Awatere v Police

[2015] NZHC 1374

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-19 [2015] NZHC 1374

BETWEEN

WIPEI AWATERE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 June 2015
Counsel:	P R Strachan for Appellant S W P Woods for Respondent
Judgment:	17 June 2015

JUDGMENT OF BROWN J

[1]      The appellant, Mr Awatere, pleaded guilty on 19 February 2015 to a series of charges in respect of offences that occurred between November 2014 and January

2015.  On 13 March 2015 he was sentenced by Judge A I M Tompkins in the District Court at Lower Hutt to a cumulative term of two years and six months’ imprisonment.1

[2]      The appellant had previously pleaded guilty to a March 2014 burglary and was sentenced in August 2014 to 10 months’ home detention.  He appeared in the District Court on 13 March 2015 following a Crown application to substitute for that sentence one of imprisonment.  Judge Tompkins granted the application and it was in

that context that the appellant was sentenced on the remaining charges.

1      Police v Awatere [2015] NZDC 4236.

AWATERE v NZ POLICE [2015] NZHC 1374 [17 June 2015]

was sentenced:

Date	Offence	Section	Maximum penalty	Sentence imposed
22 March 2014	Burglary	Crimes Act 1961, s 231	Ten years’ imprisonment	Six months’ imprisonment (substituted sentence from 10 months’ home detention)
9-10 November 2014	Breach of home detention conditions	Sentencing Act 2002, s 80S	One year imprisonment; fine not exceeding $2,000	Three months’ imprisonment (cumulative)
19 November 2014	Breach of home detention conditions	Sentencing Act 2002, s 80S	One year imprisonment; fine not exceeding $2,000	Three months’ imprisonment (cumulative)
19 November 2014	Reckless operation of motor vehicle	Land Transport Act 1998, s 35(1)(a)	Three months’ imprisonment; fine not exceeding $4,500	Three months’ imprisonment (cumulative); one year disqualification
19 November 2014	Failure to stop on blue and red flashing police signal (third or subsequent)	Land Transport Act 1998, ss 52(1)(c) and 52(4)	Three months’ imprisonment; fine not exceeding $10,000	One year disqualification (cumulative on 19 November disqualification)
19 November 2014	Driving while forbidden	Land Transport Act 1998, ss 113(2)(e) and 52(1)(c)	Fine not exceeding $10,000; disqualification	Convicted and discharged
9 December 2014	Escape from custody	Crimes Act 1961, s 120(1)(c)	Five years’ imprisonment	Six months’ imprisonment (cumulative)
19 December 2014	Escape from custody	Crimes Act 1961, s 120(1)(c)	Five years’ imprisonment	Six months’ imprisonment (cumulative)

4 January 2015	Reckless operation of motor vehicle	Land Transport Act 1998, s 35(1)(a)	Three months’ imprisonment; fine not exceeding $4,500	Three months’ imprisonment (cumulative); one year disqualification (concurrent on 19 November 2014 disqualification for reckless driving)
4 January 2015	Failure to stop on blue and red flashing police signal (third or subsequent)	Land Transport Act 1998, ss 52(1)(c) and 52(4)	Three months’ imprisonment; fine not exceeding $10,000	One year disqualification (concurrent on 19 November disqualification for failing to stop)
4 January 2015	Driving while forbidden	Land Transport Act 1998, ss 113(2)(e) and 52(1)(c)	Fine not exceeding $10,000; disqualification	Convicted and discharged
Total	Two years, six months’ imprisonment; two years’ disqualification

[4]      The  appellant  now  appeals  against  the  sentence  to  imprisonment  of two years, six months on the ground that it is manifestly excessive.

Facts in brief

[5]      The following is a brief summary of the appellant’s offending.

Burglary

[6]      The appellant broke into a Lower Hutt address by punching a hole through a glass window pane in the front door and reaching through to unlock it.   He cut himself and left traces of blood at the address.   He stole jewellery, passports and expensive electronics.  The passports were subsequently used (by persons unknown) to gain access to the victims’ bank accounts, resulting in a loss of some $20,000.

[7]      The appellant was driving in the early hours of the morning.  He turned his headlights off when passed by a police car, prompting the police to activate its lights and siren.  The appellant sped away and was pursued for a short time by the police, who abandoned the pursuit because of the high speed at which the appellant was driving, the fact the pursuit was in a residential area and the appellant’s driving on the wrong side of the road.  The appellant parked the car at an address and ran to its back door.   He dumped his clothes behind a couch inside the address (so as to conceal them) and sat at the kitchen table.

