CHAAYA v POLICE [2019] NZHC 3250

CHAAYA v POLICE [2019] NZHC 3250 [10 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-455[2019] NZHC 3250BETWEEN MICHAEL ABOU CHAAYAAppellantAND NEW ZEALAND POLICERespondentHearing: 10 December 2019Appearances: T M Cooper and ILM Archibald for the AppellantJ Herring for the RespondentJudgment: 10 December 2019ORAL JUDGMENT OF GAULT JSolicitors / Counsel:Ms T M Cooper and Ms ILM Archibald, Barristers, AucklandMr J Herring, Meredith Connell, Office of the Crown Solicitor, Auckland[1] Mr Chaaya pleaded guilty to six charges of dangerous driving causing injury.1[2] He was sentenced to 10 months' home detention, 250 hours of communitywork and to payment of $16,000 in emotional reparation. He was also disqualifiedfrom driving for two years.[3] Mr Chaaya appeals. His appeal is out of time but the respondent does notoppose leave in the circumstances.Facts of the offending and decision on appeal[4] The facts of the offending were summarised by Judge P J Sinclair atsentencing:2This is an event borne of nightmares. A nightmare for each and every victimand their families and a nightmare for you, Mr Chaaya, which I have no doubtcontinues to replay in your mind, accompanied by the wish that you could turnback the clock.On 20 September 2017 at 8.20 am you were driving a Nissan motor vehicleon the left lane along Taharoto Road. The road has a designated 50 kilometreper hour speed limit. You crossed the intersection of Taharoto Road andShakespeare Road and entered Wairau Road. You accelerated heavily,increasing your speed to at least 87 kilometres per hour, pulling into the rightlane, passing several cars, as you passed Westlake Girls High School. Whilestill driving at excess speeds you crossed the intersection by the entrance tothe school which is controlled by lights. You moved back to the left lane[after] passing several more vehicles which were slowing or had stopped,waiting to turn right into Forrest Hill Road. You then attempted to negotiatea moderate left bend at the Wairau Road, Forrest Hill Road intersection. Youlost control of the vehicle. Your car mounted the kerb and continued alongthe footpath for approximately 20 metres towards a bus stop.A schoolgirl walking along the footpath saw the car coming towards her andtried to run behind the bus shelter to get out of the way, but your car struck herin the back. Your car then hit a steel pole holding the bus stop sign andflattened it. Part of the pole flew into the bus shelter.Your car continued along the footpath and struck three victims, Lasi Nuku,(Zhan or) Peter Chen and Jessica Best. Lasi Nuku was thrown into anotherbystander, bounced off her and landed on the road in front of the bus shelter.Peter Chen was thrown into the air and also landed on the road. Jessica Bestwas carried for a short distance on the bonnet of your vehicle before she wasthrown off over a steel fence and down an embankment. Your car eventually1 Land Transport Act 1998, s 36(1)(b). Maximum penalty 5 years' imprisonment or a fine notexceeding $20,000 and a period of disqualification of 1 year or more.2 Police v Chaaya [2019] NZDC 2329 at [1]-[4].came to a stop partially on top of the grass of the embankment and partiallyacross the footpath. Three other victims, Shontel Leiataua, Agae Abbas andNabaa Abbas, were injured by the flying debris caused by the crash and thebroken pole. The six victims suffered varying injuries, which I will refer toshortly.[5] The Judge later summarised the injuries inflicted as:3 you injured six people; six school children aged between 13 and 15 years– three seriously, however fortunately not permanently. Lasi Nuku suffered abroken right femur, multiple breaks to her left leg, tendon damage to both legs,damage to her elbow requiring surgery and lacerations to her face. Sherequired a one month stay in Starship Hospital. Peter Chen suffered a brokenfemur which resulted in him being rehoused as his homestay did not havewheelchair access.Jessica Best sustained a broken left ankle, swelling and bruising to the leftknee, a chipped shoulder blade and bruising to her back and arms resulting inmobility issues for some time. Shontel Leiataua sustained nerve damage toher neck and back. Agae Abbas sustained cuts to her scalp, concussion andalso significant bruising and Nabaa Abbas suffered extensive bruising to bothankles and a hematoma to her left ankle.[6] Judge Sinclair considered a global starting point of two years' imprisonment tobe appropriate.[7] A psychiatric report and a pre-sentence report were before the Court.[8] Judge Sinclair noted that Mr Chaaya was now taking medication for anxietyand depression as a result of the offending. She noted his expressed feelings of guiltand shame, and that Mr Chaaya's presentation fulfilled the criteria for an adjustmentdisorder with predominant anxiety symptoms.[9] Mr Chaaya had been assessed as having a low risk of re-offending, although ahigh risk of harm, due to the serious nature of the offending.[10] Additionally, Mr Chaaya had participated in restorative justice. Judge Sinclairnoted the success of the restorative justice. She commented that there had beenproductive and valuable sessions for both the victims and for Mr Chaaya. Sheconsidered Mr Chaaya had expressed what she assessed as genuine remorse, and thathe had learned a very difficult lesson.3 Police v Chaaya, above n 2, at [22]-[23].[11] Judge Sinclair noted the personal references provided, which she consideredindicated that Mr Chaaya was a valuable and productive member of the community.[12] Finally, she noted that Mr Chaaya was entitled to a discount to reflect thegreater rehabilitative prospects and reduced culpability arising out of his youth.