Tuna v Police HC Tauranga CRI-2011-463-006

[2011] NZHC 296

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-463-006

BETWEEN  WHARENUI TUNA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 April 2011

Counsel:         Appellant in Person

H M Booth for Respondent

Judgment:      6 April 2011

(ORAL) JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Crown Solicitor, P O Box 13063, Tauranga

Copy to:            W Tuna, 26 Farnworth Crescent, Whakatane 3120

TUNA V NEW ZEALAND POLICE HC TAU CRI-2011-463-006 6 April 2011

[1]      Wharenui Tuna appeals against a sentence imposed by Judge Bidois.1    He was sentenced to 150 hours of community work and disqualified from driving for twelve months and one day.  The Judge stated that was “the minimum mandatory period”,  and  that  the  period  of  disqualification  would  start  that  day,  namely  4

February 2011.2

The sentence appealed

[2]      Mr Tuna entered a guilty plea to a charge of driving with excess breath alcohol on 5 September 2010.  It was his third or subsequent offence.  His reading was 518 which the Judge observed was in the moderate range.   The Judge noted there was no driver fault involved and Mr Tuna’s apprehension was the outcome of a random stopping.  Mr Tuna was co-operative with the Police.  The Judge noted that while this was a third conviction for driving with excess alcohol, the two previous convictions were both in 1993.  He said that because of the significant gap of some eighteen  years,  he  was  able  to  impose  a  community based  sentence  instead  of imprisonment.

[3]      He said:3

I had indicated a fine would be appropriate but you accept that community work is more appropriate in your personal circumstances.

[4]      The Judge took into account Mr Tuna’s plea of guilty, his acceptance of responsibility, his co-operation and that the two previous drink driving offences were a long period previously.   He then imposed the sentence of 150 hours community work and ordered the mandatory disqualification of twelve months and one day.

Submissions

[5]      Mr Tuna in competent and respectful submissions to the Court today has confirmed his remorse and his regret for this offending.  His appeal has two limbs.

1      New Zealand Police v Wharenui Tuna DC Whakatane CRI-2010-087-001731, 4 February 2011.

2 At [6].

3 At [4].

[6]      First, that the period of disqualification be reduced.   He noted there was a period of something, he said, like seven months between his being charged and the Court hearing and he said he did not drive during that period.  I have explained to Mr Tuna that the effect of the legislation is for a minimum mandatory period of disqualification which is effective from the date when it is imposed, and that there is no jurisdiction for the Court to entertain an appeal on that aspect of the sentence.

[7]      Secondly, in relation to the sentence of 150 hours community work Mr Tuna explained that having served about one month of that sentence (the equivalent of 25 hours), he is finding the sentence very arduous.  Although at the time of the Court hearing he indicated to Judge Bidois that it would be an appropriate sentence, given that he is the sole carer for his five year old daughter, he is finding serving the sentence very difficult indeed.   He explained that he is only able to carry out the community work sentence in short bursts, the maximum period being eight hours on one occasion.  He would therefore prefer that sentence to be substituted with a fine, which he says he can pay by instalments.

[8]      In submissions for the Crown Ms Booth, while essentially submitting that the sentence was not manifestly excessive in any respect, drew the attention of the Court to the discretion available under s 94 of the Land Transport Act 1988 in relation to the period of disqualification from driving.  It was helpful of Ms Booth to refer this provision to the Court, but I agree with her that there is no appropriate basis upon which this discretion would have been available to the District Court Judge, even had he been minded to consider it.

Result

[9]     The sentence imposed was not manifestly excessive.   The period of disqualification is mandatory. The appeal must be, and is, dismissed.

Observation

[10]     I have pointed out to Mr Tuna that through the Probation Service he may make an application for the sentence of community work to be substituted by a

sentence of a fine.   I have indicted to Mr Tuna that whether or not he would be successful is not something upon which I can comment, but it is an avenue that is available to him.  I will provide Mr Tuna with a copy of this judgment in case that is of assistance to him if he decides to approach the Probation Service for a variation of that part of his sentence.

[11]     I thank Mr Tuna for his very able submissions today and Ms Booth for her assistance. The appeal is dismissed.