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 his ex-partner’s address.  While driving to that address he was stopped for a routine licence check.  Counsel noted there was no suggestion of poor driving in the summary of facts.

District Court decision

[7]      In the Auckland District Court, Judge Fitzgerald reviewed the summary of facts and Mr Tusani’s previous convictions.  He noted that he had received written submissions  from  both  his  lawyer  and  the  Police  in  respect  of  Mr  Tusani’s application under s 94 of the Land Transport Act 1998 not to be further disqualified. Judge Fitzgerald then considered the four particular factors which he said he was bound to consider.   The first factor was the circumstances of the case as well as Mr Tusani’s personal circumstances.  Judge Fitzgerald noted that Mr Tusani was 22 years of age and was studying at MIT.   Judge Fitzgerald noted the advice he had been given that Mr Tusani had to give up his current work because of his disqualification but that he hoped to return to the workforce, at least part time initially and then eventually full time.  Without a licence Judge Fitzgerald accepted that  it  would  make  getting  employment  more  difficult.    Mr  Tusani  had  also completed an eight week CAD course in relation to the problematic use of alcohol.

[8]      The   next   factor   was   the   effectiveness   of   the   previous   orders   of disqualification.  There was no dispute that the previous orders had been ineffective. Judge Fitzgerald noted the submissions of the appellant’s counsel that their ineffectiveness should be something that weighed in Mr Tusani’s favour.   Judge Fitzgerald  was  however  of  the  view  that  it  was  not  really  a  situation  where Mr Tusani was  caught on  the constant treadmill of disqualification.   The Judge interpreted the situation as one of Mr Tusani just ignoring Court orders.   Judge

disqualification.

[9]      As to the third factor which Judge Fitzgerald was bound to consider, he accepted that the likely effect of a further order of disqualification was that it would have some impact on Mr Tusani’s future employment prospects.   The fourth and final factor was the public interest.  Judge Fitzgerald noted the public interest factors both for and against imposing disqualification.

[10]     Judge Fitzgerald concluded:

[11]      In the situation that you are in, where you have twice been before the Court for drinking and driving and then caught shortly after while disqualified, and then continuing to do that, I think it would send the wrong message to respond to that behaviour by not disqualifying you because it might cause some hardship.   In part, as I have said, it is intended that the disqualification would have that effect.  It would not be in the public interest I think to respond to the situation of repeated non-compliance with Court orders to not disqualify you, and so I am not satisfied that the grounds are made out to grant your application under s 94.

Discussion

[11]     As noted by Judge Fitzgerald, the exercise of the s 94 discretion turns on the application of the four statutory factors set out in s 94(1)(b).  Section 94(1) provides:

94       Substitution of community-based sentences

(1)       This section applies if—

(a)       the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)      the court, having regard to—

(i)       the circumstances of the case and of the offender;

and

(ii)      the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)     the likely effect on the offender of a further order of disqualification; and

(iv)      the interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)       The court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

[12]     An appeal against the refusal to grant an application pursuant to s 94 is an appeal against the exercise of a discretion.  Accordingly, it must be shown that the sentencing  Judge  wrongfully  exercised  his  discretion  by  taking  into  account irrelevant considerations, failing to have regard to material considerations, making an error in principle or that the ultimate decision was plainly wrong.1

[13]     Counsel  for  Mr  Tusani  submits  that  Judge  Fitzgerald  made  an  error  in principle by taking the view that the ineffectiveness of previous periods of disqualification weighed against exercising the s 94 discretion. Counsel also submits that Judge Fitzgerald failed to give proper consideration to the remaining factors pursuant to s 94(1)(b).

[14]     Counsel  referred  to  three  cases  in  support  of  his  submissions; Maeva  v Police,2 Yu v Police3 and Thomas v Police.4   Having carefully considered each of the cases, however, I am of the view that they do not assist me in the determination of this appeal.   Facts vary from case to case and the weight given to those facts is clearly a matter of discretion for a sentencing Judge.

[15]     In the present case, Judge Fitzgerald correctly noted that the previous orders had  been  ineffective.   This  was  a  factor that  the  Judge  had  to  consider under s 94(1)(b)(ii) and he clearly did so.  However, the weight to be placed on each factor in s 94(1)(b) is a matter for the sentencing Judge.  The ineffectiveness of previous orders does not automatically outweigh all the other statutory factors.   After consideration of all relevant factors, I am of the view that Judge Fitzgerald was

entitled to find that the public interest in keeping a repeat drink driving offender off

1      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

2      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.

3      Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006.

4      Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010.

convictions which called into question Mr Tusani’s respect for Court imposed sanctions and the appropriateness of having him back on the roads.

[16]     Mr Tusani had asked the Court to substitute a community-based sentence for the period of disqualification.  However, Mr Tusani’s previous history demonstrates that  community-based  sentences  are  no  more  effective  than  periods  of disqualification in modifying his behaviour.   On 14 June 2011, Mr Tusani was convicted of male assault female and speaking threateningly.  He was sentenced to intensive supervision for 14 months.  On the same date, he was also sentenced to 14 months intensive supervision for failure to answer District Court bail.   Within six months he was back in Court for breaching the conditions of intensive supervision. On 13 December 2011, he was convicted, ordered to pay costs and come up for sentence if called upon within nine months.  Six months later, on 12 June 2012, he was again back in Court for breaching the conditions of intensive supervision.  On that date, he was sentenced to six months supervision with special conditions and 40 hours community work.  However, he did not complete the community work and on

25 September 2012, he was convicted of a breach of community work.  Community Probation also made application to review the sentence of community work which had been imposed on 12 June 2012 and on 30 October 2012, Mr Tusani was sentenced to three months community detention as a result of that review.

[17]     In those circumstances, it seems to me that there can be no assurance that Mr Tusani would comply with a community-based sentence if one was imposed in lieu of a period of disqualification.

[18]     In conclusion, I have not been persuaded that Judge Fitzgerald’s refusal of Mr Tusani’s application under s 94 was plainly wrong.  He considered appropriately the factors set out in s 94 and did not take into account any irrelevant factors or fail to have regard to any relevant factor. There was also no error of principle.

[19]     The appeal is accordingly dismissed.

……………………………….

Woolford J