[13] A total discount of 25 per cent was given. Accordingly, the end sentence wasunder two years, and commuted to a period of 10 months' home detention. In addition,Mr Chaaya was sentenced to 250 hours community work and a payment of $16,000.[14] On the issue of disqualification, the Judge noted that one year was mandatory.The Police sought 18 months to two years. The Judge considered that adisqualification of two years was appropriate.Submissions[15] Ms Cooper, in her written submissions for Mr Chaaya, submits that theimposition of two years disqualification and of home detention was manifestlyexcessive. Both submissions are grounded in the suggestion that the District CourtJudge failed to take into account Mr Chaaya's restrictive terms of bail.[16] First, counsel draws attention to the time which Mr Chaaya spent on bail. Shesubmits that the District Court simply recited the competing interests in setting aperiod of disqualification and failed to consider the effect of a lengthy period ofdisqualification on a young man starting out his career.[17] Additionally, she notes that Mr Chaaya was first granted bail on 23 February2018, and that a bail condition restricting Mr Chaaya from driving was imposed onthat date. She submits that as a result, when he was sentenced on 11 February 2019,he had already spent almost a year effectively disqualified from driving. She submitsthat this was not recognised at sentencing, and Mr Chaaya should have been creditedaccordingly.[18] The submission in relation to home detention is similar. She draws attentionto the four weeks which Mr Chaaya spent on 24 hour curfew at a time when there wereproblems with his EM bail address. She submits that this should have been recognisedat sentencing.[19] Mr Herring, for the Crown, submits that the sentence imposed remainedappropriate despite the time spent on bail, and the prohibition on driving whilst onbail. He notes that the minimum possible period of disqualification was one year, andsubmits that a sentence of two years' disqualification cannot be seen as crushing ormanifestly excessive. He submits that this was serious offending which could haveresulted in fatalities.[20] On the issue of failure to consider the four weeks of 24 hour curfew,Mr Herring submits that regardless, at this point any decrease would constitutetinkering with the sentence.Approach on appeal[21] The Court on appeal must allow the appeal if satisfied that for any reason thereis an error in the sentence imposed on conviction and a different sentence should beimposed. Otherwise, the Court must dismiss the appeal.4 In deciding whether toimpose a different sentence, the Court does not simply substitute its own view for thatof the original sentencing Judge.5 Rather, it must be shown that the sentence ismanifestly excessive or wrong in principle.6 The focus is on the end result rather thanthe process by which the sentence was reached.7Procedural history[22] Because of the nature of the appellant's submissions, it is necessary tosummarise the procedural history of this matter.[23] The offending occurred on 20 September 2017. Mr Chaaya first appeared on23 February 2018. On this date, a bail condition was imposed prohibiting him from4 Criminal Procedure Act 2011, ss 250(2) and (3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].6 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 4, at [30]-[35].7 Tutakangahau v R, above n 5, at [36].driving. On 2 August 2018, after receipt of a sentencing indication, Mr Chaaya entereda plea of guilty. No indication about disqualification was given.[24] On 19 November 2018 a pre-sentence report was prepared. Mr Chaaya'sproposed address, his family's home address, was deemed technically unsuitable forhome detention due to poor signal in certain areas. His sentencing was postponed. On27 November 2018 a second report was prepared. It determined that the EM signalcould not be "boosted" at the proposed address. It was not until 8 February 2019 thata third report was prepared and another address suggested. Mr Chaaya was sentencedthree days later, on 11 February 2019.[25] Just over a month later, Mr Chaaya's home detention address becameunavailable. He was immediately removed and relocated to his originally proposedaddress. A week later he appeared in the Waitakere District Court after being servedwith an application to cancel his sentence of home detention. His sentence wascancelled and he spent four and a half weeks on a 24 hour curfew to allow a suitablehome detention address to be found. On 18 April 2019 he was re-sentenced by JudgeBouchier to home detention for a period of nine months.8[26] On 11 July 2019 he was moved to his family home following further homedetention address difficulties. After a few weeks, his probation officer allowed him toremain at his family home address for the remainder of his sentence provided he doesnot go to the side of his house where there is no reception.Analysis[27] On the issue of failure to recognise Mr Chaaya's time spent on 24 hour curfewwhen he was re-sentenced on 18 April 2019, I agree with Ms Cooper and Ms Archibaldthat this would generally warrant a discount. They seek two to three weeks. This is apoint relating to the re-sentencing by Judge Bouchier, but that is within the scope ofthe appeal.8 Police v Chaaya [2019] NZDC 23637.[28] Mr Herring has drawn my attention to Taylor v R,9 where the Court of Appealindicated that errors which amount to "credit of such temporal insignificance as toamount to mere tinkering with the sentence" do not usually justify allowing anappeal.10 In this case, an adjustment of the level sought would amount to suchtinkering. Accordingly, I do not consider any adjustment is appropriate in thecircumstances.