AHKOUI LIAINA AND NEW ZEALAND POLICE

[2025] NZHC 568

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-736

[2025] NZHC 568

BETWEEN

AHKOUI LIAINA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 March 2024
Appearances:	V Tava for Appellant C Best for Respondent
Judgment:	11 March 2025

ORAL JUDGMENT OF BECROFT J

[Appeal against sentence]

Solicitors/Counsel:

Kayes Fletcher Walker, Manukau VI Tava, Barrister, Auckland

LIAINA v NEW ZEALAND POLICE [2025] NZHC 568 [11 March 2025]

What this appeal is about

[1]    Mr Akhoui Liaina appeals his sentence of two years five months’ imprisonment (29 months) imposed by Judge L Radich in the Manukau District Court on 4 December 2024.

[2]Mr Liaina had pleaded guilty to six charges as follows:

(a)two charges of driving while disqualified being third or subsequent offences;1

(b)one charge of unlawfully using a motor vehicle;2

(c)breach of release conditions by failing to report;3

(d)unlawfully getting into a motor vehicle;4 and

(e)resisting arrest.5

[3]Mr Liaina, through Mr Tava, advances three, if not four, grounds of appeal:

(a)the starting points for what Mr Tava describes as the lead driving while disqualified charges, specifically their “cumulative” addition, are manifestly excessive and wrong in principle;

(b)an insufficient reduction was given for Mr Liaina’s personal factors under s 27 of the Sentencing Act 2002;

(c)the end sentence is, therefore, manifestly excessive and should have been at, or under, two years’ imprisonment; and

(d)if that is so, leave should be granted to Mr Liaina to apply for home detention.

1      Land Transport Act 1998, ss 32(1)(c) and 32(4). Maximum penalty two years’ imprisonment,

$6,000 fine, 12 months’ disqualification.

2      Crimes Act 1961, s 226(1). Maximum penalty 7 years’ imprisonment.

3      Sentencing Act 2002, s 96(1). Maximum penalty imprisonment for a term not exceeding one year or fine not exceeding $2,000.

4      Crimes Act 1961, s 226(2). Maximum penalty two years’ imprisonment.

5      Summary Offences Act 1981, s 23(a). Maximum penalty three months’ imprisonment or fine not exceeding $2,000.

[4]Mr Tava has advanced strong and clear written and oral arguments in Court.

[5]    The appeal is opposed by the police who are represented by Ms Best. In the police’s view, the end sentence is plainly appropriate. It is certainly not manifestly excessive.

[6]    I have reached a clear view on this matter. Despite Mr Tava’s submissions, I conclude that the appeal must be dismissed. I now set out my reasons.

The charges

[7]The charges relate to four separate incidents.

(a)1 April 2024 — the appellant was stopped at an alcohol checkpoint and was found to be disqualified from driving. On 19 March 2024, he had been disqualified for 12 months (with effect from 4 April 2024) and, at the same time, sentenced to eight months' imprisonment on a charge of driving while disqualified (third or subsequent offence).

(b)4 April 2024 — the appellant drove a vehicle that had been stolen days before the incident, owned by Auto Services Mt Eden, valued at approximately $9,000 (the “unlawful use” charge)

(c)24 April 2024 — after being previously released from prison, the appellant failed to report to Probation, which resulted in a charge of breach of release conditions.

(d)4 May 2024 — the appellant drove a stolen Nissan vehicle displaying stolen registration plates and parked at the Mt Richmond Hotel. Police located the appellant in the gaming room and attempted to place him under arrest. He attempted to leave the room to avoid being arrested and was tackled by Police. When the officers tried to place handcuffs on him, he resisted by pulling away a number of times. The appellant was

also found to be disqualified from driving. This incident led to the charges of driving while disqualified (third or subsequent offence), unlawfully getting into a motor vehicle and resisting Police.

Mr Liaina

[8]    Mr Liaina is now about 32 years old. He has 52 previous convictions dating back to 2013. These include offences relating to driving, violence, dishonesty and breaches of Court-imposed conditions. The two driving while disqualified charges are effectively Mr Liaina’s eleventh convictions although they will be shown on his record as the eleventh and twelfth for this type of offending. I say that because the second was committed before a conviction for the 1 April offence had been imposed.

[9]    I note that all the previous disqualified driving offences took place within a period of 10 years with the most recent offence taking place in June 2023, for which he was sentenced on 19 March 2024 to eight months’ imprisonment. It will be seen, therefore, that he must have been only very recently released from prison, taking into account, I assume, time previously spent in custody.

[10]   It is worth noting that for unfathomable reasons, in respect of the 4 April 2024 incident of unlawfully using a stolen motor vehicle, where it is accepted Mr Liaina was driving, he was not charged with a separate driving while disqualified offence. Neither Ms Best, nor Mr Tava for that matter, could explain why.

[11]   At the very least, Mr Liaina’s knowledge at the time that he was disqualified, given his guilty plea to a driving while disqualified three days earlier, must be considered at least in the general sense, as a “background” matter of aggravation.

