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 disqualified.5     On the basis of that decision, Judge Smith reasoned:

[3]       … It is quite clear the Judge [a reference to Asher J in Smith] is of the view that s 94 cannot apply when a person has their licence suspended. He does not go on to consider the submission which your counsel has made as to whether, if you have previously been disqualified, that would then bring you within the Act.

[4]       I believe that that is a submission which is not intended by the legislation, that the thinking of Asher J was correct in terms of suspension and that the fact that you have previously been disqualified is not going to give you a right to apply for s 94 as opposed to somebody who has never been disqualified. …

[5]       In my view, the thinking of Asher J applies equally to yourself, despite the fact that you have previously been disqualified, and as a consequence of that, I am required to impose a mandatory period of disqualification of one year and one day which is the minimum period of disqualification. …

[9]      Justice Asher’s decision was that for the s 94 discretion to be available, there must be a prior disqualification order.  If (as was the case there) a driver has only previously been suspended, rather than being disqualified, the section does not apply.

[10]     That is not the case here.   Ms Tuhi had previously been disqualified.   The discretion was available on the plain words of s 94.   No other interpretation was called for.

[11]     I acknowledge, however, that the interpretation of s 94 on this point has not proved easy.

[12]     Justice Asher  reached  his  conclusion  after  a  careful  consideration  of the scheme of the Land Transport Act, and of the relationship between disqualification and suspension.  He was particularly influenced by the use of the words “ordered on conviction for an offence”: suspension arises under the demerit points system, he reasoned, without there being a conviction for an offence or any order subsequent

thereto.

5      Police v Smith, above n 3.

[13]     In Smith, Asher J relied on the 1998 case of Police v Raynes, a case not referred to by counsel when Mr Smith was sentenced in the District Court.   In Raynes,   another   police   appeal   against   the   exercise   of   the   s 94   discretion, Baragwanath J acknowledged it was an anomaly that suspended drivers could not avail themselves of the s 94 discretion.6   But, the Judge noted, it was just as much an anomaly that the “innocent who has committed no prior offence whatever” could not avail himself of the discretion either.7    Justice Baragwanath was not attracted to an interpretation that resolved one anomaly but not the other.

[14]     Justice  Baragwanath  reached  that  conclusion  notwithstanding  two  earlier High Court decisions disposing of similar appeals on the assumption that both a demerit suspension and a disqualification could trigger the jurisdiction.8   The Judge noted the point had not been argued on those two occasions.

[15]     In the decision on appeal in Smith, the District Court had considered itself bound by another High Court decision on the point, Pannu v Police.9

[16]     In Pannu, a driver was stopped for driving while suspended. He had no previous convictions and had not been subject to an order for disqualification.  He appealed against the Judge’s refusal to impose a community-based sentence instead of the mandatory disqualification pursuant to s 94.   On appeal it was accepted by both sides that the prior suspension gave the Court jurisdiction under s 94.  Justice Keane’s only reference to the issue was at [9] where he stated:

[9]       Section  94(2)  enabled  the  Court  to  impose  a  community  based sentence, in place of an order for disqualification, as long as the three conditions set out in s 94(1) were satisfied; as to the first of which, that in subsection (1)(a), there could have been no issue.  As a driver whose licence was suspended, Mr Pannu was deemed to be a disqualified driver.

[17]     I think those observations reflect an important distinction: the scheme of the legislation is that drivers are disqualified.  It is driver licences, not drivers, that are

suspended pursuant to s 80 of the Land Transport Act, which creates the general

6      Police v Raynes HC Auckland AP86/98, 10 November 1998.

7      At 11.

8      McFetridge v Police HC Auckland AP25/96, 20 November 1996; Shaw v Ministry of Transport

(1990) 5 CRNZ 644 (HC).

9      Pannu v Police HC Auckland CRI-2009-404-84, 2 June 2009.

penalty of disqualification.  It is not, therefore, strictly speaking correct to talk of a driver who has been suspended.

[18]     Section 82(1) describes the effect of disqualification in the following terms:

Effect of disqualification

(1)       If a person is disqualified from holding or obtaining a driver licence, the  licence  is  suspended  while  the  disqualification  continues  in force.

