Tongalahi v Police
[2022] NZHC 1409
•15 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-124
[2022] NZHC 1409
BETWEEN GRAHAM BEN TONGALAHI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 June 2022 Appearances:
A J Beach for Appellant
G E Young for Respondent
Judgment:
15 June 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 15 June 2022 at 3:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
TONGALAHI v POLICE [2022] NZHC 1409 [15 June 2022]
Introduction
[1] Mr Tongalahi (the appellant) appeals out of time against both his conviction and his sentence of two years’ disqualification from driving imposed after he pleaded guilty to a charge of failing to stop for red and blue flashing lights and sirens in breach of s 52A of the Land Transport Act 1998 (the Act).1 This mandatory disqualification period was imposed pursuant to s 52A(5) of the Act on the basis that it was Mr Tongalahi’s third offence of failing to stop.2
[2] The basis of Mr Tongalahi’s appeal is that although he admits that he has previous convictions for failing to stop, they related to offending committed before the introduction of s 52A3 and at the time of his index offending, he had not previously breached s 52A of the Act. He therefore argues that he should not have received the greater penalty applicable for a third or subsequent offence against s 52A, as his index offending was his first breach of the provision.
[3] The respondent does not oppose the appeal against sentence for reasons which will be explained below.
The offending
[4] On 12 July 2019 the appellant was stopped by Police while driving a motor vehicle on Mt Albert Road, Auckland. He provided the Police with false details regarding his name. When questioned further about this he drove away from Police at speed and a pursuit was initiated. The appellant failed to stop at a stop sign and drove through a 50 kilometres per hour zone at approximately 80 kilometres per hour. The traffic at the time was described as “medium” and the road was wet.
[5] As the appellant approached a roundabout, he lost control of his vehicle and collided with another vehicle. He did not stop to check whether the occupants of the other vehicle had been injured, and drove away onto the motorway weaving in and out
1 New Zealand Police v Tongalahi [2019] NZDC 19997.
2 Land Transport Act 1993, s 52A(5)(b).
3 Section 52A of the Act was inserted on 11 August 2017 by s 41 of the Land Transport Amendment Act 2017.
of traffic across all three lanes at speeds of up to around 140 kilometres per hour. The motorway traffic was described as “medium” and the road conditions as being wet.
[6] As the appellant went beneath an overpass he slammed on the brakes of the car causing his vehicle to fishtail and almost losing complete control. He then made a U-turn and drove the wrong way up a motorway on-ramp and once off the motorway he stopped his vehicle at a nearby address and entered the property. He was subsequently located by Police hiding in the roof cavity of the property.
[7] A small amount of methamphetamine and methamphetamine utensils were located in the vehicle he was driving.
The law
[8] Section 232(2)(c) of the Criminal Procedure Act 2011(CPA), provides that an appeal against conviction must be allowed if the court is satisfied that a miscarriage of justice has occurred for any reason. Section 232(4) defines a “miscarriage of justice” as any error, irregularity, or occurrence that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity. Although “trial” is defined by s 232(5) as including a proceeding in which the appellant pleaded guilty, the grounds for appealing a conviction following a guilty plea must be exceptional.4 A conviction cannot be impugned where the appellant fully appreciated the merits of the position and made an informed decision to plead guilty.
[9] As regards the appeal against sentence, s 250(2) provides that the court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and that a different sentence should be imposed. In any other case, the court must dismiss the appeal.5
4 R v Le Page [2005] 2 NZLR 845 (CA) at [16] endorsed by the Supreme Court in Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [96] and [97].
5 Criminal Procedure Act 2011, s 250(3).
Discussion
[10] The appeal was filed out of time and therefore the appellant requires leave to bring his appeal. However as I earlier noted the respondent accepts there was an error in the sentence of two years’ disqualification from driving imposed by the District Court, and I accordingly grant him leave to appeal.
Appeal against conviction
[11]The appellant was charged with an offence under s 52A(1)(a)(ii) of the Act.
[12]Section 52A(1) provides that a person commits an offence if the person:
(a)is the driver of a vehicle that fails to stop—
(i)as soon as practicable when signalled or requested to stop under section 114(1); or
(ii)when required to stop under section 114(2); or
(b)is the driver of a vehicle that is stopped and fails to remain stopped in accordance with section 114(2A) or (3)(a); or
(c)fails or refuses to provide information or provides false or misleading information in response to a demand for information made by an enforcement officer under section 114(3)(b).
