Tuhi v Police - [2015] NZHC 516

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2015-483-00006 [2015] NZHC 516

BETWEEN
MARCIA TUHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
13 March 2015

(Heard at Wellington by AVL)

Appearances:

R Simon for appellant
N Refoy-Butler for respondent

Judgment:

18 March 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Marcia Tuhi, pleaded guilty to one charge of driving whilst her driver licence was suspended (third or subsequent).1 Judge D G Smith convicted Ms Tuhi, imposed a period of disqualification of one year and one day and sentenced her to 40 hours’ community work.2

[2] Ms Tuhi appeals against the Judge’s order of disqualification. She says that the Judge should, under s 94 of the Land Transport Act 1998, have substituted that period of disqualification with a sentence of community work.

Sentencing decision

[3] Section 94 of the Land Transport Act allows a judge, where a person faces a mandatory sentence of disqualification and has previously been disqualified, to

1 Land Transport Act 1998, ss 32(1)(c) and 32(4).
2 Police v Tuhi [2015] NZDC 3692, 21 January 2015.

impose a community-based sentence instead. Pursuant to s 32(4) Ms Tuhi faced a mandatory sentence of disqualification of one year or more. Ms Tuhi was disqualified from driving for six months in 1997 as a result of blood alcohol offending. She was subsequently convicted on three occasions of driving during that period of disqualification. On the face of it, therefore, the s 94 discretion was available.

[4] In reaching his decision, the Judge accepted the police submission that, based on the decision of this Court in Police v Smith,3 he in fact did not have jurisdiction under s 94 to substitute disqualification with a community-based sentence. The reason for that was that Ms Tuhi was charged on the basis that she was driving unlawfully because her licence had been suspended, and not because she had been disqualified.

[5] Ms Tuhi says that the Judge was wrong in law to reach that conclusion. She says the Judge did have the s 94 discretion and should have exercised it. Ms Tuhi says that, in the circumstances, a sentence of 60 hours’ community work is the appropriate outcome.

Analysis

[6] In my view, as Ms Tuhi argues and the Crown accepts, the Judge was wrong to reach the conclusion that he did not have jurisdiction under s 94 in Ms Tuhi’s case.

[7] Section 94 provides that the discretion is available where “the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence”.4

[8] In Smith, a police appeal against a decision exercising the s 94 discretion, Asher J decided that those words meant that the discretion was not available where a
driver had had their licence suspended under the demerit points system, but had not

3 Police v Smith [2012] NZHC 2346, [2012] NZAR 965.
4 Land Transport Act 1998, s 94(1)(a).

previously, on conviction, been ordered to be…

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: [2015] NZHC 516
Decision Date: 18 March 2015

CaseChat Overview and Summary

Marcia Tuhi appeals against her conviction and the sentence imposed by Judge D G Smith in the District Court. Ms Tuhi was convicted of driving while her driver's licence was suspended for the third or subsequent time. The judge imposed a disqualification period of one year and one day and sentenced her to 40 hours of community work. Ms Tuhi's appeal concerns the disqualification period, arguing that under section 94 of the Land Transport Act 1998, the judge should have substituted the disqualification period with a community-based sentence. The appeal raises the issue of whether the judge correctly exercised his discretion under section 94 of the Act.

In allowing the appeal, Clifford J held that the District Court judge was mistaken in his conclusion that he did not have jurisdiction under section 94 to substitute disqualification with a community-based sentence. The court noted that Ms Tuhi had previously been disqualified from holding or obtaining a driver's licence, and therefore, the section 94 discretion was available. The Court found that the District Court judge should have exercised the section 94 discretion and imposed a community-based sentence instead of disqualification. The Court further held that given Ms Tuhi's circumstances, a sentence of 60 hours of community work is appropriate, and ordered that within three months of the date of judgment, Ms Tuhi is to undergo the tests and examinations prescribed for a learner driver to obtain a restricted licence.

In summary, the Court allowed Ms Tuhi's appeal, quashed the period of disqualification imposed on her, increased her sentence of community work to 60 hours and ordered that she is to undergo the tests and examinations prescribed for a learner driver to obtain a restricted licence within three months of the date of judgment.

Orders