Harris v Police [2024] NZHC 2321 (19 August 2024)

Last Updated: 3 September 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000332 [2024] NZHC 2321

BETWEEN	HAKI HARRIS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 July 2024
Appearances:	N Reive for Appellant N C Vaughan for Respondent
Judgment:	19 August 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andre on 19 August 2024 at 2.00 pm

pursuant to r 11.5 of the High Court Rules 2016.

Registrar / Deputy Registrar Date .................................

HARRIS v NZ POLICE [2024] NZHC 2321 [19 August 2024]

Introduction

• [1] This is an appeal against conviction and sentence and in respect of two charges of failing to stop for flashing red/blue lights (third or subsequent).¹

• [2] In the District Court, Mr Harris pleaded guilty to the two charges and other related traffic offending. In relation to the failing to stop charges, the appellant was disqualified from driving for 24 months, with a further cumulative six-month disqualification for the dangerous driving conviction.

• [3] The appellant appeals both the conviction and sentence imposed on the two charges of failing to stop for red/blue flashing lights on the basis that:

(a) They were not the appellant’s third or subsequent offences against s 52A of the Land Transport Act 1998 (the Act) and the facts of the offending should have resulted in this being charged as his first and second offences instead;

(b) Should the appeal against conviction be upheld, it is open to the Court to substitute the conviction with the correct charges, namely a first and second offence against s 52A of the Act; and

(c) The appellant should be re-sentenced so that the mandatory disqualification from driving on these charges are six months for the first offence, and between one to two years for the second offence.

• [4] The respondent concedes that the appeal ought to be allowed. However, it says that the appellant’s first failure to stop offence was charged correctly, and not as a third and subsequent offence.

• [5] The appeal has been filed out of time and leave to appeal is required. The respondent does not oppose leave being granted. It accepts there is an error that

¹ Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2): maximum penalty, fine of

$10,000.

requires correction and that the outcome of the appeal has significance in redressing the original sentence imposed.²

Factual background

• [6] There are two sets of offending.

22–29 April 2021: First set of offending

• [7] This encompasses three charges: unlawfully taking a motor vehicle,³ failing to stop when followed by red/blue flashing lights and unlawfully being in an enclosed area.⁴

• [8] Between 22 and 29 April 2021, a silver Mazda motor vehicle was stolen from Dannemora.

• [9] On 29 April 2021, at approximately 10 am, the appellant was driving the vehicle. He was picked up by his co-offender, Tupo Sauileoge.

• [10] At approximately 3 pm that day, the appellant and Mr Sauileoge went to a residential address and attempted to gain entry by forcing open a bedroom window, using a screwdriver, garden shears and a wooden stick. They unlocked a latch on the window. The occupant had arrived home, and the two left the property. They left in the stolen Mazda.

• [11] At 3.30 pm, both Mr Sauileoge and the appellant were in the stolen Mazda. The appellant was driving. The Police signalled the vehicle to stop using red/blue flashing lights.

• [12] The appellant failed to stop and was tracked by the Police Eagle helicopter. Attempts to stop the vehicle using road spikes were unsuccessful. The appellant finally stopped in Papatoetoe and both the appellant and Mr Sauileoge were arrested.

² Pearse v Police [2023] NZHC 2023 at [8]–[9].

³ Crimes Act 1961, s 226(1): maximum penalty seven years’ imprisonment.

⁴ Summary Offences Act 1981, s 29(1)(b): maximum penalty three months’ imprisonment.

11 September 2021: Second set of offending

• [13] This comprises two charges: failing to stop when followed by red/flashing lights (third or subsequent) and driving in a dangerous manner.⁵

• [14] On 11 September 2021, at approximately 9.32 pm, the appellant drove along State Highway 1 at a speed of 135 km per hour. The Police signalled the vehicle to stop by driving directly behind it with red/blue flashing lights and sirens. The appellant failed to stop and accelerated at speeds in excess of 150 km per hour. The Police abandoned pursuit within 500 metres. The appellant continued at high speed, then took an off-ramp. He lost control of the vehicle and it crashed into the metal barrier. The appellant ran from the vehicle and was detained by members of the public.

