Haua v Police [2023] NZHC 3523 (5 December 2023)

Last Updated: 26 March 2024

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2023-416-000015 [2023] NZHC 3523

BETWEEN	HINEMOA HAUA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 November 2023
Appearances:	B J Munro for Appellant A V Bryant for Respondent
Judgment:	5 December 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 5 December 2023 at 4.21 pm

Registrar/Deputy Registrar

HAUA v POLICE [2023] NZHC 3523 [5 December 2023]

• [1] At around 5 pm on 18 June 2023, Hinemoa Haua had a near miss with another vehicle as she drove her Suzuki Swift at speed out of the Gisborne Pak n Save, proceeding dangerously to overtake other vehicles in a 50 kilometres per hour zone. Police signalled by means of siren and flashing blue and red lights for her to stop, but she did not. She was arrested a short time later, and charged. She was found to be a disqualified driver, and at least twice previously convicted of driving while disqualified or with a suspended or revoked driver licence.

• [2] Ms Haua was sentenced in the Gisborne District Court on 5 October 2023, on charges of driving while disqualified (third or subsequent),¹ dangerous driving² and failing to stop.³ Her convictions on those charges would have carried regular sentencing responses together with mandatory further periods of disqualification from driving, but during her sentencing she applied for orders under s 94 of the Land Transport Act 1998 substituting an alternative community-based sentence for each disqualification.

• [3] The sentencing Judge granted Ms Haua’s s 94 application, and imposed cumulative sentences of community work, with a total duration of 260 hours.

• [4] Ms Haua now appeals against that combination of sentences.

• [5] I must allow Ms Haua’s appeal if satisfied that there is an error in the sentences and a different sentence should be imposed. Otherwise, I must dismiss the appeal.⁴ In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached. ⁵

1. Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty: two years’ imprisonment and mandatory disqualification from holding or obtaining a driver licence for one year or more.
2. Section 35(1)(b). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500 and mandatory disqualification from holding or obtaining a driver licence for 6 months or more.

³ Sections 52A(1)(a)(ii), 52A(4), 56A(6) & 114(2). Maximum penalty: a fine not exceeding

$10,000 and mandatory disqualification from holding or obtaining a driver licence for one year.

⁴ Criminal Procedure Act 2011, s 250.

⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].

What individual sentences were imposed?

• [6] The sentencing Judge’s remarks were not transcribed. Handwritten notes attached to each charging document show that sentences of community work were imposed as follows:

(a) 50 hours by way of ordinary sentencing, plus 50 cumulative hours in lieu of 12 months’ disqualification, for driving while disqualified (third or subsequent);

(b) 40 hours by way of ordinary sentencing, plus 40 cumulative hours in lieu of six months’ disqualification for dangerous driving, imposed cumulatively upon the sentence in [6(a)]; and

(c) 80 hours in lieu of 12 months’ disqualification for failing to stop, imposed cumulatively upon the sentences in [6(a) and (b)].

Ms Haua’s position

• [7] For Ms Haua, Ms Munro submitted that the overall outcome involved a manifestly excessive sentence. She drew attention to the authorities discussed below. She said that Ms Haua was experiencing difficult personal circumstances at the time of her offending. And she noted that Ms Haua had taken steps to address its root cause by completing the eight-week residential methamphetamine rehabilitation programme, Te Huarahi Pai.

• [8] Ms Munro submitted that an end sentence in the vicinity of 180 hours’ community work would be appropriate.

• [9] In her written submissions, Ms Munro had promoted another ground of appeal: that the sentencing Judge had imposed an ordinary sentence of 40 hours’ community work plus 40 hours in lieu of disqualification on the failing to stop charge. As that charge was punishable by a fine only, together with 12 months’ disqualification under s 52A(4) of the Land Transport Act, the sentence was necessarily excessive, to the tune of 40 hours. However, during the appeal hearing, Ms Munro accepted that the notes

of Ms Haua’s counsel taken during the sentencing are not supported by the District Court’s record showing the full 80 hours to have been imposed in lieu of disqualification. Ms Munro therefore confined Ms Haua’s case to the submission of excessiveness outlined above.

Police position

• [10] For the police, Ms Mitchell submitted that the overall sentence was well within range, comparing well to the authorities, such as Whyman v Police,⁶ and the statutory maximum combined total of 400 hours of community work that might be imposed whether concurrently or cumulatively on a single occasion.⁷ She noted that here the offending came to the attention of police because of Ms Haua’s seriously poor driving, rather than in the course of a routine stop. And it was undertaken against a backdrop of a poor driving history.

