[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…

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.

Continue reading Tua v Police

Details

AGLC: Tua v Police [2013] NZHC 2994
Case: [2013] NZHC 2994
Decision Date: 12 November 2013

CaseChat Overview and Summary

This appeal is against a sentence of 14 months imprisonment for the eighteenth offence of disqualified driving, and 1 month imprisonment for theft of a computer to be served concurrently. The appellant, Wayne George Marareia Tua, has 17 prior sentences for disqualified driving and the disqualification leading to the current offence was imposed on 31 August 2011. The appellant told the police officer that he had a learner’s licence when he was stopped and was subsequently found to be disqualified. The appellant claimed he had been told by his probation officer that he had his driver’s licence back in August 2012. The appellant’s personal circumstances include a difficult upbringing and a history of drug and alcohol addiction. He has recently taken steps to change his way of life, moved away from negative influences, and secured full-time employment. The District Court judge considered the number of previous convictions and imposed a starting point of 18 months, which was then reduced by 20% due to the appellant’s plea. The court found the sentence to be inappropriate because it failed to consider the appellant’s personal circumstances and the diminishing nature of his offending. The court quashed the sentence and imposed 350 hours of community work for the disqualified driving offence and 50 hours for the theft offence, both to be served concurrently. The 14-month disqualification from holding or obtaining a driver’s licence was maintained, along with the order for reparation.

The court considered the number of previous convictions, the appellant's personal circumstances, and the diminishing nature of his offending. The court found that the District Court judge failed to fully address these factors in the sentencing notes, leading to an inappropriate sentence. The court quashed the sentence and imposed community work, considering it a more appropriate sentence in light of the appellant's personal circumstances and the diminishing nature of his offending. The court also noted the importance of the appellant's recent employment and efforts to change his way of life. The court maintained the 14-month disqualification from holding or obtaining a driver's licence and the order for reparation.

Orders