[13]Section 114(2) of the Act provides:
An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.
[14] The appellant was charged and convicted of the correct offence. Section 52A(1) creates inter alia an offence of failing to stop. While s 52A also provides for escalating penalties where a person is convicted of two or more offences against subsection (1),6 it does not create a separate offence for failing to stop on a third or subsequent occasion. In other words, a prior conviction is not an essential ingredient of the offence under s 52A(1). The appellant was correctly charged under this provision.
6 Section 52A(4)–(5).
[15] Mr Young, for the respondent, accepts that the charging document contained “one inaccuracy and two errors”:
The inaccuracy was the reference to having been convicted of an offence against s 114 on at least two previous occasions. While this statement was correct, they were not offences against s 52A(1). The first error was that it specified a maximum penalty of three months’ imprisonment and a fine of
$10,000. The latter was the maximum penalty for a first or second offence against s 52A so was correct. The other was to include reference to s 52A(5), the penalty for a third or subsequent offence.
[16] However, he submits that these errors do not render the charge a nullity. He notes that the requirements contained in ss 16 and 17 of the CPA were satisfied despite the errors. In particular, the charging document contained reference to the provision creating the offence. The errors relate solely to the disclosure of penalties. While that information is required to be disclosed under s 22(2) of the CPA, s 22(4) specifically provides that a charge “must not be dismissed solely on the grounds that it does not comply with subsection (2)”.
[17] I accept Mr Young’s submission. There is no evidence that the errors and deficiencies in the charging document have affected the appellant’s ability to consider the case against him or to instruct his counsel.7 No miscarriage of justice has occurred. The appeal against conviction will accordingly be dismissed.
Appeal against sentence
[18] The parties are agreed that there was an error in the sentence of two years’ disqualification from driving imposed by Judge Aitken. That sentence was imposed pursuant to s 52A(5) on the basis that the appellant had previous qualifying convictions for failing to stop.
[19]Section 52A(5) provides:
If a person is convicted for a third or subsequent offence against subsection (1),—
(a)the maximum penalty is imprisonment for a term not exceeding 3 months; and
7 Le Page, above n 4, at [16]–[17].
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 2 years.
[20] The appellant’s offending is the very kind of offending which led Parliament to increase the penalty for repeated offending by the enactment of s 52A:8
The third part of the bill implements increases to the penalties for drivers who fail to stop for police. When drivers attempt to flee, they endanger the safety of other road users and the police, as well as their own safety and that of their passengers. All too frequently the actions of fleeing drivers result in crashes involving serious injury or death. Increasing the penalties for fleeing drivers will send a clear message that this behaviour is unacceptable and will not be tolerated. The disqualification penalties for failing to stop will also scale up, based on whether it is the driver’s first, second, third, or subsequent offence of this kind.
[21] However, this Court has recently held that for a previous conviction to qualify for the purpose of the increased penalty under s 52A(5), it must be an offence specifically “against subsection (1)” of s 52A.9 Convictions for failing to stop under the predecessor provision to s 52A will therefore, not count towards the increasing penalties for subsequent offences provided for by s 52A.10 I shall also adopt that approach here.
[22] However in doing so, it is appropriate to note the significant benefit the appellant derives from the absence of an explicit carry-over or deeming provision in s 52A such as found elsewhere in the Act. For example, s 32(5) (relating to driving while disqualified) provides that for the purposes of s 32, a conviction for an offence against a provision of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 or the Transport Act 1962 corresponding to an offence specified in subsection (1) is to be treated as a conviction for an offence specified in that subsection. And similarly, s 56(5) (relating to driving with excess breath or blood- alcohol) provides that for the purposes of s 56 a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence specified in
8 The Hon Paul Goldsmith, then Minister for Tertiary Education, Skills and Employment on behalf of the Minister of Transport at the third reading of the Land Transport Amendment Bill (No 2) (3 August 2017) 724 NZPD 19846. The Minister’s comments mirror the explanatory note to the Bill, that it would increase the disqualification penalties for drivers who fail to stop based on the number of their offences “of this kind”.
9 See Martin v New Zealand Police [2021] NZHC 1356; and Hallmond v R [2021] NZHC 2369.
10 The predecessor provision to s 52A was s 52(4) of the same Act, which was drafted in substantially the same terms albeit with a shorter mandatory disqualification period of one year.
subsection (4) is to be treated as a conviction for an offence specified in that subsection.
