TONGALAHI v POLICE [2022] NZHC 1409

TONGALAHI v POLICE [2022] NZHC 1409 [15 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-124[2022] NZHC 1409BETWEEN GRAHAM BEN TONGALAHIAppellantAND NEW ZEALAND POLICERespondentHearing: 7 June 2022Appearances: A J Beach for AppellantG E Young for RespondentJudgment: 15 June 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 15 June 2022 at 3:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Mr Tongalahi (the appellant) appeals out of time against both his convictionand his sentence of two years' disqualification from driving imposed after he pleadedguilty to a charge of failing to stop for red and blue flashing lights and sirens in breachof s 52A of the Land Transport Act 1998 (the Act).1 This mandatory disqualificationperiod was imposed pursuant to s 52A(5) of the Act on the basis that it wasMr Tongalahi's third offence of failing to stop.2[2] The basis of Mr Tongalahi's appeal is that although he admits that he hasprevious convictions for failing to stop, they related to offending committed before theintroduction of s 52A3 and at the time of his index offending, he had not previouslybreached s 52A of the Act. He therefore argues that he should not have received thegreater penalty applicable for a third or subsequent offence against s 52A, as his indexoffending was his first breach of the provision.[3] The respondent does not oppose the appeal against sentence for reasons whichwill be explained below.The offending[4] On 12 July 2019 the appellant was stopped by Police while driving a motorvehicle on Mt Albert Road, Auckland. He provided the Police with false detailsregarding his name. When questioned further about this he drove away from Policeat speed and a pursuit was initiated. The appellant failed to stop at a stop sign anddrove through a 50 kilometres per hour zone at approximately 80 kilometres per hour.The traffic at the time was described as "medium" and the road was wet.[5] As the appellant approached a roundabout, he lost control of his vehicle andcollided with another vehicle. He did not stop to check whether the occupants of theother vehicle had been injured, and drove away onto the motorway weaving in and out1 New Zealand Police v Tongalahi [2019] NZDC 19997.2 Land Transport Act 1993, s 52A(5)(b).3 Section 52A of the Act was inserted on 11 August 2017 by s 41 of the Land Transport AmendmentAct 2017.of traffic across all three lanes at speeds of up to around 140 kilometres per hour. Themotorway traffic was described as "medium" and the road conditions as being wet.[6] As the appellant went beneath an overpass he slammed on the brakes of the carcausing his vehicle to fishtail and almost losing complete control. He then made aU-turn and drove the wrong way up a motorway on-ramp and once off the motorwayhe stopped his vehicle at a nearby address and entered the property. He wassubsequently located by Police hiding in the roof cavity of the property.[7] A small amount of methamphetamine and methamphetamine utensils werelocated in the vehicle he was driving.The law[8] Section 232(2)(c) of the Criminal Procedure Act 2011(CPA), provides that anappeal against conviction must be allowed if the court is satisfied that a miscarriageof justice has occurred for any reason. Section 232(4) defines a "miscarriage ofjustice" as any error, irregularity, or occurrence that has created a real risk that theoutcome of the trial was affected or has resulted in an unfair trial or a trial that was anullity. Although "trial" is defined by s 232(5) as including a proceeding in which theappellant pleaded guilty, the grounds for appealing a conviction following a guilty pleamust be exceptional.4 A conviction cannot be impugned where the appellant fullyappreciated the merits of the position and made an informed decision to plead guilty.[9] As regards the appeal against sentence, s 250(2) provides that the court mustallow the appeal if satisfied that for any reason there is an error in the sentence imposedon conviction and that a different sentence should be imposed. In any other case, thecourt must dismiss the appeal.54 R v Le Page [2005] 2 NZLR 845 (CA) at [16] endorsed by the Supreme Court in Wilson v R [2015]NZSC 189, [2016] 1 NZLR 705 at [96] and [97].5 Criminal Procedure Act 2011, s 250(3).Discussion[10] The appeal was filed out of time and therefore the appellant requires leave tobring his appeal. However as I earlier noted the respondent accepts there was an errorin the sentence of two years' disqualification from driving imposed by the DistrictCourt, and I accordingly grant him leave to appeal.Appeal against conviction[11] The appellant was charged with an offence under s 52A(1)(a)(ii) of the Act.[12] Section 52A(1) provides that a person commits an offence if the person:(a) is the driver of a vehicle that fails to stop—(i) as soon as practicable when signalled or requested to stopunder section 114(1); or(ii) when required to stop under section 114(2); or(b) is the driver of a vehicle that is stopped and fails to remain stopped inaccordance with section 114(2A) or (3)(a); or(c) fails or refuses to provide information or provides false or misleadinginformation in response to a demand for information made by anenforcement officer under section 114(3)(b).