[12]   I add that Mr Liaina was convicted and discharged in respect of the breach of release conditions.

The District Court decision

[13]   In reaching the end sentence of 29 months' imprisonment, his Honour assessed and cumulated the starting points for each of the four incidents separately, and then adjusted the global starting point downwards, having regard to the principle of totality.6 His Honour structured the sentence as follows:

(a)starting point of 14 months' imprisonment for the driving while disqualified (third or subsequent) charge on 1 April 2024;

(b)starting point of 22 months' imprisonment for the driving while disqualified (third or subsequent), unlawfully getting into motor vehicle, and resisting Police charges from 4 May 2024;

(c)starting point of 12 months' imprisonment for the unlawfully using a motor vehicle charge from 4 April 2024;

(d)totality reduction of 10 months from the cumulated starting point of 48 months' imprisonment (14 months, plus 22 months, plus 12 months), resulting in 38 month starting point;

(e)uplift of four months' imprisonment in relation to the appellant's criminal history;

(g)reduction of 20 per cent for guilty pleas;

(h)reduction of 10 per cent for the appellant's personal background as evident from his affidavit, contents of the pre-sentence report, and a letter of remorse handed up at sentencing; and

(f) convicted and discharged for the breach of release conditions charge from 24 April 2024;

[14]   This led to an end sentence of 29 months' imprisonment and disqualification from driving for a period of 18 months.

6      Section 85 of the Sentencing Act considers the totality approach and suggests that when applying cumulative sentences, the overall period of imprisonment should not be disproportionate to the “gravity of the overall offending.”

[15]   It is the cumulative assessment of the two driving while disqualified charges and the 10 per cent reduction for personal factors (allegedly insufficient) that the appellant challenges. The individual starting points and assessment of the other charges are not disputed.

[16]   It is worth observing that with great respect to the District Court Judge, the process that he used to calculate the end sentence, was evidently not in accord with that set out by the Court of Appeal in, for instance, Moses v R.7 In fact, this was a matter I discussed in the more recent case of Mo’unga v R.8 In busy District Court sentencing lists one has considerable sympathy for sentencing judges; the mathematical approach required by the Court of Appeal is not without complexity.

[17]   Generally, any reduction for personal mitigating features should be from the starting point before any  uplift  for  personal  aggravating  factors.  Therefore,  the 30 per cent total reductions should have been deducted from the 38 months not the 42 months. If that had been done, the end result (with rounding to benefit Mr Liaina) would have 26 months, with a four-month uplift, totalling two years six months’ imprisonment. So, in fact, had the right methodology been employed, Mr Liaina would have received a sentence one month longer than he did.

[18]   Given this  is a defendant’s  appeal,  I will  not increase the sentence.  But  Mr Liaina needs to know he has been the recipient of a mathematical error in his favour which reduced by one month the sentence that should have otherwise been imposed by the Judge.

The law on appeal

[19]   Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:

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

7      Moses v R [2024] NZCA 121.

8      Mo’unga v R [2023] NZHC 1967.

(b)a different sentence should be imposed.

[20]In any other case, the Court must dismiss the appeal.9

[21]   As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:10

[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.

[22]   The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau:11

It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

[23]   A sentence that is manifestly excessive is but one possible sentencing error. Others include a sentence that involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.

The starting point

[24]   The starting point imposed by the Judge for all the offending was 38 months’ imprisonment. Mr Tava makes the principled submission that the Judge was in error in taking the three sets of offending, according them individual sentences, and then cumulating them together. In Mr Tava’s view, given that two of the groups of offences

9      Criminal Procedure Act 2011, s 250(3).

10     Campbell v R [2022] NZCA 579.

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

involved driving while disqualified, it would have been better to first start with a concurrent starting point for both driving while disqualified charges.12

[25]Two things can be said in response.

[26]   First, the two driving while disqualified offences were not technically identical. They were not both, what might be called, driving while disqualified “simpliciter”. The second of the two took place in the context of Mr Liaina driving a stolen vehicle, that he knew was stolen and when the police visited the gaming bar in the Mt Richmond Hotel, he tried to actively avoid arrest, I infer for the purpose of suppressing his identity. That makes the second driving while disqualified of a different and more serious “quality” than the first. There would be grounds for the Judge to depart from what might be a conventional approach taking into account both charges of driving while disqualified at the same time—that is a concurrent approach.

[27]   The second thing to say is that, in any case, the Judge stood back after conducting the exercise of cumulating the three different sentences and explicitly, as a matter of totality  and  overall  appropriateness  of  the  sentence,  reduced  it  by  10 months. On any analysis, that is a significant reduction and, in my view, “corrects” or “cures” any theoretical error in not adopting a concurrent approach.

[28]   Ms Best for the police accepts that it may have been more appropriate in this case to take the approach suggested by Mr Tava—that is a concurrent approach for the two driving while disqualified charges. However, Ms Best’s point is if that approach had been taken, it  would  result  in  “approximately”  the  same  starting  point  of  38 months’ imprisonment. This is her reasoning.