Relevant legal principles

Appeal out of time

• [15] A first appeal court may extend the time allowed for filing a notice of appeal,⁶ and the “touchstone” is the interests of justice.⁷

Appeal against conviction

• [16] Under s 232(2)(c) of the Criminal Procedure Act 2011 (CPA), the Court must allow the appeal if satisfied that a miscarriage of justice has occurred for any reason.

• [17] Under s 234(4) of the CPA, if the Court is satisfied that facts admitted by the convicted person in relation to their charge support a conviction for a different offence (alternate offence), the Court may, if the convicted person agrees, direct that a judgment of conviction for the alternate offence be entered. On making that direction, the Court may impose a sentence for the alternate offence.

5. Land Transport Act, s 35(1)(b)(v): maximum penalty three months’ imprisonment. Mandatory disqualification six months.

⁶ Criminal Procedure Act 2011, s 231(3).

⁷ R v Knight [1998] 1 NZLR 583 (CA) at 587; R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [95]–[99].

Appeal against sentence

• [18] The Court must allow an appeal against sentence if satisfied that:⁸

(a) for any reason, there is an error in the sentence imposed; and

(b) a different sentence should be imposed.

• [19] The overall question on appeal is whether the sentence was manifestly excessive or the sentence was wrong in principle.⁹ The Court will not ordinarily intervene with a sentence that is within range; the focus is on the end sentence rather than the process by which the sentence was reached.¹⁰

Analysis and decision

• [20] The appellant was charged with offences under s 52A(1)(a)(ii) of the Land Transport Act, which provides that a person commits an offence if they are the driver of a vehicle that fails to stop when required to do so under s 114(2). Section 114(2) of the Act provides that:

An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.

• [21] Section 52A of the Act was inserted by the Land Transport Amendment Act 2017.¹¹ Section 52A prescribes higher penalties if a person is convicted of two or more offences against s 52A(1).

• [22] Section 52A(3) prescribes the penalty for people convicted of a first offence against s 52A(1). For a first offence, the defendant is disqualified from driving for six months if the offence was committed while the defendant exceeded the applicable speed limit or operated the vehicle in an otherwise dangerous manner.

⁸ Criminal Procedure Act, s 250(2).

⁹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

¹⁰ Tutakangahau v R, above n 9, at [36].

11. The predecessor was s 52(4) of the same Act, which was drafted in the same terms. However, it carried a lower mandatory disqualification.

• [23] Section 52A(4) prescribes the penalty for people convicted of a second offence against s 52A(1), requiring them to be disqualified for at least one year, but not more than two years.

• [24] Section 52A(5) prescribes the penalty for people convicted for a third or subsequent offence against s 52A(1), and in particular requires the defendant to be disqualified from driving for two years.

• [25] The penalties and disqualification periods for breaching s 52A(1) is summarised in the table below.

	Maximum penalty	Disqualification
First offence	Fine of $10,000	Mandatory disqualification of 6 months if the offending was committed while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner.
Second offence	Fine of $10,000	Mandatory disqualification of 1 year (but not more than 2 years).
Third or subsequent offence	3 months’ imprisonment or fine of $10,000	Mandatory disqualification of 2 years.

• [26] This appeal turns on the question of whether convictions for failing to stop, entered prior to the introduction of s 52A, count as a “conviction against subsection (1)”, and therefore justify the penalty in s 52A(5) being imposed. Recent High Court decisions have found in favour of a strict reading of s 52A, holding the convictions before the introduction of that section are not convictions against s 52A(1). This includes Martin v Police,¹² where Palmer J held that the appellant should not have been charged under s 52A(5). His Honour held that the statutory wording of s 52A

¹² Martin v Police [2021] NZHC 1356.

did not include a carry-over provision. Subsequent decisions of this Court have endorsed that interpretation.¹³

• [27] There are divergent approaches in this Court on the issue of how to address the incorrect charge and sentence. I note, however, that all of the cases agree that the harsher disqualification period cannot apply if it relies on convictions prior to the introduction of s 52A.

