Matiu v Police [2012] NZHC 1821 (25 July 2012)

Last Updated: 9 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-195 [2012] NZHC 1821

DAVID ROBERT MATIU

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 24 July 2012

Appearances: The appellant in person

S Locke for the respondent

Judgment: 25 July 2012

_{JUDGMENT OF CLIFFORD J}

[1] The appellant, Mr David Matiu, pleaded guilty, and was sentenced by Judge Andrée Wiltens in the District Court at Manukau to 100 hours’ community work and two years’ disqualification, on a charge of dangerous driving under s 35(1)(b) of the Land Transport Act 1998. Mr Matiu now appeals against the two year disqualification element of his sentence, arguing that that period of disqualification was manifestly excessive.

Facts

[2] As recorded in the summary of facts to which Mr Matiu pleaded guilty, on

16 March 2012 he was driving a car and stopped for a red light. When the light turned green he accelerated heavily causing the rear wheels of the car to lose traction

MATIU v POLICE HC AK CIV-2012-404-195 [25 July 2012]

as he turned left. He continued to drive along the road, following closely behind another vehicle. At the next intersection Mr Matiu swerved suddenly into the left lane. His speed was checked by a radar at 117 kilometres per hour.

[3] Mr Matiu stopped for a red light in the outside lane where police also stopped and instructed him to pull over once the traffic lights turned green. Mr Matiu gave “the finger” to the police and accelerated heavily, going forward and turning left, where his speed was checked in excess of 100 kilometres per hour.

[4] Police activated their lights and siren which they left on for the remainder of the pursuit. Mr Matiu was eventually stopped and arrested, but refused to get out of his car telling police to “fuck off” as he had done nothing wrong.

[5] The relevant area is residential and commercial, with roads of four lane width and a speed limit of 60 kilometres per hour. At the time the roads were dry with good visibility, cars parked on the side of the road, light to medium traffic and many pedestrians on the footpath. Mr Matiu overtook six vehicles during the pursuit.

[6] Mr Matiu now disputes elements of that summary of facts. As I explained to him in Court, given that that was the statement of facts he pleaded to, it is on the basis of those facts that I consider his appeal.

District Court decision

[7] In sentencing Mr Matiu, the Judge referred to the summary of facts to which Mr Matiu had pleaded guilty. He then noted Mr Matiu’s previous convictions. He acknowledged that Mr Matiu might be in danger of losing his job if he lost his licence. He then observed that a person “with this sort of record does not deserve to be driving on the roads with everybody else who does obey the laws of the land”, and imposed the now appealed sentenced. The Judge also sentenced Mr Matiu concurrently to 100 hours’ community work on a charge of failing to stop. When it was drawn to the Judge’s attention that only a fine could be imposed with respect to that charge, that charge was withdrawn by consent.

This appeal

[8] Mr Matiu represented himself and provided the Court with a letter in which he set out the grounds of his appeal. He referred to the sentence of community work that he was servicing and, more particularly, to the impact of the period of disqualification on him and his family. He needs a licence for his work, which is not unusual. His employer, who had provided a written letter to the Court, is prepared to accommodate him to a certain extent but Mr Matiu’s submission was that the two year period of disqualification was, in all the circumstances, a very long one.

[9] Mr Matiu accepts he made an error of judgment on the day, but feels that the sentence he has received goes beyond what was necessary to respond to his offending.

[10] For the police, Ms Locke focussed on the fact that Mr Matiu had driven at more than 117 kilometres an hour in a 60 kilometre an hour area, that he had lost traction at one point and that, when asked to pull over, had failed to do so. Ms Locke also referred to Mr Matiu having acted in “a contemptuous way” towards the police when they tried to stop him. I do not think that is relevant when Mr Matiu has been sentenced for dangerous driving.

Analysis

[11] Driving dangerously at speed requires an appropriate response from the Courts. But I am concerned that the Judge may have placed too great a significance on Mr Matiu’s previous convictions. Other than a careless driving charge in 2009, these now represent reasonably historic offending (excess breath alcohol x 2 1984; driving whilst disqualified 1984, 1985 and 1987; dangerous driving 1985 and failing to stop 1991). Whilst that is a concerning number of offences, I do not think they show that Mr Matiu now is a person who, as the Judge characterised him “does not deserve to be driving on the roads with everybody else who does obey the laws of the land”. In my view, the Judge over-estimated the significance of that, relatively historic, offending when sentencing Mr Matiu.

[12] By my assessment, a sentence of two years’ disqualification from driving is a fairly significant one. Such a sentence was recently upheld by the Court of Appeal in Waiwai v R.[1] There, Mr Waiwai had committed a burglary before driving on a suburban street. When a police patrol vehicle pulled Mr Waiwai over, Mr Waiwai dramatically accelerated his vehicle up onto the footpath, travelled through a garden and back onto the road. This was followed by a lengthy pursuit through an industrial area when the patrol vehicle had already activated its flashing lights.

[13] The Court sentenced Mr Waiwai to two years’ disqualification, among other sentences. Mr Waiwai appealed to the Court of Appeal arguing that the disqualification period was too length. The Court of Appeal rejected this submission. It stated that it would not disturb the period of disqualification because:

(a) the driving placed other road users at risk;

(b) it was motivated by his desire to evade the police; (c) he was driving when he was forbidden to do so; and

(d) he had already amassed a significant list of previous driving convictions at a young age.

[14] I think it is reasonably clear that Mr Waiwai’s offending was considerably

more serious than that of Mr Matiu.

[15] In my view, Mr Matiu’s offending is more equivalent to the type of offending that attracts sentences of disqualification in the range of 12 to 18 months. By my assessment a period of disqualification of one year, bearing in mind that Mr Matiu was also sentenced to 100 hours of community work, is the appropriate sentence. I therefore conclude that the period of two years’ disqualification imposed on him was manifestly excessive, quash the sentence to that extent and substitute a period of one year’s disqualification instead.

_{“Clifford J”}

Solicitors:

Meredith Connell, Auckland for the respondent ([e-mail]).

Copy to

D Matiu, 12 Kakapo Place, Papatoetoe, Auckland.

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[1] Waiwai v R [2012] NZCA 251.