[19]     Section 90 provides for suspension of licence or disqualification from driving under the demerit points system.   If any person accumulates 100 or more demerit points in any two year period, they must be given notice.10   Where the person holds a

driver licence, that notice operates to suspend that licence.11   Where they do not, the

effect of the notice is to disqualify them from holding or obtaining a driver licence.

[20]     Section 94(4) provides:

(4)       A person whose driver licence has been suspended under subsection (3) may not hold or obtain a driver licence while the suspension is in force.

[21]     Thus where a person is disqualified from holding or obtaining a current driver licence and they have a licence, their licence is suspended.   By the same token, where their licence is suspended, they may not hold or obtain a driver licence, that is, they are disqualified.

[22]     In other words, suspension under the demerit points system has exactly the same effect as disqualification on conviction.  Moreover, demerit points may only be recorded in respect of a person under s 88(1) where they have been convicted of an offence.  There may, therefore, by my assessment be more support for the conclusion of Keane J in Pannu than Asher J in Smith thought was the case.

[23]     Be that as it may, it is clear that Smith is not authority that because a person appears before the Court for an offence of driving whilst their licence was suspended

10     Section 90(3).

11     Section 90(5).

they may not – notwithstanding the fact they have in terms of s 94(1)(a) previously been disqualified – avail themself of the s 94 jurisdiction to commute.

[24]     The question on appeal for me is, therefore, whether in terms of s 94(1)(b), it is appropriate to sentence Ms Tuhi to a community-based sentence.   Ms Tuhi says that is appropriate because:

(a)      She is a solo mother of three children, two of whom are 14 years old and one who is seven years old.  She has to take her children to their schools by car.  She also requires a vehicle to be able to access shops, medical care and schools.   Whilst there is a school bus, that would cost $12 per child.

(b)Substituting disqualification with a community-based sentence would enable her to move on from her learner’s licence (where she can only drive whilst accompanied) and get a restricted and ultimately a full driver licence.  Ms Tuhi submitted that 60 hours’ community work, as opposed to the Judge’s 40 hours, would be appropriate.

[25]     The Crown recognised the difficulty that Ms Tuhi faces.  At the same time, Ms Refoy-Butler pointed to the fact that Ms Tuhi has had her learner’s licence for some considerable time and has not, as yet, taken steps to obtain a restricted licence. She saw some merit in Ms Tuhi being put in a position where she could become a properly licensed driver, but was concerned that Ms Tuhi tangibly demonstrate her commitment to that outcome.

[26]     As I understand matters, Ms Tuhi accumulated sufficient demerit points for her licence to be suspended because she drove unaccompanied.  Her record shows she has been convicted of that offence on some eight occasions from 2001 onwards. That is an unsatisfactory record.

[27]     Nevertheless   I   accept   that,   in   Ms Tuhi’s   particular   circumstances, disqualification is inappropriate.   All it would do would be to extend the period before Ms Tuhi can do what is required, that is obtain a licence that entitles her to

drive on her own.   Given that she is a solo mother with children at school that is something that, realistically, she needs to be able to do.

[28]     At the same time, I agree with the Crown that the Court needs a degree of assurance that Ms Tuhi will do so.

[29]     Section 93 of the Land Transport Act enables the Court, where the holder of a driver licence is convicted of an offence concerning the driving of a motor vehicle, to order that person to undergo tests and examinations for a driver licence.  Ms Tuhi has a driver licence, a learner licence.  An order requiring  Ms Tuhi to undertake a test for her restricted driver licence would give the appropriate assurance she will do so.

[30]     Accordingly, I allow Ms Tuhi’s appeal, quash the period of disqualification imposed on her, increase her sentence of community work to one of 60 hours and order that, within three months of the date of this judgment, Ms Tuhi is to undergo the tests  and  examinations  prescribed  for a learner driver to  obtain  a  restricted licence.

[31]     The Registrar is to notify the Director of Land Transport as required by s 93(2).

“Clifford J”

Solicitors:

Stephen Ross & Raukawa Simon, Solicitors, Whanganui for the appellant. Crown Solicitor, Whanganui for the respondent.