta Tina Toka appealed against an order disqualifying her from holding or obtaining a driver's licence for a year and a day, imposed for driving while disqualified. The appeal was heard on 11 December 2012, with the grounds of appeal being that the sentencing judge overlooked a prior indication that an alternative to disqualification could be imposed if she obtained her licence. The case required an outline of the procedural history, including several adjournments indicating that Ms Toka should obtain a licence before sentencing. The sentencing judge, however, imposed the disqualification order without considering the alternative sentence under s 94 of the Land Transport Act 1998.

The court needed to decide whether the sentencing judge erred in not considering an alternative sentence under s 94 of the Land Transport Act 1998. The appeal hinged on whether there was a formal sentencing indication and if the alternative sentence could be considered despite the absence of a formal application. The court considered whether the previous judges' indications constituted a formal sentencing indication and whether the alternative sentence was appropriate given Ms Toka's circumstances.

The court found that while there was no formal sentencing indication, the previous judges' comments indicated that an alternative sentence was a possibility. The court reconsidered the appropriate sentence and determined that a sentence under s 94, which includes supervision, would better address Ms Toka's alcohol problem and public safety concerns. The appeal was allowed, the disqualification order was quashed, and a sentence of 80 hours of community work, along with 9 months of supervision with conditions to attend alcohol counselling, was imposed. The decision emphasised that the appeal was allowed because the alternative sentence was not considered by the sentencing judge.

Orders