[29] I turn to the issue of the appropriate period of disqualification. There is notariff or guideline decision for the imposition of a disqualification from driving. Eachparticular factual situation must be assessed in terms of the principles and purposes ofsentencing generally.11[30] The competing considerations to be taken into account in imposing a period ofdisqualification were outlined by the Court of Appeal in Hitchens v Police:12Long periods of disqualification typically leave little hope for offenders.On the other hand, it is incumbent on the Courts to keep dangerous drivers offthe road for as long as reasonably possible.[31] On the policy considerations underlying the disqualification from driving, theremarks of Dunningham J in Mathias v Police,13 recently endorsed by the Court ofAppeal in Taiapa,14 are relevant:[37] I also accept the appellant's submission that, as the purposes andprinciples of sentencing apply to any form of "dealing with an offender", theymust apply to the exercise of the discretion under s 124. That section providesthat the Court may make an order under that section "in addition, to, or insteadof, passing any other sentence or making any other order". This makes it clearthat an order under this section may, in some cases, meet the purposes andprinciples of the Sentencing Act without the need for any other sentence.[38] An order under s 124 has both punitive and protective purposes.The loss of license is a way of making the offender accountable, and ofdenouncing his or her behaviour and of deterring the offender and others fromsimilar offending. Equally, though, it can provide a means of protecting thecommunity from the offender.9 Taylor v R [2017] NZCA 574.10 At [31].11 Taiapa v R [2019] NZCA 524 at [31].12 Hitchens v R CA380/03, 25 March 2004.13 Mathias v Police [2016] NZHC 959.14 Taiapa v R, above n 11, at [28]-[29].[39] Where the ability to drive facilitated the offence, there may be a goodreason for imposing disqualification to limit the opportunity for the offenderto continue offending in that way. Equally, however, I accept the appellant'ssubmissions that where the inability to drive would hinder the offender'srehabilitation and reintegration, or would mean that the totality of penaltiesimposed, offends the principle that the least restrictive sentence appropriate inthe circumstances should be imposed, that would point against an order beingmade under s 124.[32] As the Court of Appeal also observed in Taiapa, it can fairly be inferred that alengthy period of disqualification would impact on a person's ability to obtain andkeep employment.15[33] The Judge dealt with disqualification briefly, correctly noting the competingconsiderations referred to in Hitchens and concluding that two years' disqualificationwas appropriate. The Court of Appeal in Taiapa has recently confirmed that areasoned analysis is required.16[34] Further, the Judge did not appear to consider whether credit should be givenfor the time Mr Chaaya was prohibited from driving while on bail. Thus, as MrHerring accepted, it is appropriate I consider that issue effectively afresh.[35] I accept Ms Archibald's submission that in the circumstances of this case MrChaaya should have been given credit for his time prohibited from driving while onbail. As Hinton J said in Prowse v Police:17The Court may direct that the period of disqualification be back-dated orcommence on a future date.The obvious example of where a Court may direct that a period ofdisqualification be back-dated is where a person was on bail prior to thesentencing and a condition of the bail was that they not drive. Assuming theycomplied with that condition, the Court might reasonably back-date thedisqualification to some extent, so as to not inadvertently punish someone forlonger than was required.[36] Mr Chaaya spent nearly a year on bail prohibited from driving. This is was asignificant period of time, particularly considering the ultimate period of15 Taiapa v R, above n 11, at [31].16 At [33]-[35].17 Prowse v Police [2019] NZHC 307 at [26]-[27].disqualification imposed. I consider this warranted recognition in his period ofdisqualification.[37] I also accept the appellant's submission that Mr Chaaya's reintegration intosociety will be impacted by a longer period of disqualification. Mr Chaaya has noprior criminal history. As his qualification (a university degree in computer science),community references, and genuine remorse demonstrate, his rehabilitative prospectsare excellent. I agree with Ms Cooper and Ms Archibald that an additional year ofbeing unable to drive will unduly hinder his rehabilitation, particularly given the earlystage of his career (he is aged 22 with no work experience yet). This is not a casewhere public safety requires that he be kept off the road for a longer period. Hisprobation officer indicated that he is expected to complete a driving course in early2020.[38] I do not consider that a longer period of disqualification would have beenappropriate thereby offsetting credit for the time Mr Chaaya was prohibited fromdriving while on bail. I conclude that the disqualification period should be adjustedby giving credit for the year Mr Chaaya was prohibited from driving while on bail.Result[39] The application for extension of time is granted.[40] The appeal is allowed. The sentence of two years' disqualification fromdriving is quashed. A disqualification period of one year from 11 February 2019 isimposed.[41] In all other respects the original sentence stands.________________________________Gault J