Tua v Police

[2013] NZHC 2994

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-488-48 [2013] NZHC 2994

BETWEEN  WAYNE GEORGE MARAREIA TUA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   12 November 2013

Appearances:           K G Johnson for the Appellant

D B Stevens for the Respondent

Judgment:                12 November 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr K G Johnson, Barrister, Whangarei

Mr D B Stevens, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei

TUA v POLICE [2013] NZHC 2994 [12 November 2013]

[1]      This is an appeal against a sentence of 14 months imprisonment for the eighteenth offence of disqualified driving.  There was another charge of theft of a computer for which the sentence was 1 month imprisonment to be served concurrently.

[2]      The appellant has 17 prior sentences for disqualified driving between 1989 and 2011 (referring to the offence dates rather than the sentence dates).   Prison sentences were imposed for some of those offences but all but one were imposed in conjunction with prison sentences for other offences which were, in relative terms, more serious.   The stand alone sentence was imprisonment for 1 year for driving whilst disqualified in March 2005 with the sentence imposed in August 2006.

[3]      The disqualification leading to the current offence was imposed on 31 August

2011.  There was disqualification for 2 years for driving with excess breath alcohol on the third or subsequent occasion.  That offence was in April 2011.  On the same day the appellant was sentenced for his seventeenth disqualified driving which occurred in June 2011.  For that offence he was disqualified for 1 year.

This offence

[4]      There was no concern about the quality of the driving when the appellant was stopped on the occasion leading to this offence.  This was on 5 October 2012.  The appellant told the police officer that he had a learner’s licence.  When subsequent checks  confirmed  that  the  appellant  was  in  fact  disqualified  from  driving  until August 2013 the appellant said that he had been told by his probation officer that he had his driver’s licence back  “believing he had it back in August 2012”.   The probation officer who wrote the report for this sentence confirmed that the appellant had been told this by another probation officer – that he had been told that the disqualification ended on 31 August 2012.   However, the pre-sentence report also records that the appellant had been advised by the other probation officer “to talk to AA about getting a licence and driving again”.

[5]      This disqualified driving occurred in or near Kaeo on State Highway 10.  The theft was an offence in July 2012 in Tauranga.  It occurred when the appellant was living in a boarding house.  Another boarder left her laptop in a toilet area.   The appellant found it and took it.  It was later found hidden in his clothing.  Reparation of $260 was sought “for property stolen” although the basis for this is not clear when the summary of facts indicates that the computer was recovered by Police.

Personal factors

[6]      For reasons I will come to it is necessary to summarise in reasonable detail personal factors relating to the appellant.

[7]      He is aged 41.  It seems that he lived in or near Te Puke for all, or at least most, of his life until recently, when he moved to Kaeo with his partner of 2 years. He said he did this to get away from negative influences of associates in the Bay of Plenty.   I will quote in full what is recorded in the reasonably brief pre-sentence report:

Domestic and Cultural Circumstances

Mr Tua said he and his partner of 2 years have a five month old baby boy and they had moved North to start a new life and to get away from the negative influences of associates in Tauranga, and where he said he had continued to re-offend for most of his life.   Records indicate he had been placed in a boy’s home when he was thirteen years old for about twelve months as there were too many children in the house and he was always getting into trouble, hanging out with the wrong crowd and involved in theft and truancy.  Both his parents had passed away by the time he was released from the boy’s home and he was raised by his grandmother until 2001 when she had passed away.  He described his upbringing as pretty good.  He was raised amongst a close knit community outside Te Puke where his involvement and association with the mongrel mob was considered as “normal”.  He started using cannabis at fourteen and had become addicted to drugs but he maintains he no longer takes drugs or drinks alcohol.  Records indicate he had attended and completed an eight week drug and alcohol counselling programme in 2012.  He stated that he has never worked in paid employment for many years and he is lucky that he was able to find employment given the economic environment in Northland.  He offered no evidence to support his employment statement.

[8]      The  last  statement  is  somewhat  surprising.     Whether  an  offender  has employment would seem to be a matter of relevance to sentencing and determining whether or not the appellant was employed would presumably not have required

much by way of enquiry on the part of the probation officer.  Before sentencing, on

31 October, a letter from the contracting supervisor of the appellant’s employer was filed in the Kaikohe District Court.  Again, because of the importance I attach to personal circumstances, I will quote the letter in full:

This letter is to confirm that Wayne Tua has full-time employment with Marine Pacific Farms.  He has been working with our team since June 2013. Wayne’s position of employment is contracted to the oyster farm at Whangaroa Harbour, Kaeo.  His hours of work vary from 40 to 60 hours per week depending on weather conditions and sea tides.

Wayne is a keen, hard-working and reliable worker and very much valued as part of our team.

Please do not hesitate to contact me on1 … for any further information.