[23] This absence of an explicit carry-over provision in s 52A leads to an inconsistent outcome whereby although Parliament enacted amended legislation intended to increase penalties for repeated offending of this kind because of the danger caused to the public by drivers failing to stop,11 offenders such as the appellant despite having previously offended against a corresponding provision of the Act will nevertheless receive lower penalties than they would have received if the legislative amendment had not occurred. This is illustrated by the appellant’s case where, were it not for the enactment of s 52A, he would have been sentenced to a mandatory disqualification period of 12 months following his fifth conviction for failing to stop,12 however notwithstanding the increased penalties provided by s 52A, as he has been convicted of his first offence against s 52A(1)(a)(ii), pursuant to s 52A(3) he is required to be sentenced as a first time offender in breach of s 52A to the shorter period of six months’ disqualification.
[24] The appellant’s index offending clearly endangered the public. Having failed to stop for Police he drove away at speed well in excess of the legal limit, collided with another vehicle and then sped away again without ascertaining whether the occupants of that vehicle had been injured. He drove on the motorway at around 140 kilometres per hour in wet road conditions, weaving in and out of traffic across all three lanes of the motorway, then having almost lost control of the vehicle for a second time, drove the wrong way up a motorway on-ramp. It was fortuitous that other road users were not seriously injured or killed as a result of his reckless and dangerous driving.
[25] While s 52A was intended to increase the penalties for offenders responsible for repeated failures to stop, by limiting the scope of the increased penalties to those persons convicted of offending against s 52A(1), it effectively gives those offenders
11 See (15 September 2016) 717 NZPD 13785 and 13794–13795; and (3 August 2017) 724 NZPD
19846 and 19851.
12 Under the now repealed s 52(4) of the Land Transport Act.
previously convicted of “corresponding” offending committed prior to 2017 a clean slate for the purposes of determining the duration of the disqualification to be imposed.
[26] Nevertheless, having regard to the specific carry-over provisions contained in ss 32(5) and s 56(5), and despite what appears to have been Parliament’s intention to increase the periods of disqualification for repeat offenders, I do not consider the absence of a similar provision in s 52A can be explained as unarguably being the result of a drafting error.13 Neither counsel argued that to be the case, and as I have noted the respondent accepts there was an error in the Judge’s sentencing with regard to the disqualification imposed. For these reasons I shall proceed on the basis adopted in Martin v New Zealand Police and Hallmond v R.14
[27] The appellant has previous convictions for failing to stop in 2016 and 2005.15 While the nature of that offending was essentially indistinguishable, these convictions were entered before the introduction of s 52A on 11 August 2017 by s 41 of the Land Transport Amendment Act 2017. The appellant therefore had not previously breached s 52A at the time of the index offending on 12 July 2019. His offending on that occasion was the first time he has offended against s 52A(1).
[28] Although the appellant committed two offences against s 52A(1) in the course of his offending on 12 July 2019, namely by giving false information contrary to s 52A(1)(c) and failing to stop when required contrary to s 52A(1)(a)(ii), both counsel agree that the appellant should be sentenced as a first time offender against s 52A(1).
That is plainly the correct approach.16
[29] Accordingly, I will sentence the appellant to a period of six months’ disqualification from driving pursuant to s 52A(3). That disqualification period is to be cumulative on the disqualification period of 12 months imposed by the Judge in respect of the other driving charges.17
13 See Hallmond, above n 9, at [16]; and Air New Zealand Ltd v McAlister [2009] NZSC 78, [2010] 1 NZLR 153 at [95]–[97].
14 See Martin, above n 9; and Hallmond, above n 9.
15 See Tongalahi, above n 1, at [8]–[9].
16 Mr Beach, for the appellant, submitted that the appellant should be convicted and discharged in light of the fact that he was wrongly disqualified for two years, but I do not consider that would adequately reflect the severity of the appellant’s offending.
17 At [17]. See also the Land Transport Act, s 52A(6).
Result
[30]The application for leave to appeal out of time is granted.
[31]The appeal against conviction is dismissed.
[32] The appeal against sentence is allowed. I quash the sentence of two years’ disqualification from driving and substitute in its place a sentence of six months’ disqualification from driving to be served cumulatively with the 12 months’ disqualification imposed by Judge Aitken with respect to the charges of reckless driving and failing to stop and ascertain injury.
Paul Davison J
5
3
1