[29]   Six months would be appropriate for the first (1 April) driving while disqualified charge, with a concurrent starting point of 24 months’ imprisonment for both driving while disqualified sentences. A cumulative 12-month sentence for the unrelated unlawful use of a motor vehicle would be justified. Thus, says the Crown,

12 Sentencing Act 2002, s 84(2) specifies that concurrent sentences are generally appropriate if the offences for which an offender is being sentenced are of similar kind and are a connected series of offences. See also s 84(3).

a starting point of 36 months would have resulted—remarkably similar to the starting point reached by the Judge. But I would regard the police calculations as too low.

[30]   That is so taking into account a case such as Apiata v Police13 which attached to it has a very helpful appendix setting out 11 different cases where repeat driving while disqualified charges are analysed and the sentences and starting points imposed are set out.

[31]   The starting points I would have to say vary quite considerably. They show a wide range. In my view, they simply emphasise that sentencing for driving while disqualified is an intensely facts specific exercise. But Mr Tava is right to say, perhaps paradoxically, the more the number of repeat driving while disqualified offences are “clocked up”, the more the starting points tends to flatten out.

[32]   I would have thought even applying that table in a reasonable way and taking the 4 May most serious driving while disqualified offence first, that could easily have attracted a starting point itself of 20 to 24 months’ imprisonment given the serious context in which it took place and the aggravating associated charges.

[33]   The 1 April 2024 driving while disqualified charge, without the aggravating features of the second driving while disqualified offence, might on a reasonable application of the principles set in the other appendix, result in a starting point of between 10 to 20 months—which seems to be the range.

[34]   The two charges together and concurrently, in my view, would at least attract a 26-month starting point and possibly higher. To that starting point, would have to be added an uplifted amount to recognise the 4 April using a stolen vehicle charge— the vehicle having been recently stolen and valued at $9,000. The Judge applied an uplift of 12 months’ imprisonment for that charge, which is not disputed by Mr Tava; neither can it be. Given the fact that he was disqualified at the time, it could have been, and perhaps should have been, significantly higher to take into account that aggravating feature. But, responsibly, the Judge did not do so, I presume because no additional driving while disqualified charge had been laid.

13     Apiata v Police [2016] NZHC 3119.

[35]   All of which goes to show that adopting the method pressed upon the Court by Mr Tava still effectively gets to a 38-month starting point. And I think that Mr Liaina needs to know that starting point could have been higher.

[36]In my view Judge Radich has adopted a very fair and reasonable starting point.

[37]   In conclusion, on this aspect of the case, it seems to me that whatever “route” is taken or whatever sentencing road is travelled, the destination is the same. And that destination is a conclusion that 38 months as a starting point is entirely appropriate and cannot be criticised. And, as I say, it could have been higher. Neither is there any dispute for the modest uplift in all the circumstances taking into account all the totality of Mr Liaina’s overall criminal offending.

[38]   It is worth me emphasising, if Mr Liaina gets to read this decision, that in my view he is clearly not getting the message. Court orders mean what they say. They cannot be flouted with impunity, least of all driving while disqualified, and driving cars that are known to be stolen.

[39]   Mr Liaina has come to the position, which clearly Judge Radich reached, that a firm message needs to be given and a stake put into the ground.

[40]   I do not fault the end starting point adopted by Judge Radich. He has, as I say, imposed it in a way that might be considered, if not merciful, then entirely reasonable.

Reductions

[41]   After hearing Mr Tava, I can see no error in the Judge’s approach in applying a 20 per cent reduction for the guilty plea. In the circumstances it could not have been higher.

[42]   Neither is there any flaw in the reduction given of 10 per cent for Mr Liaina’s complicated and troubled background. Mr Tava is right to say that, customarily, reductions might be higher—15 per cent or more. But this is only where there is a causal link clearly demonstrated between the offending and a defendant’s background.

In my view, the causal link is not particularly strong. There is no justification for me to exceed the 10 per cent reduction imposed by Judge Radich.

Conclusion

[43]I conclude by adding the following remarks.

[44]   Mr Tava has put every possible point before the Court in respect of Mr Liaina’s appeal.

[45]   Also, Mr Liaina should know that if his appeal had been successful in the sense of resulting in an end sentence of two years or less, there would not have been the slightest possibility of me giving leave for him to apply for home detention. To do so, would be quite contrary to the principles of deterrence, accountability and denunciation, to say nothing of public safety.

[46]   In the past, Mr Liaina has breached Court orders and breached release conditions. He has also escaped from police custody, has assaulted police officers and has breached home detention conditions on at least two occasions. Everything in Mr Liaina’s record simply serves to emphasise that home detention would be entirely out of the question and would be, for him, a plainly inappropriate sentence. I speak directly so that Mr Liaina knows the situation.

[47]   More than that I cannot and should not say. The appeal must be and is dismissed.

Becroft J