Witana v Police - [2014] NZHC 1963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000076 [2014] NZHC 1963

BETWEEN
EZEKIEL WITANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2014

Counsel:

J C Harder for the Appellant
R N Thompson for the Respondent

Judgment:

20 August 2014

JUDGMENT OF DUFFY J [re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on 20 August 2014 at 12.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland

WITANA v POLICE [2014] NZHC 1963 [20 August 2014]

[1] This is an appeal against a refusal of Judge Harvey on 13 February 2014 to exercise his discretion under s 94 of the Land Transport Act 1998 to impose a community-based sentence, rather than disqualify the appellant from driving.

[2] The appellant, Mr Witana, was convicted of the charge of aggravated driving while disqualified. This was the appellant’s third incident of driving while disqualified. Judge Harvey sentenced the appellant to 80 hours of community work and disqualified him from driving for a year.

Facts

[3] The appellant was first disqualified from driving, following his conviction for driving with an excess breath/blood alcohol level on 11 March 2011. On that occasion he was disqualified from driving for a period of six months from 11 March
2011. He completed this period of disqualification without incident.

[4] On 9 October 2012, following his second conviction for driving with an excess breath/blood alcohol level, he was disqualified from driving for a period of seven months. This time things did not go so well. On 15 March 2013, which was within the period of disqualification, he was apprehended driving a motor vehicle. On the charge of driving while disqualified, he was fined $300, together with Court costs, and disqualified from driving for a period of six months, commencing on 8 May 2013. The disqualification commenced at this time because it had to follow on from the expiry of the earlier period of disqualification.

[5] On 15 August 2013, the appellant was convicted again of driving while disqualified. On this occasion, his driving was otherwise innocuous. He was sentenced to 40 hours’ community work and disqualified from driving for six months from 8 November 2013.

[6] Before the second disqualification for disqualified driving had even commenced, on 19 October 2013, the appellant was again apprehended driving a motor vehicle. This led to the offence that is the subject of this appeal. Once again, his driving was otherwise innocuous. The 12 month period of disqualification that

was imposed for this offending commenced on 15 May 2014. It will not expire until

May 2015.

[7] The appellant was born on 6 December 1989. He would have been 23 years old when the last offence of driving while disqualified was committed.

District Court sentencing

[8] At [3] of the sentencing notes, Judge Harvey recognised that the appellant had two relatively proximate convictions for driving while disqualified. Nonetheless, the Judge decided that the appellant…

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 Witana v Police

Details

AGLC: Witana v Police [2014] NZHC 1963
Case: [2014] NZHC 1963
Decision Date: 20 August 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ezekiel Witana against a decision by Judge Harvey to disqualify him from driving for a year, following his conviction for aggravated driving while disqualified. This was Witana's third such offence. Witana's appeal centred on the refusal by Judge Harvey to impose a community-based sentence under s 94 of the Land Transport Act 1998 instead of disqualifying Witana from driving. The appellant argued that the Judge had erred in fact and law in his assessment of whether Witana was in a cycle of disqualified driving and in his interpretation of s 94.

The court found that Judge Harvey had made a material error of fact in his assessment of the facts, as he appeared to erroneously treat Witana as having only twice offended in this way. The court also found that Judge Harvey erred in law by restricting the exercise of the discretion in s 94 to cases where the offender was seen to be locked in a cycle of disqualified driving. The court found that the discretion in s 94 was not limited in its application to offenders who fail repeatedly to honour their obligations in relation to disqualification orders. The court found that the last two incidents of Witana driving while disqualified were otherwise innocuous and did not engage public safety concerns.

The court found that the appellant's circumstances warranted the exercise of the discretion in s 94. The court found that the circumstances of the offending did not call for Witana to be removed from driving vehicles on the road. The court found that the previous two orders of disqualification had not been effective and that the likely effect of the present order of disqualification was further driving. The court found that the purposes of sentencing could be achieved by a sentence other than disqualification from driving. The court found that a sentence of 150 hours of community work was a stern sentence for disregarding a court order, satisfying the requirement for denunciation and deterrence, while giving Witana an opportunity to rehabilitate himself and reducing the risk of him committing further breaches of court orders.

The appeal against the order of disqualification from driving was allowed, and in its place, Witana's present sentence of 80 hours of community work was increased to 150 hours of community work.

Orders