Tohu v Police [2015] NZHC 2009 (24 August 2015)

Last Updated: 3 September 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-176 [2015] NZHC 2009

BETWEEN	HORACE TOHU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 August 2015
Counsel:	M English for the Appellant B Thompson for the Respondent
Judgment:	24 August 2015

_{JUDGMENT OF DUFFY J}

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Waitakere

TOHU v NEW ZEALAND POLICE [2015] NZHC 2009 [24 August 2015]

[1] In the District Court the appellant, Horace Tohu, pleaded guilty to a variety of driving offences, and offences of receiving, intentional damage and breach of parole. He was sentenced on 23 June 2015 by Judge Thomas to 12 months’ imprisonment for the driving offences and seven months’ imprisonment for the other offending. He was disqualified from driving for a total of 11 years.

[2] The appellant now appeals solely against the length of disqualification imposed on the basis that it was manifestly excessive. The respondent accepts that this is the case and suggests that disqualification for a period of between six and eight years would be appropriate.

Background

[3] On 27 January 2015 a stolen motor vehicle was parked in the appellant’s driveway. On 2 February 2015 the appellant drove the vehicle to Henderson. He parked it on the roadside and walked up a driveway, opened the door of a car parked in the driveway and removed an iPad tablet. The appellant drove away in the stolen vehicle. He was seen by police driving in a dangerous manner, but accelerated away from them when they pulled up behind him and approached the vehicle. Police pursued the appellant with red and blue flashing lights and siren. The defendant failed to stop and attempted to flee from police. He accelerated to well over 100 km per hour, overtaking cars and crossing on to the wrong side of the road.

[4] The appellant drove into a car park in front of a shopping centre. He drove through the car park at speed, completing three circuits of the car parks before driving out of the car park the wrong way and then accelerating up the road. While doing so he temporarily crossed to the wrong side of the road. Then he accelerated to well over 100 km per hour, crossing a busy intersection through a red light. He again crossed on to the wrong side of the road, overtaking a number of cars at speed. He lost control at another intersection and crashed into the curb, ripping the front wheel off the car as it ground to a halt. The appellant ran from the scene before being detained by members of the public and police.

[5] As a result of this behaviour, the appellant was charged with:

(a) Unlawfully getting into a motor vehicle; (b) Reckless driving;

(c) Failing to stop for red and blue flashing lights (third or subsequent); (d) Failing to remain stopped for an enforcement officer; and

(e) Theft of an iPad

[6] On 2 February 2015 the appellant appeared before the District Court on unrelated matters and was ordered to remain on electronically monitored bail. An electronic bail bracelet was placed on his ankle. At some time on 26 March, the appellant cut the bracelet off his ankle.

[7] On the morning of 30 March, the appellant was driving a stolen motor vehicle. The vehicle was observed by a police helicopter. A police unit followed the vehicle along the road until the appellant was forced to stop due to heavy traffic at an intersection. Police ran to the vehicle and took the appellant into custody. In respect of this offending, the appellant was charged with:

(a) Receiving;

(b) Intentional damage; and

(c) Breach of parole

[8] The appellant pleaded guilty to these charges.

Sentencing

[9] On sentencing, the Judge adopted a starting point of three months’ imprisonment for failing to stop, three months’ imprisonment for reckless driving, and six months’ imprisonment for unlawfully getting into a motor vehicle. This last starting point was concurrent with three months’ imprisonment for theft of an iPad. This resulted in a starting point of 12 months’ imprisonment, which the Judge uplifted to 16 months to reflect the appellant’s previous dishonesty offending. The Judge then noted that ordinarily he would adopt a starting point of 12 months’ imprisonment for the other set of offending. However, recognising the totality of the offending, he took a starting point of nine months’ imprisonment, resulting in a total

starting point of 25 months’ imprisonment. The Judge then stated that he would allow a 25 per cent discount for the early guilty plea.

[10] Accordingly he arrived at a total sentence of 19 months’ imprisonment. This consisted of:

(a) Six months’ imprisonment for getting into a motor vehicle; and a concurrent sentence of three months’ imprisonment for theft of an iPad;

(b) A cumulative sentence of three months’ imprisonment for failing to

stop, third and subsequent;

(c) A cumulative sentence of three months’ imprisonment for reckless

driving; and

(d) A cumulative sentence of seven months’ imprisonment on receiving, concurrent with two months’ imprisonment for each of the charges of intentional damage and breach of parole.