[9]      In addition to what is recorded in the pre-sentence report, other information on file does indicate that the appellant’s offending was diminishing.   13 of the previous 17 offences of disqualified driving occurred between 1989 and 1998.  This is when he was aged between 17 and 26.  In other words, putting it the other way, only four of the 17 offences have occurred more recently with one of those in 2004, one in 2005 and one in 2006.  In this context I also note that the probation officer thought it relevant to record that there had been good compliance by the appellant in

2012.  In some cases that might not be of much consequence but it is relevant when

weighed against this appellant’s previous history.

[10]     The  probation  officer  said  that  drugs  or  alcohol  were  not  factors  in  the offending and that no rehabilitative needs had been identified.

[11]     The possibility of home detention had been raised.   The probation officer recorded that the proposed address in Kaeo “is not suitable for home detention as it is situated 64 kilometres and over an hour from the Kaikohe main office and outside the response time required for monitoring”.  Community detention was a technical

possibility provided a landline was installed at the home.

1      A cellphone number was provided.

The sentencing

[12]     After  summarising  the  offences  the  Judge  referred  to  the  appellant’s statements to the police officer when he was stopped relating to his understanding as to the date the disqualification ended. The Judge said:

[4]       Ms Murray, your learned counsel, has made some submissions to me today in attempting to persuade that that was an honest belief.   I do not consider it would be.  You have pleaded guilty.  That means you knew you were not allowed to drive on the day you were caught and that you were disqualified.

[13]     The Judge then turned to the sentence.  His short reasons for the sentence are contained in the following paragraphs:

[5]       I take into account the purposes and principles of sentencing.  The lead charge is the driving whilst disqualified.   People who are told not to drive should not.  Some latitude is given to people in Northland in particular if they are caught one, two, three times for driving while disqualified but you have been caught 17 times.  In 1989 it started, three times, 1990 twice, 1991,

1992, 1995 twice, 1997, 1998, 2001, 2005, twice in 2006 and once in 2011. There must be some force to Court orders, not because of public safety or

anything  like  that,  but  because  when  the  Court  says,  as  Parliament  has

directed that they say, you are not to drive, you are not supposed to drive.

[6]       I consider a start point given those previous convictions for your driving on this the eighteenth time of 18 months is appropriate.  There could be a small uplift for the dishonesty offending.  Of itself that would not attract a term of imprisonment, but because it has attracted a term of imprisonment with the driving whilst disqualified I consider that one month cumulative for that making a total of 19 months.   You are entitled to 20 percent or thereabouts as a reduction for your plea.

[7]       I have read the pre-sentence report.  It recommends a short term of imprisonment. I follow that recommendation.

[8]       In relation to the driving while disqualified you will be convicted and sentenced to 15 months’ imprisonment. You are not given leave to apply for home detention.   You are released on the standard and special release conditions contained in the pre-sentence report.  You are disqualified for a period 14 months from today.

[14]     Imprisonment for 1 month for the theft was imposed, although the formal order was for this to be concurrent rather than cumulative as earlier indicated.  There was also an order to pay reparation of $260.

Discussion

[15]     By reference  to  other  sentences  imposed  for  this  number  of  offences  of disqualified driving, with the number of previous offences being part of the offence for which the sentence is imposed, it may be said that the starting point of 18 months is not out of range: Hume,2  Morgan,3  Hughes,4  Gutsell,5  Peterson,6  Hakiwai,7  and Koopu.8

[16]     Notwithstanding the starting points indicated by other cases I do consider, with respect, that there was error by the Judge in this sentence open to review on appeal. This is because, on the face of the sentencing notes, there was failure fully to address aspects of the offending other than the bare number of previous convictions and, more importantly, there was failure to consider the offender’s personal circumstances.   In making those observations the pressures of sentencing in the District Court, certainly when these matters are called in a busy list Court, are always understood on appeal.  But there is nothing in the sentencing comments of the  Judge  to  enable  an  inference  to  be  drawn  that  the  matters  relating  to  the appellant’s  personal  circumstances  that  I  have  referred  to  at  some  length  were brought into account.  In terms of principle in relation to review on appeal reference

may be made to R v Finau9  and M v Police,10  two decisions cited in the decision

relied on for this appeal by the respondent, Peterson v Police noted above, and

Peterson itself.

[17]     It is obviously important to consider the number of previous convictions, but there is need to look beyond the bare number.  In my judgment the following factors

positively weigh against imprisonment:

2      Hume v Police HC Christchurch A No. 86/99, 20 May 1999.

3      Morgan v Police HC Wellington AP206/00, 7 November 2000.

4      Hughes v Police HC Invercargill CRI-2003-425-000017, 31 October 2003; and HC Invercargill

CRI-2011-425-000012, 20 May 2011.

5      Police v Gutsell DC Invercargill CRI-2009-025-000378, 1 May 2009.

6      Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009.

