TUHAKA v NEW ZEALAND POLICE [2021] NZHC 2499

TUHAKA v NEW ZEALAND POLICE [2021] NZHC 2499 [29 September 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-59[2021] NZHC 2499BETWEEN RAYMOND PHILLIP WORMINGTONTUHAKAAppellantAND NEW ZEALAND POLICERespondentHearing: 22 September 2021 (VMR)Counsel: Z S Meehan for AppellantJ G L Garden for RespondentJudgment: 29 September 2021JUDGMENT OF SIMON FRANCE J[1] Mr Tuhaka appeals a sentence of disqualification from driving, contending thathis application under s 94 of the Land Transport Act 1998 for instead a community-based sentence should have been granted.1 In the interim the effect of thedisqualification has been deferred pending appeal.2[2] The disqualification arises from two charges of driving while suspended.There was also a charge of breach of supervision conditions. The sentence was fivemonths' community detention, 12 months' intensive supervision and disqualificationfor a year and a day. The breach of supervision involved not attending when required,repeatedly.1 New Zealand Police v Tuhaka [2021] NZDC 15079.2 Tuhaka v Police [2021] NZDC 17807.[3] In July last year Mr Tuhaka appeared on a driving offence that should haveresulted in disqualification. However, he was successful in a s 94 application.[4] On its face there is not much that would seem to have supported the s 94application. Mr Tuhaka had had one already not long ago, continued to offend andhad a poor record in complying with community-based sentences which was the typeof sentence he wanted the Court to impose instead of the disqualification.[5] Mr Tuhaka filed an affidavit in which he claimed a desire to work.Disqualification would seriously affect his ability to do so. He explained his offendingas a product of pursuing alternative income options until he got a job. Thesealternatives involved driving which accumulated demerit points which led tosuspension. For example, there were demerit points for driving unregistered vehicles– these were seemingly old vans he was doing up to resell. Another was a test driveof a car he had fixed – he has a diesel mechanic qualification. Mr Tuhaka accepts heshould not have been driving.[6] There is a job offer but the evidence is incomplete. The Court has a letter froma recruitment agency saying there is a job and asking Mr Tuhaka to complete theattached form, which requests details such as driving convictions. It is not clear thatthe recruiting agency or the potential employer yet knows of the previous convictions,but they may do. What is clear is that Mr Tuhaka is actively seeking employment.[7] Mr Tuhaka is 47 years old. There has been a steady amount of comparativelyminor offences over the last 10 years, but as noted poor compliance with sentences.Of the current sentence it seems the intensive supervision is largely being compliedwith, but the community detention not so much. It is hard to know, however, the natureof any breaches. Mr Tuhaka denies them, and it may be a coverage issue at the relevantaddress.[8] Prior to the s 94 order in 2020, Mr Tuhaka's last disqualification was in 2010.That is a significant period of compliance. A very familiar pattern of disqualificationand breach looms with imprisonment a likely end point unless there is a change, andquickly.[9] The driving issues are relatively recent, there appears a genuine commitmentto getting work, and recent driving offending has not carried significant risk to thepublic. In these circumstances I consider a further opportunity should have beenprovided. It is appropriate to take one more chance at Mr Tuhaka sorting this out, andthere does not seem to me to be any real downside in terms of public risk. If it worksout the public upside is significant.Conclusion[10] The appeal is allowed.[11] The disqualification is quashed. In its place I impose the minimum sentenceof 40 hours' community work. I recognise this is not much. I make the point toMr Tuhaka that people are trying to assist but it is he who must now play his part._____________________Simon France JSolicitors:Crown Solicitor, Wellington for Respondent