Tongalahi v Police - [2022] NZHC 1409

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…

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: [2022] NZHC 1409
Decision Date: 15 June 2022

CaseChat Overview and Summary

Mr Tongalahi (the appellant) appeals against both his conviction and 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 basis of the appeal is that the appellant argues that he should not have received the greater penalty applicable for a third or subsequent offence against s 52A of the Act, as his index offending was his first breach of the provision. The respondent does not oppose the appeal against sentence for reasons which will be explained below.

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. 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), 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. The appeal against conviction will accordingly be dismissed.

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. 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. 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. 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. I shall also adopt that approach here. The appellant has previous convictions for failing to stop in 2016 and 2005. 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). 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.

The application for leave to appeal out of time is granted. The appeal against conviction is dismissed. 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.

Orders