[11] The disqualifications imposed by the Judge are noted in two addendums to the judgment. He imposed a 10 year disqualification on the charge of reckless driving and a cumulative 12 months’ disqualification for failing to stop for red and blue flashing lights. The second addendum notes that the Judge came to the decision to disqualify the appellant for a total of 11 years based on his previous convictions which demonstrated that the appellant had driven dangerously, carelessly and recklessly on a number of occasions and had driven to evade police on multiple occasions. The Judge noted that the appellant had driven recklessly again in an attempt to get away from the police despite the number of previous convictions. Further, once the appellant had begun driving away from the police, there was “instance after instance of genuinely life-threatening driving”. The Judge considered that nothing would stop the appellant and it was a miracle that the appellant had crashed without killing anyone. The Judge considered that the appellant’s record showed that if he had the chance to, the appellant would end up in a police pursuit again. He stated that the safety of the public was a concern, noting that the very lengthy period of disqualification was going to make life very difficult for the

appellant. However, he considered that this was the price the appellant had to pay;

the safety of the public had to come first.

Relevant Law

[12] Under s 35(2)(b) of the Land Transport Act 1998, where a person is convicted of reckless driving the court “must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more”. Section 52(4) provides that where a person is convicted of failing to stop, third or subsequent, the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year. Section 52(5) provides that a disqualification ordered under sub-section (4) is cumulative on and not concurrent with any other disqualification that a court may order in respect of the incident that gave rise to the conviction.

[13] Section 80 of the Land Transport Act compliments these two sections, providing an additional general power to disqualify a person from driving for such period as the court thinks fit if satisfied that the offence relates to road safety.

Submissions

Appellant’s submissions

[14] The appellant submits that the period of disqualification imposed is manifestly excessive as demonstrated by numerous decisions of both this Court and the Court of Appeal. The appellant argues that in other cases where the offender received a lengthy period of disqualification other aggravating factors were present in the offending such as driving under the influence of alcohol of drugs or driving without a licence. Further, the offending usually involves a more serious charge including causing death or injury.

[15] Whilst the appellant accepts that he has a bad driving history, he submits that none of these factors were present in the offending. Additionally, the maximum sentence for the driving offending for which the appellant was convicted is three months’ imprisonment, indicating that the penalty should be relatively low. This is

also relevant to the practical effect of the disqualification: once the appellant has served his prison sentence there will be more than 10 years’ disqualification left. In this regard the appellant referred to s 94 of the Land Transport Act as evidencing recognition by Parliament that long periods of disqualification could be counter- productive and simply lead to further offending.

[16] The appellant relies on three Court of Appeal decisions:

(a) R v Grey: the appellant was sentenced to eight years six months’ imprisonment for manslaughter and disqualified from driving for 12 years. The Court substituted a period of eight years disqualification noting that an excessively long period of disqualification was not productive.¹

(b) Hitchens v R: the appellant was sentenced to three years’ six months’ imprisonment and disqualified for 10 years on one charge of excess breath alcohol causing death and two charges of causing injury. On appeal, the Court of Appeal reduced the disqualification to seven years. The appellant had consumed cannabis, was speeding, intoxicated and driving in breach of his learners licence. There were three passengers in the car, including one who had not been drinking and had been nominated the sober driver. The appellant had a lengthy list of previous driving offences: ten previous convictions for driving while disqualified, a conviction for dangerous driving, reckless driving, two convictions for driving with excess breath alcohol and

four convictions for careless driving.²

(c) Tai v R: the appellant was convicted of excess breath alcohol causing death and sentenced to two years’ nine months imprisonment and disqualified for 10 years. The appellant was drunk, driving in breach of her restricted licence, the car had no warrant of fitness, and the

_{headlights were not on. She had no previous drink-driving}

¹ _{R v Grey (1992) 8 CRNZ 523 (CA).}

² Hitchens v R CA380/03, 25 March 2004.

convictions. The disqualification was reduced to five years by the Court of Appeal, with the Crown accepting that it was manifestly excessive.³

[17] The appellant also sets out numerous High Court decisions where periods of

10 years’ or more disqualification were reduced on appeal. The appellant notes that six High Court decisions were identified where periods of 10 years’ disqualification were imposed. The appellant cites three of these cases where a person was killed and the offender had been drinking.⁴ In one other case a 77 year old driver was disqualified for 15 years for careless driving causing injury. The appellant notes that the penalty imposed in that case was otherwise lenient.⁵

[18] Finally, the appellant attaches a table of 14 cases from the last 15 years where a lengthy period of disqualification was imposed. All of these cases, bar one, involved manslaughter or dangerous/drink driving causing death. The periods of disqualification imposed range from three years to seven years.