[8]      This  offending  gave  rise  to  the  19  November breach  of  home  detention conditions charge.2

Escape from custody – 9 December 2014

[9]      The appellant was in holding cell at Lower Hutt District Court awaiting transfer back to Rimutaka Prison.  He was handcuffed.  He noticed another offender being bailed from the holding area to outside the court building.   The appellant pushed through the doorway past a Correction officer and jammed the door shut with his foot.  He then went through a second door that lead outside.  He ran into a nearby mall, and changed his clothing to alter his appearance.  He covered his handcuffed hands with a t shirt.   He was eventually located in the movie theatre and was pepper-sprayed during an attempt to evade an officer there.  He ran from the mall into a supermarket and secured himself into an internal storage cupboard there.  He was located after a review of CCTV footage.

Escape from custody – 19 December 2014

[10]     While in custody at Rimutaka Prison, the appellant swallowed some metal objects and was transferred as a result to Hutt Hospital for treatment.   He was

handcuffed during the transfer.  Two days into his stay at the hospital, the appellant

2      I am not aware of the circumstances which give rise to the 9-10 November breach of home detention charge.

at large for some time, and was arrested in January 2015.

Driving offences – 4 January 2015

[11]     The appellant left his home address in a vehicle following an argument with his partner.  He drove around a busy and pedestrian-laden central Petone at speed. He was noticed by a police officer who was nearby in a stationery patrol car.  The appellant drove past the officer slowly, allowing the officer to identify the appellant. The officer activated his sirens and lights and began a pursuit, with the appellant reaching a high speed and driving erratically. After a high speed pursuit through Petone, the pursuit was abandoned given the dangerous circumstances.

Decision under appeal

[12]     The relevant passages of Judge Tompkins’ sentencing notes are as follows:

[6]       Mr Awatere’s counsel, Ms Strachan accepts the inevitability of the recommendation in the pre-sentence report of imprisonment.  After a brief discussion and taking further instructions, she also accepts, she advises that her client accepts, that in all the circumstances and in particular to increase Mr Awatere’s chances of undertaking effective rehabilitative intervention whilst in prison, a total end sentence in excess of two years’ imprisonment is the least restrictive option.   Because that will ensure, as Mr Awatere has done on numerous occasions in the past, that he falls under the oversight of the Parole Board so that it is hoped effective rehabilitative intervention, particularly now that, as Ms Strachan commented, Mr Awatere is entering his third decade.   The community’s interest in seeing a decrease in the quantity and frequency of his offending will be realised.

[7]       It is apparent that numerous rehabilitative opportunities have been afforded Mr Awatere in the past, but his continuing offending and in the end, unsuccessful escapes and the like, point to that rehabilitative intervention as having been in the past ineffective.

[8]       It is also apparent that Mr Awatere has a continuing and repetitive tendency to attribute his offending to external sources to factors that have troubled him in the past to opportunities that unexpectedly present themselves, to the environment in which he is placed and the like.

[9]       The most recent manifestation of that is Mr Awatere’s attributing of his and subsequent offending, to an untimely death of a family member. And whilst the fact that that occurrence is not in doubt, Mr Awatere’s extensive criminal history and numerous convictions for breaching release conditions, breaching parole, escaping and breaching community-based sentences, mean

that in this sentencing exercise that proffered explanation carries little or no weight.

[10]     Mr  Awatere  will  only  stop  offending  when  he  stops  blaming everybody else and everything else for his own choices.

[11]     Against  all  of  that  background  Mr Awatere  is  dealt  with  in  the following way and in more or less chronological order[.]

[13] The Judge then proceeded to sentence the appellant in accordance with the table set out above at [3].

Grounds of appeal

[14]     The appellant appeals on the ground that the end sentence imposed was manifestly excessive.  In particular, he says:

(a)      the Judge was wrong in his employment of cumulative sentences, and as a result did not adjust the two years six months’ imprisonment for totality;

(b)      the Judge did not take into account the appellant’s guilty pleas; and

(c)      the Judge did not take into account the personal circumstances of the appellant over the period of his offending.

[15]     In response the respondent says:

(a)      the sentence imposed was well within the range available to the Judge and is reflective of the total gravity of the offending;

(b)the Judge informed the appellant’s counsel the guilty pleas had been taken into account in reaching the end sentence (although that consideration was not recorded in his written reasons);

(c)       the Judge took into account the appellant’s personal circumstances

and concluded they carried little weight.

[16]     In addition the respondent says that, even if Judge Tompkins had adopted a different method of sentencing – that is to sentence on the lead offence of burglary and uplift for others, the sentence of two years and six months’ imprisonment would nonetheless have been available to him.

Legal principles on appeal

[17]     An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.  Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

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

and

(b)      a different sentence should be imposed.

[18]     A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered, but not in a way that amounts to a minor adjustment, or ‘tinkering’.

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

Use of cumulative sentences and the totality principle

[20]     Sections 84 and 85 of the Sentencing Act 2002 provide guidance as to the use of cumulative sentences vis-à-vis concurrent sentences and the totality principle.

[21]     Section 84 provides:

(1)       Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)       Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)       In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a)      the time at which they occurred; or

(b)      the overall nature of the offending; or

(c)       any other relationship between the offences that the court considers relevant.