• [28] There are two approaches:

(a) Cases where the conviction has been undisturbed but the sentence adjusted; and

(b) Cases where the conviction has been quashed (and often substituted).

• [29] The parties in this case agree that either approach is available to the Court.

• [30] In Pearse v Police,¹⁴ Grice J acknowledged the different approaches taken, on the one hand, in Tungalahi and Rangi v Police (amongst others),¹⁵ and on the other, Martin and O’Rourke.¹⁶ In Pearse, her Honour found that the appellant did not fully appreciate the nature of the charge at the time of entering his guilty plea, and a more favourable verdict might have been delivered had there not been an error. She therefore quashed Mr Pearse’s convictions. Pursuant to s 234(2) of the CPA, a new conviction was then entered under s 52A(1)(a)(ii) and 52A(3) and an amended sentence of six months’ disqualification was imposed.¹⁷
• [31] I find that I should adopt the same approach in this case.

• [32] I find that here, there has been a miscarriage of justice. I accordingly quash the conviction in relation to the second charge of failing to stop (third or subsequent) committed on 11 September 2021.

¹³ Hallmond v R [2021] NZHC 2369; Tungalahi v Police [2022] NZHC 1409; Ryder-Ware v Police

[2022] NZHC 3172; Pearse v Police, above n 2.

¹⁴ Pearse v Police, above n 2.

¹⁵ Tungalahi v Police, above n 13; Rangi v Police [2024] NZHC 1460.

¹⁶ Martin v Police, above n 12; O’Rourke v Police [2023] NZHC 1805.

¹⁷ See also Daly v Police [2024] NZHC 932.

• [33] The Court then has a broad discretion as to next steps. In this case, I consider the appropriate outcome is to direct, under s 234(2) of the CPA, that a judgment of conviction be entered for a different offence, namely a charge under s 52A(1)(a)(ii) and 52A(3). In the circumstances of this case, I am satisfied that the appellant could have been found guilty of a different offence and the trial Judge must have been satisfied of those facts as well.

• [34] I turn to address the question of sentence.

• [35] I note first that the appellant was correctly charged for his failure to stop in the first set of offending. Accordingly, s 52A(3) is the appropriate provision to determine if disqualification is required.

• [36] The summary of facts does not suggest that the appellant exceeded the applicable speed limit or operated a motor vehicle in an otherwise dangerous manner. I agree with the submission of the respondent that no mandatory period of disqualification is required to reflect this charge. Accordingly, no amendment to the sentence is necessary.

• [37] I have already concluded that the charge from the second set of offending should also be treated as a first offence against s 52A(1). Accordingly, s 52A(3) applies. Because the appellant was convicted of driving in a dangerous manner at the same time as failing to stop for the flashing red/blue lights, the mandatory disqualification of six months under s 52A(3) applies. That disqualification is cumulative on any disqualification for a failing to stop charge.¹⁸
• [38] In the circumstances I make the following orders:

(a) Substituting the sentence on the two charges of failing to stop to one of six months’ disqualification; and

(b) Varying the start date of the appellant’s sentence for a charge of driving in a dangerous manner of six months’ disqualification (cumulative).

• [39] This results in a total disqualification period of 12 months.

¹⁸ Land Transport Act, s 52A(6).

Result

• [40] I grant the appeal against conviction in respect of the second charge of failing to stop, committed on 11 September 2021. In substitution for that conviction, the appellant is convicted under s 52A(1) of the Act.

• [41] The sentences on the two charges of failing to stop are substituted by a six-month disqualification period. I also vary the start date of the appellant’s sentence of six months’ disqualification for the charge of driving in a dangerous manner.

Andrew J