Respondent’s Submissions

[19] The respondent accepts that the period of disqualification imposed was excessive and suggests that a period in the vicinity of six to eight years would be appropriate.

[20] The respondent acknowledges that long periods of disqualification are not productive, as they leave little hope for offenders.⁶ It submits, however, that the court must keep dangerous drivers off the road for as long as reasonably possible in appropriate cases.⁷ Disqualification is primarily to protect the public and the period imposed should reflect that purpose, as well as the seriousness of the offending

_itself.⁸

³ _{Tai v R [2010] NZCA 552.}

⁴ R v Tu HC Gisborne S3/2001, 21 February 2001; R v Hawthorn HC Wellington CRI 2003-035-

3840, 28 May 2004; and Cashman v Police HC Christchurch CRI-2006-409-121, 15 September

_2006.

⁵ _{Northcott v Police HC Hamilton AP131/92, 14 December 1992.}

⁶ _{R v Grey, above n 1, at 527; and Hitchens v R, above n 2, at [10].}

⁷ _{Hitchens v R, above n 2, at [10].}

⁸ Tai v R, above n 3, at [6] and [7].

[21] Furthermore, although any injury caused will be relevant, actual injury or death is not necessary for a lengthy period to be imposed.⁹

[22] The respondent also points to several decisions not included in the appellant’s

submissions. Those decisions are:

(a) R v Pairama: the offender was sentenced for a number of charges including manslaughter. He had 35 previous convictions including reckless driving. He was sentenced to eight years’ imprisonment and disqualified for 10 years, starting from when he was released from prison.¹⁰

(b) R v Kumar: the offender was charged with two charges of manslaughter and two charges of causing bodily injury whole driving with excess blood alcohol. He had 13 previous traffic offences. He was sentenced to five years’ six months’ imprisonment and disqualified from driving for five years, starting from when he was released from prison.¹¹

(c) R v Herewini: the offender was sentenced for a number of charges including manslaughter. He had eleven previous driving related convictions. He was sentenced to seven and a half years’ imprisonment with a minimum period of imprisonment of three years’ nine months’. He was disqualified from driving for four years, starting from when he was released from prison.¹²

[23] The respondent submits that the most similar case to the present is Smith v Police, where the appellant was sentenced on one charge of dangerous driving to community work and disqualified from driving for five years. The appellant had been involved in a prolonged police pursuit, had driven erratically and at high speed.

_{He had a lengthy history of driving convictions, including five for dangerous}

⁹ _{King v Police HC Whangarei CRI 2006-488-023, 2 October 2006 at [45].}

¹⁰ _{R v Pairama HC Wanganui CRI-2009-083-2345, 31 May 2010.}

¹¹ _{R v Kumar HC Gisborne CRI-2009-016-3998, 28 April 2010.}

¹² R v Herewini HC Hamilton CRI 2007-019-10174, 14 May 2009.

driving. Miller J dismissed the appeal noting that the driving was extremely serious and that the speed, duration, attempts to avoid or escape the police and fact that it occurred during a police chase were serious aggravating factors. Miller J also noted that the offending had taken place on busy roads and it was only good luck that nobody was killed or injured.¹³

[24] The respondent then turns to the factors of the current offending, noting that the appellant’s first driving related conviction is from 1980, for dangerous driving. In total the appellant has 33 driving-related convictions including five dangerous driving convictions, a careless driving conviction, a reckless driving conviction, eight alcohol related driving convictions and 17 convictions for driving while disqualified or while licence suspended or revoked. The respondent states that this history shows an absolute disregard for the laws of the road, leaving no doubt that he represents a danger to other road users.

[25] While the respondent accepts that the sentence of disqualification imposed was manifestly excessive, the respondent does not agree that the offending is significantly less serious than cases where terms in the region of four to six years disqualification have been imposed, as the appellant submits. The respondent accordingly submits that disqualification for a period of at least six years was justified.

