Tusani v Police - [2013] NZHC 1961

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000161 [2013] NZHC 1961

BETWEEN IOPU DIXON TUSANI Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 July 2013

Appearances:

L Wilson and A Kemp for Appellant
J Collins for Respondent

Judgment:

6 August 2013

JUDGMENT OF WOOLFORD J [on appeal against sentence]

This judgment was delivered by me on Tuesday, 6 August 2013 at 4:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

TUSANI v POLICE [2013] NZHC 1961 [6 August 2013]

Introduction

[1] On 8 May 2013, Iopu Dixon Tusani was sentenced to 100 hours community work and disqualified from driving for a year following his plea of guilty to driving while disqualified, having been convicted of driving while disqualified on two previous occasions.

[2] At the time of the sentencing, Mr Tusani made application for a community- based sentence in lieu of a further period of disqualification pursuant to s 94 of the Land Transport Act 1998. His application was not granted. Mr Tusani now appeals on the basis that the sentencing Judge was wrong not to grant his application under s
94.

Factual background

[3] Mr Tusani is now 23 years of age. I turn first to his driving history. On

22 January 2010, when he was just 19, he was disqualified from driving for three months following his conviction for driving while his blood alcohol level exceeded that permitted for a person under 20 years of age. On 5 April 2010, he drove while disqualified and received another six months disqualification from 24 August 2010, the date on which the sentence was imposed. On 9 March 2012, when he was 21, he was disqualified from driving for six months for driving while his breath alcohol level exceeded that permitted for a person over 20 years of age. Just over six weeks later, on 25 April 2012, he drove while disqualified and received another seven months disqualification from 9 September 2012, the date on which the earlier period of disqualification expired.

[4] As to the facts of the present offending, on 29 June 2012, before the further period of seven months disqualification commenced, Mr Tusani again drove while disqualified. At about 2.40 am that morning, he was stopped for a routine licence check while driving a motor vehicle northbound on State Highway 1 at Greenlane, Auckland. In explanation, he told the police officer that he knew he was disqualified but he was driving to his ex-partner’s house to see his sick son.

[5] At the District Court hearing, counsel explained that Mr Tusani received a text message from his ex-partner on the previous evening asking him to take their two year old son to the hospital. Mr Tusani made several attempts to find alternative means of transport. However, they were unsuccessful.

[6] Counsel further explained that Mr Tusani was a new father and was distressed at the news that his son was sick. Seemingly out of options, he made the decision to drive to…

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 Tusani v Police

Details

AGLC: Tusani v Police [2013] NZHC 1961
Case: [2013] NZHC 1961
Decision Date: 6 August 2013

CaseChat Overview and Summary

Iopu Dixon Tusani appealed against his sentence of 100 hours community work and a one-year disqualification from driving, imposed after he pleaded guilty to driving while disqualified. This followed two previous convictions for driving while disqualified. Tusani applied for a community-based sentence instead of further disqualification, under s 94 of the Land Transport Act 1998, but this was denied. Tusani's application was based on the ineffectiveness of previous disqualification periods, his personal circumstances, the impact on his employment prospects, and the public interest. The court was required to decide whether the sentencing judge correctly exercised the discretion under s 94. The court considered whether the sentencing judge appropriately applied the statutory factors and whether the refusal of the application was plainly wrong. The court found that the sentencing judge had correctly noted the ineffectiveness of previous orders but appropriately weighed this against other factors. The judge's decision was not an error in principle, and the court was not persuaded that the refusal of the application was plainly wrong. The appeal was dismissed.

Orders