[13] Section 114(2) of the Act provides:An enforcement officer in a vehicle following another vehicle may, bydisplaying flashing blue, or blue and red, lights or sounding a siren, requirethe driver of the other vehicle to stop.[14] The appellant was charged and convicted of the correct offence.Section 52A(1) creates inter alia an offence of failing to stop. While s 52A alsoprovides for escalating penalties where a person is convicted of two or more offencesagainst subsection (1),6 it does not create a separate offence for failing to stop on athird or subsequent occasion. In other words, a prior conviction is not an essentialingredient of the offence under s 52A(1). The appellant was correctly charged underthis provision.6 Section 52A(4)–(5).[15] Mr Young, for the respondent, accepts that the charging document contained"one inaccuracy and two errors":The inaccuracy was the reference to having been convicted of an offenceagainst s 114 on at least two previous occasions. While this statement wascorrect, they were not offences against s 52A(1). The first error was that itspecified a maximum penalty of three months' imprisonment and a fine of$10,000. The latter was the maximum penalty for a first or second offenceagainst s 52A so was correct. The other was to include reference to s 52A(5),the penalty for a third or subsequent offence.[16] However, he submits that these errors do not render the charge a nullity. Henotes that the requirements contained in ss 16 and 17 of the CPA were satisfied despitethe errors. In particular, the charging document contained reference to the provisioncreating the offence. The errors relate solely to the disclosure of penalties. While thatinformation is required to be disclosed under s 22(2) of the CPA, s 22(4) specificallyprovides that a charge "must not be dismissed solely on the grounds that it does notcomply with subsection (2)".[17] I accept Mr Young's submission. There is no evidence that the errors anddeficiencies in the charging document have affected the appellant's ability to considerthe case against him or to instruct his counsel.7 No miscarriage of justice has occurred.The appeal against conviction will accordingly be dismissed.Appeal against sentence[18] The parties are agreed that there was an error in the sentence of two years'disqualification from driving imposed by Judge Aitken. That sentence was imposedpursuant to s 52A(5) on the basis that the appellant had previous qualifyingconvictions for failing to stop.[19] Section 52A(5) provides:If a person is convicted for a third or subsequent offence againstsubsection (1),—(a) the maximum penalty is imprisonment for a term notexceeding 3 months; and7 Le Page, above n 4, at [16]–[17].(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 2 years.[20] The appellant's offending is the very kind of offending which led Parliamentto increase the penalty for repeated offending by the enactment of s 52A:8The third part of the bill implements increases to the penalties for drivers whofail to stop for police. When drivers attempt to flee, they endanger the safetyof other road users and the police, as well as their own safety and that of theirpassengers. All too frequently the actions of fleeing drivers result in crashesinvolving serious injury or death. Increasing the penalties for fleeing driverswill send a clear message that this behaviour is unacceptable and will not betolerated. The disqualification penalties for failing to stop will also scale up,based on whether it is the driver's first, second, third, or subsequent offenceof this kind.[21] However, this Court has recently held that for a previous conviction to qualifyfor the purpose of the increased penalty under s 52A(5), it must be an offencespecifically "against subsection (1)" of s 52A.9 Convictions for failing to stop underthe predecessor provision to s 52A will therefore, not count towards the increasingpenalties for subsequent offences provided for by s 52A.10 I shall also adopt thatapproach here.[22] However in doing so, it is appropriate to note the significant benefit theappellant derives from the absence of an explicit carry-over or deeming provision ins 52A such as found elsewhere in the Act. For example, s 32(5) (relating to drivingwhile disqualified) provides that for the purposes of s 32, a conviction for an offenceagainst a provision of the Transport (Vehicle and Driver Registration and Licensing)Act 1986 or the Transport Act 1962 corresponding to an offence specified insubsection (1) is to be treated as a conviction for an offence specified in thatsubsection. And similarly, s 56(5) (relating to driving with excess breath or blood-alcohol) provides that for the purposes of s 56 a conviction for an offence against aprovision of the Transport Act 1962 corresponding to an offence specified in8 The Hon Paul Goldsmith, then Minister for Tertiary Education, Skills and Employment on behalfof the Minister of Transport at the third reading of the Land Transport Amendment Bill (No 2) (3August 2017) 724 NZPD 19846. The Minister's comments mirror the explanatory note to the Bill,that it would increase the disqualification penalties for drivers who fail to stop based on the numberof their offences "of this kind".9 See Martin v New Zealand Police [2021] NZHC 1356; and Hallmond v R [2021] NZHC 2369.10 The predecessor provision to s 52A was s 52(4) of the same Act, which was drafted in substantiallythe same terms albeit with a shorter mandatory disqualification period of one year.subsection (4) is to be treated as a conviction for an offence specified in thatsubsection.