• [11] On my request, Ms Mitchell enquired with the Gisborne Community Corrections office and was advised that up to 40 hours’ community work in Ruatōria would be available to Ms Haua should she seek to complete her sentence under that office’s direct oversight.

Discussion

Authorities

• [12] The authorities, summarised as follows, indicate little more than that the number of hours appropriately added under s 94, in lieu of disqualification to sentences otherwise imposed for driving offences, varies widely, and that a total sentence well in excess of 200 hours (including hours in lieu) has some prospect of being seen as excessive:

(a) In Mahuika v Police, Fogarty J added on appeal to a sentence of 12 months’ supervision, imposed in respect of driving with excess blood alcohol (third or subsequent) and dangerous driving, by substituting

⁶ Whyman v Police [2014] NZHC 2889.

⁷ Sentencing Act 2002, s 57.

150 hours’ community work in lieu of 12 months’ disqualification.⁸ The appellant’s bad history of drink driving derived from events more than 23 years before, and the offending occurred during a time of considerable personal turmoil and tragedy.

(b) In Whyman v Police, Lang J added on appeal to an 80-hour sentence of community work for driving while suspended by substituting an additional 120 hours’ community work in lieu of 12 months’ disqualification, where the appellant had a significant history of speeding offences.⁹

(c) In Laracy v Police, Williams J found a total sentence of 350 hours’ community work, imposed for driving while disqualified on the basis of 150 hours for the offending plus 200 hours in lieu of 12 months’ disqualification, to be manifestly excessive, “however it [was] constructed”.¹⁰ His Honour imposed a single sentence of 150 hours’ community work.

(d) In Poona v Police, Davison J added on appeal to a 100-hour sentence of community work for four offences of driving while disqualified by substituting an additional 100 hours’ community work in lieu of eight months’ disqualification.¹¹ The appellant was 18 years of age, and there was no suggestion of him having driven dangerously.

(e) In Bartram v Police, Cooke J reviewed the cases where s 94 had been applied, and observed a general practice of adding 20 to 40 hours’ community work in lieu of a six-month disqualification.¹²

(f) In Laird v Police, Churchman J added on appeal to a 120-hour sentence of community work for driving while suspended by substituting an

⁸ Mahuika v Police HC Christchurch CRI-2009-409-104, 23 September 2009.

⁹ Whyman v Police, above n Error! Bookmark not defined..

¹⁰ Laracy v Police [2016] NZHC 2615 at [19].

¹¹ Poona v Police [2018] NZHC 791.

¹² Bartram v Police [2019] NZHC 90 at [17].

additional 70 hours’ community work in lieu of seven months’ disqualification.¹³

Ms Haua’s circumstances

• [13] As noted, Ms Haua was sentenced on 5 October 2023. The sentencing Judge in this case was assisted by a Provision of Advice to Courts (PAC) report provided by the Department of Corrections for Ms Haua’s sentencing.

• [14] The PAC report noted that, as at 4 August 2023, she was due on 25 October 2023 to complete her previous sentence, imposed on 26 April 2023 for offending including driving offences. However, Ms Haua was said to be engaging well with the Community Work Supervisor, having shown a real commitment to completing her sentence. Ms Haua was said to have reported the need to be busy, and to enjoy giving back to the community.

• [15] The PAC report described Ms Haua’s methamphetamine use, in particular at the time of her offending for sentence, as well as the breakdown of her relationship, as contributing factors to her offending. But it also noted that this use had decreased following the separation, even before her self-enrolment with Te Huarahi Pai.

Conclusion

• [16] In the circumstances of this case, I do not consider the sentencing Judge erred such that a different sentence should be imposed. The overall sentence of 260 hours’ community work was stern. However, the driving offences in respect of which it was imposed exhibited dangerous decision-making, against a background of a poor history of non-complaint driving.

• [17] Further, the sentence of community work was recommended by the PAC report writer in case-specific terms suggesting its suitability for Ms Haua’s own circumstances.

¹³ Laird v Police [2021] NZHC 2005

• [18] While another combination, of both community work and supervision, might have been preferred by another sentencing Judge, I do not take the view that the sentence imposed on this occasion should have been different.

Result

• [19] Ms Haua’s appeal is dismissed.

Johnstone J