[22]     Section 85 provides:

(1)       Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences   is   not   disproportionately   long,   the   imposition   of cumulative sentences would result in a series of short sentences that individually  fail  to  reflect  the  seriousness  of  each  offence,  then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)      If only concurrent sentences are to be imposed,—

(a)       the  most  serious  offence  must,  subject  to  any  maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)       each  of  the  lesser  offences  must  receive  the  penalty appropriate to that offence.

[23]     Further, s 80F provides the Court with sentencing options if it receives an application to vary a sentence of home detention when an offender commits an imprisonable offence while subject to a sentence of home detention.   Subsection (4)(d) provides that the Court may cancel the home detention sentence and substitute any other sentence:

… that could have been imposed on the offender at the time that the offender

was convicted of the offence for which the sentence was imposed.

[24]     The Court must also bear in mind that its concern on appeal is with the end sentence reached and whether it is within the available range, rather than the process by which the sentence was reached.3

Discussion

[25]     The appellant acknowledges that as a general proposition offending that is unrelated in either time or kind justifies the imposition of cumulative sentences. That said, the appellant says (essentially) that the offending ‘double-ups’ – the two charges for each of breaching home detention, escaping from custody, and reckless driving – should not have attracted cumulative sentences.

[26]     What the appellant does not address is the fact that, although those offences are similar in kind, they were unconnected in time and did not arise out of a continuing course of conduct (except for the 19 November breach of home detention conditions arising from the 19 November driving offences).  While s 84 is silent on that issue, commentators agree that cumulative sentences are generally appropriate if

the offences cannot reasonably be described as a continuing course of conduct.4

Even similar offending that occurs at different times, but is committed on the same victim, is dealt with by way of cumulative sentences.5

[27]     On any view of the facts I do not consider it can be said the appellant’s post-burglary offending can be seen as a continuing course of conduct, notwithstanding that the second episode of driving offences occurred while he was on the run from the authorities.  That offending occurred subsequent to his escape from custody, but not because of it.

[28]     I do consider, however, that the three months’ cumulative sentence for the

19 November breach of home detention conditions was not justified.  That offence occurred by default, the appellant having left his home detention address.  It was part of the same series of events.   Consequently I consider that the sentence on that

charge should have been concurrent, not cumulative.  Hence to that extent I allow the

3      Tutakangahau v R [2014] NZCA 279 at [36].

4      Bruce Robertson (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson

Reuters) at [SA84.02(1)].

5      R v Clarke CA128/06, 6 June 2006.

appeal and substitute a sentence of three months to be served concurrently.  Hence the total sentence reduces to two years and three months.

[29]     In terms of the totality principle, it is clear that an end sentence of two years and  three  months  is  not  excessive  considering  the  seriousness  of  the  overall offending.

Guilty pleas

[30]     I  recognise  the  fact  that  the  appellant’s  guilty  pleas  were  not  expressly referred to by the learned Judge.  However in this case, immediately after sentencing, Ms Strachan raised with the Judge the issue whether in determining the sentences the appellant’s guilty pleas had been taken into account.  The Judge replied that he had factored into his sentence the fact of the guilty pleas.  While it is unfortunate that this was not addressed in the sentencing notes, there is no dispute that the Judge stated in court that he had applied a discount for the guilty pleas.

[31]     On any view of the facts all of the appellant’s offending is serious in nature and the police had a strong case against him on the majority of the charges.  In those circumstances it is unlikely that the appellant would have been afforded the full

25 per cent discount for an early guilty plea,  which is by no means  automatic. Discounts for guilty pleas are calculated by taking into account all of the relevant circumstances.

[32]     Despite the lack of formality in the Judge’s sentencing notes on this issue, given the undisputed comments by the Judge and  considering the end sentence imposed, I conclude that the appellant’s guilty pleas were taken into account.

[33]     This ground of appeal is dismissed.

Appellant’s personal circumstances

[34]   The appellant submits that insufficient regard was had to his personal circumstances at the time of his offending, particularly that which occurred between November 2014 and January 2015.   It is quite clear that the Judge considered the

appellant’s circumstances, which I acknowledge are unfortunate.   However in the context of the serious and repetitive nature of the appellant’s offending and his lengthy criminal history, the Judge was entitled to conclude that those personal circumstances would not affect the sentence he would impose.

[35]     I   note   further   than   in   the   pre-sentence   report   that   was   before Judge Tompkins, the appellant himself takes responsibility for the consequences that face him, and acknowledges that he could (and should) have dealt with his circumstances in a way other than by committing more offences.

[36]     This ground of appeal too is dismissed.

Conclusion

[37]     The appeal  is  allowed  to  the extent  explained  at  [28]  above.   The total sentence imposed is imprisonment of two years, three months.

Brown J

Solicitors:

Just Law, Upper Hutt

Luke Cunningham & Clere, Crown Solicitors, Wellington