[23] This absence of an explicit carry-over provision in s 52A leads to aninconsistent outcome whereby although Parliament enacted amended legislationintended to increase penalties for repeated offending of this kind because of the dangercaused to the public by drivers failing to stop,11 offenders such as the appellant despitehaving previously offended against a corresponding provision of the Act willnevertheless receive lower penalties than they would have received if the legislativeamendment had not occurred. This is illustrated by the appellant's case where, wereit not for the enactment of s 52A, he would have been sentenced to a mandatorydisqualification period of 12 months following his fifth conviction for failing to stop,12however notwithstanding the increased penalties provided by s 52A, as he has beenconvicted of his first offence against s 52A(1)(a)(ii), pursuant to s 52A(3) he isrequired to be sentenced as a first time offender in breach of s 52A to the shorter periodof six months' disqualification.[24] The appellant's index offending clearly endangered the public. Having failedto stop for Police he drove away at speed well in excess of the legal limit, collidedwith another vehicle and then sped away again without ascertaining whether theoccupants of that vehicle had been injured. He drove on the motorway at around140 kilometres per hour in wet road conditions, weaving in and out of traffic acrossall three lanes of the motorway, then having almost lost control of the vehicle for asecond time, drove the wrong way up a motorway on-ramp. It was fortuitous thatother road users were not seriously injured or killed as a result of his reckless anddangerous driving.[25] While s 52A was intended to increase the penalties for offenders responsiblefor repeated failures to stop, by limiting the scope of the increased penalties to thosepersons convicted of offending against s 52A(1), it effectively gives those offenders11 See (15 September 2016) 717 NZPD 13785 and 13794–13795; and (3 August 2017) 724 NZPD19846 and 19851.12 Under the now repealed s 52(4) of the Land Transport Act.previously convicted of "corresponding" offending committed prior to 2017 a cleanslate for the purposes of determining the duration of the disqualification to be imposed.[26] Nevertheless, having regard to the specific carry-over provisions contained inss 32(5) and s 56(5), and despite what appears to have been Parliament's intention toincrease the periods of disqualification for repeat offenders, I do not consider theabsence of a similar provision in s 52A can be explained as unarguably being the resultof a drafting error.13 Neither counsel argued that to be the case, and as I have notedthe respondent accepts there was an error in the Judge's sentencing with regard to thedisqualification imposed. For these reasons I shall proceed on the basis adopted inMartin v New Zealand Police and Hallmond v R.14[27] The appellant has previous convictions for failing to stop in 2016 and 2005.15While the nature of that offending was essentially indistinguishable, these convictionswere entered before the introduction of s 52A on 11 August 2017 by s 41 of the LandTransport Amendment Act 2017. The appellant therefore had not previously breacheds 52A at the time of the index offending on 12 July 2019. His offending on thatoccasion was the first time he has offended against s 52A(1).[28] Although the appellant committed two offences against s 52A(1) in the courseof his offending on 12 July 2019, namely by giving false information contrary tos 52A(1)(c) and failing to stop when required contrary to s 52A(1)(a)(ii), both counselagree that the appellant should be sentenced as a first time offender against s 52A(1).That is plainly the correct approach.16[29] Accordingly, I will sentence the appellant to a period of six months'disqualification from driving pursuant to s 52A(3). That disqualification period is tobe cumulative on the disqualification period of 12 months imposed by the Judge inrespect of the other driving charges.1713 See Hallmond, above n 9, at [16]; and Air New Zealand Ltd v McAlister [2009] NZSC 78, [2010]1 NZLR 153 at [95]–[97].14 See Martin, above n 9; and Hallmond, above n 9.15 See Tongalahi, above n 1, at [8]–[9].16 Mr Beach, for the appellant, submitted that the appellant should be convicted and discharged inlight of the fact that he was wrongly disqualified for two years, but I do not consider that wouldadequately reflect the severity of the appellant's offending.17 At [17]. See also the Land Transport Act, s 52A(6).Result[30] The application for leave to appeal out of time is granted.[31] The appeal against conviction is dismissed.[32] The appeal against sentence is allowed. I quash the sentence of two years'disqualification from driving and substitute in its place a sentence of six months'disqualification from driving to be served cumulatively with the 12 months'disqualification imposed by Judge Aitken with respect to the charges of recklessdriving and failing to stop and ascertain injury._____________Paul Davison J