Tuhaka v Police

[2021] NZHC 2499

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-59

[2021] NZHC 2499

BETWEEN

RAYMOND PHILLIP WORMINGTON TUHAKA
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 September 2021 (VMR)

Counsel:

Z S Meehan for Appellant

J G L Garden for Respondent

Judgment:

29 September 2021

JUDGMENT OF SIMON FRANCE J

[1]                 Mr Tuhaka appeals a sentence of disqualification from driving, contending that his application under s 94 of the Land Transport Act 1998 for instead a community- based sentence should have been granted.1 In the interim the effect of the disqualification has been deferred pending appeal.2

[2]                 The disqualification arises from two charges of driving while suspended. There was also a charge of breach of supervision conditions. The sentence was five months’ community detention, 12 months’ intensive supervision and disqualification for a year and a day. The breach of supervision involved not attending when required, repeatedly.

1      New Zealand Police v Tuhaka [2021] NZDC 15079.

2      Tuhaka v Police [2021] NZDC 17807.

TUHAKA v NEW ZEALAND POLICE [2021] NZHC 2499 [29 September 2021]

[3]                 In July last year Mr Tuhaka appeared on a driving offence that should have resulted in disqualification. However, he was successful in a s 94 application.

[4]                 On its face there is not much that would seem to have supported the s 94 application. Mr Tuhaka had had one already not long ago, continued to offend and had a poor record in complying with community-based sentences which was the type of sentence he wanted the Court to impose instead of the disqualification.

[5]                 Mr Tuhaka filed an affidavit in which he claimed a desire to work. Disqualification would seriously affect his ability to do so. He explained his offending as a product of pursuing alternative income options until he got a job. These alternatives involved driving which accumulated demerit points which led to suspension. For example, there were demerit points for driving unregistered vehicles

– these were seemingly old vans he was doing up to resell. Another was a test drive of a car he had fixed – he has a diesel mechanic qualification. Mr Tuhaka accepts he should not have been driving.

[6]                 There is a job offer but the evidence is incomplete. The Court has a letter from a recruitment agency saying there is a job and asking Mr Tuhaka to complete the attached form, which requests details such as driving convictions. It is not clear that the recruiting agency or the potential employer yet knows of the previous convictions, but they may do. What is clear is that Mr Tuhaka is actively seeking employment.

[7]                 Mr Tuhaka is 47 years old. There has been a steady amount of comparatively minor offences over the last 10 years, but as noted poor compliance with sentences. Of the current sentence it seems the intensive supervision is largely being complied with, but the community detention not so much. It is hard to know, however, the nature of any breaches. Mr Tuhaka denies them, and it may be a coverage issue at the relevant address.

[8]                 Prior to the s 94 order in 2020, Mr Tuhaka’s last disqualification was in 2010. That is a significant period of compliance. A very familiar pattern of disqualification and breach looms with imprisonment a likely end point unless there is a change, and quickly.

[9]                 The driving issues are relatively recent, there appears a genuine commitment to getting work, and recent driving offending has not carried significant risk to the public. In these circumstances I consider a further opportunity should have been provided. It is appropriate to take one more chance at Mr Tuhaka sorting this out, and there does not seem to me to be any real downside in terms of public risk. If it works out the public upside is significant.

Conclusion

[10]The appeal is allowed.

[11]             The disqualification is quashed. In its place I impose the minimum sentence of 40 hours’ community work.  I recognise this is not much.   I make the point to   Mr Tuhaka that people are trying to assist but it is he who must now play his part.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Respondent