Analysis

[26] The appeal is brought under s 250 of the Criminal Procedure Act 2011. Accordingly, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed.¹⁴ This section was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.¹⁵ Accordingly, the appellant must demonstrate some error on

_{the part of the sentencing court, in that the sentence is manifestly excessive or wrong}

¹³ _{Smith v Police HC Auckland CRI-2003-404-225, 17 February 2004.}

¹⁴ _{Criminal Procedure Act 2011, s 250(2).}

¹⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].

in principle.¹⁶ Although this section makes no reference to the concept of manifestly excessive, this concept is well-engrained and continues to be used in sentencing appeals.¹⁷

[27] As the respondent has submitted, the primary purpose of disqualification is to protect the public, while reflecting the seriousness of the offending.¹⁸ The court must strike a balance between two competing principles: first that long periods of disqualification typically leave little hope for offenders and may therefore be counterproductive as they may increase the risk that the offender may simply chose to drive; and secondly that the Court must keep the offender of the road for as long as reasonably possible.¹⁹ The appropriate balancing of these principles depends upon the circumstances of the particular case.²⁰

[28] Both parties agree that the Judge was in error in imposing disqualification of

10 years, as, by reference to comparable cases, this was manifestly excessive. I

agree. I am grateful to the respondent for making this responsible concession.

[29] I also agree that the offending in this case is similar to that in Smith v Police where five years’ disqualification was imposed. As in Smith the relevant factors of the offending in this case are the police pursuit, speed, duration of the reckless driving, and that the appellant was attempting to avoid or escape the police. Also as in Smith, the offending occurred on busy roads. The District Court Judge clearly formed the view that the appellant was incredibly fortunate not to have killed or injured anybody. Further, as Miller J said in Smith, the appellant’s previous driving

related offences are relevant as they show a propensity to reoffend.²¹ This clearly

affects the appropriate length of disqualification necessary to protect the public. In Smith Miller J referred to five previous convictions for dangerous driving, a long list of convictions relating to vehicles and several convictions for driving while disqualified. The appellant’s previous driving record in this case appears to be even

_{worse, and the offences have been committed consistently over a 35 year period,}

¹⁶ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138].}

¹⁷ _{Tutakangahau v R, above n 17, at [35].}

¹⁸ _{Tai v R, above n 3, at [6] and [7].}

¹⁹ _{Hitchens v R, above n 2, at [10].}

²⁰ _{Leaupepe v Police [2015] NZHC 1766 at [10].}

²¹ Smith v Police, above n 13, at [12].

although the last offending occurred in 2011. Finally, the appellant in this case faced the additional charge of failing to stop, third and subsequent.

[30] While some of the common aggravating factors in similar cases, such as the use of alcohol or drugs and death or injury being caused, are not present in this case, the offending was very serious and clearly involved multiple aggravating factors. I consider it to be no more than a matter of luck that no-one was injured by the appellant’s driving.

[31] On the other hand, I consider that the offending in this case is less serious than Hitchens v R, a decision which has consistently been cited in appeals against disqualification from driving, where a seven year period of disqualification was adopted. The appellant in that case faced charges of driving with excess blood alcohol causing death and injuring. He had driven with three passengers in the car, including a sober driver, was drunk and had used cannabis.²² That offender also had a number of serious driving-related offences, although not as many as the appellant in this case.

[32] I note the appellant’s submission regarding the policy behind s 94 of the Act and how by analogy it can be applied here. However I consider that Parliament intended the approach provided for in s 94 to be followed when an offender had done no more than committed a further offence of driving whilst disqualified. Here the appellant was legally qualified to drive. The long period of disqualification he faces is due to the gravity of his conduct whilst in control of a motor vehicle. I consider that any period of disqualification that I impose must align with how other Courts have approached analogous circumstances. It follows that whilst I consider the period of disqualification imposed in the District Court was too long and has led to a manifestly excessive sentence, I cannot impose the minimum period of disqualification for which the appellant contended. For the offence of reckless driving I consider a disqualification of five years is appropriate. For the offence of

failing to stop I am required to impose a cumulative disqualification of 12 months.²³

_{It follows that the total period of disqualification is one of six years.}

²² _{Hitchens v R, above n 2. See the description above at [15].}

²³ See s 52(4)(b) 52(5) of the Land Transport Act 1998.

Result

[33] The appeal is allowed. The total disqualification of 11 years is set aside. In its place I impose the following disqualifications:

- on the charge of reckless driving – five years’ disqualification;

- on the charge of failing to stop for red and blue flashing lights, third or subsequent – one years’ disqualification cumulative on the five years’ disqualification.

All disqualification to take effect from the date the appellant is released from prison.