[1] Mr Apiata appeals a sentence of 29 months’ imprisonment imposed on him by Judge L Harrison in the District Court at New Plymouth on 14 October 2016 after he pleaded guilty to four charges of driving whilst disqualified or suspended.1

[2] Mr Apiata says that sentence was manifestly excessive. He should have received a short term sentence of imprisonment, that is, one less than two years, and should have had that sentence of imprisonment commuted to one of home detention.

Context

[3] Mr Apiata has a lengthy history of driving whilst disqualified offending. In
December 2014 Mr Apiata was convicted on one of those offences. On that occasion, special circumstances had been found: he was not further disqualified.

1 Police v Apiata [2016] NZDC 20574.

APIATA v POLICE [2016] NZHC 3119 [16 December 2016]

Rather, in terms of s 94 of the Land Transport Act 1998, he was sentenced to community work and provided with an opportunity to obtain a driver’s licence so as to break his cycle of offending. He would appear to have obtained a learner’s licence, but gone no further.

[4] On 27 February 2016 he was stopped by the police whilst he was driving. His licence was suspended on that date for a period of three months because he had excess demerit points. He was subsequently stopped whilst driving on 21 April and
12 May. As regards the events on those days, he received the first two convictions for driving whilst suspended that are at issue here. Whilst those charges were pending, Mr Apiata was stopped again in June, and his licence again suspended under the demerits points system. Whilst subject to that suspension, he was stopped whilst driving on 25 July and 14 September, giving rise to the third and fourth convictions that are at issue here.

[5] Those convictions are Mr Apiata’s 20th to 23rd for driving whilst disqualified/suspended.

[6] Mr Apiata has a considerable number of other convictions (in all some 90) for a range of, generally relatively minor, dishonesty, violence and drink driving offending. Mr Apiata also has numerous convictions for failing to comply with the terms of non-custodial sentences. Mr Apiata has been sentenced to a number of sentences of imprisonment. Most recently, and most seriously, in May 2015 he was sentenced to a total of nine months’ imprisonment for offending involving breaches of a protection order and assault with intent to injure.

The challenged decision

[7] The Judge noted the lengthy history of like offending. She categorised Mr Apiata as a recidivist offender, with an “horrendous history” of breaching court orders and sentences, and a cavalier attitude towards compliance with driving restrictions.

[8] Referring to the decision of Wylie J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Apiata v Police

Details

AGLC: Apiata v Police [2016] NZHC 3119
Case: [2016] NZHC 3119
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the case of Apiata v Police, the appellant, Jason Paul Apiata, appealed against a sentence of 29 months’ imprisonment imposed by the District Court at New Plymouth. Mr Apiata pleaded guilty to four charges of driving whilst disqualified or suspended. He argued that the sentence was manifestly excessive and that he should have received a shorter term sentence of imprisonment, which could have been commuted to one of home detention. The central legal issues were whether the Judge’s approach in setting the starting point and cumulative sentences was correct, and if the overall sentence was manifestly excessive.

The court considered the principles of sentencing, particularly those relating to cumulative and concurrent sentences, and the principle of totality. It determined that the relevant previous offending should be included in the calculation of the starting point sentence. The court found that concurrent sentences were appropriate for the four charges as they reflected a continuing course of conduct. However, where the maximum sentence for the offence could not be applied due to the concurrent sentences, cumulative sentences could be imposed.

The court concluded that the appropriate starting point for the fourth offence, given the degree of recidivism, was two years and six months’ imprisonment, with cumulative sentences of six months for the other three charges. The court also considered mitigating factors such as Mr Apiata having his child in his care and the absence of dangerous driving. However, these factors did not mitigate the offending as the essence was disregard for obtaining and maintaining a valid driver’s licence.

The court allowed the appeal and reduced the sentence by two months to 27 months’ imprisonment, consisting of twelve months for the fourth charge, and five months cumulative for each of the first, second, and third charges, with one month concurrent for the charge of failing to give particulars and in substitution for remitted fines.

Orders