7      Hakiwai v Police [2012] NZHC 2625.

8      Koopu v Police [2013] NZHC 1356.

9      R v Finau (2003) 20 CRNZ 333 (CA).

10     M v Police HC Auckland CRI-2004-404-440, 10 December 2004.

(a)      There may have been some confusion from the probation officer’s advice.   It was after all advice from a person in authority.   It was wrong. And that may be why, in the end, it was acknowledged that an offence was committed and a guilty plea entered.   The Judge’s scepticism  is  understandable,  and  I do  not  consider  that  this  is  a particularly  significant  consideration.     On  the  other  hand  it  is somewhat unusual that erroneous advice of this sort was given by a person who was, as I say, in a position of some authority over the appellant.

I will briefly digress in this context to note a related matter raised at the  beginning  of  the  hearing  by  Mr  Johnson,  on  behalf  of  the appellant, and arising out of the advice given to the appellant.  And in this regard I note that Mr Johnson was not acting for the appellant in the District Court.  Mr Johnson raised the possibility that there may have been erroneous advice to the appellant leading to his eventual guilty plea.  (And I understand that he entered a plea of guilty on 5

November 2012, this was vacated the same day and a not guilty plea was entered, with this being vacated and a further guilty plea entered in April 2013, and on one occasion in the course of all this there was a failure on the part of the appellant’s lawyer to come to Court.)   Mr Johnson referred to a decision of Williamson J in Millar v Ministry of

Transport11  which he said is to the essential effect that an honest

belief by a driver that he or she was not disqualified would be, or might be, a defence to a charge of disqualified driving. As I indicated to Mr Johnson, if there is some substance in this then it is a matter that will need to be pursued in another way – it cannot be addressed by me on this appeal.

(b)Returning to the factors which I consider weigh against imprisonment the  next  is  the  indication  from  the  record  that  offending  was

diminishing.

11     Millar v Ministry of Transport HC Dunedin AP14/86, 5 June 1986.

(c)      The matter of central importance in my judgment is the uncontested evidence that the appellant had taken active steps of his own volition to change his way of life; to move himself and his partner well away from the area and influences where he had been committing offences. On the uncontested evidence he has now taken steps to turn his life around.   He and his partner have a young child.   Importantly, the unchallenged evidence is that he has paid employment, and the first paid employment he has had for many years.

[18]   The relevant purposes and principles of sentencing are not confined to punishment for disobeying Court orders.  The interests of the community as a whole are not met simply by considering punishment and addressing the bare facts of the offence itself.   All of the relevant  principles and purposes of sentencing in my judgment are not met in all the circumstances of this offence and this offender by sending him to prison.

[19]     Home detention might very well be warranted but it is not the only sentence available for dealing properly and appropriately for this offence and this offender.  I referred earlier to the practical difficulties relating to home detention in Kaeo.  I infer from the probation officer’s advice that the difficulty arises in respect of the constraints under s 80A(2)(b) of the Sentencing Act.   It is unfortunate that, as a consequence, if I understand the matter correctly, people living in some parts of New Zealand cannot be sentenced to home detention in their own homes and their own communities, and where they may have work available.   The  evidence that the appellant has paid employment, as I have indicated, is an important consideration and this job is near his home.  There are also some practical or technical difficulties relating to the possibility of community detention.

[20]     Having regard to all of these considerations, and again emphasising that I do consider that all of the relevant purposes and principles of sentencing have been taken into account and can be met, I am satisfied that the appropriate sentence is one of community work.   I would add, against this lengthy background, that one additional reason for that particular sentence is to seek to encourage this appellant to now take the considerable opportunity that he is given to ensure that the efforts he

has apparently been making to turn his life around continue, and that he does from this time avoid further offences.  At the risk of stating the obvious, that will include the necessity of ensuring that he does not drive for any reason until he is lawfully able to do so at the end of the disqualification that will apply, and with his then holding a current driver licence.

[21]     I  would  add  one  other  general  observation  as  to  the  reasons  for  this conclusion.  This is that the Sentencing Act in ss 16 and 55 indicates that community work is intended to be imposed not only as a sentence in its own right, but also in appropriate cases as an alternative to prison.12

[22]     The maximum hours of community work that can be imposed are 400 hours. The maximum is a substantial period.  But this case – the offender and the offence – requires a reasonably lengthy period of community work.   In addition there is the theft.

[23]     For these reasons the sentences and disqualification imposed are quashed. The following sentences and disqualification are substituted:

(a)       For the offence of disqualified driving the appellant is sentenced to

350 hours community work.

(b)Also   for   the   offence   of   disqualified   driving   the   appellant   is disqualified from holding or obtaining a driver licence for 14 months with this commencing on 31 October 2013.13

(c)      For the theft, the appellant is sentenced to 50 hours community work to be served concurrently with the 350 hours.

(d)Some of the hours of community work may be spent in training under s 66A of the Sentencing Act up to the maximum as determined by the

probation officer pursuant to s 66B.

12     Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA55.4].

13     This is the length of disqualification imposed in the District Court.  The order has been restated in this way to make the start date clear.

[24]     The order for reparation remains.  This statement has been added.  It was not

made clear in the oral judgment that the order for reparation was to remain in force.

Woodhouse J