Hakiwai v Police - [2012] NZHC 2625

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-24

2012] NZHC 2625

RUSSELL WILLIAM HAKIWAI
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 9 October 2012

Counsel: E J Forster for the Appellant
N M Graham for the Respondent

Judgment: 9 October 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:
Mr E J Forster, Barrister, Hastings
Ms N M Graham, Elvidge & Partners, Office of the Crown Solicitor, Napier

HAKIWAI V POLICE HC NAP CRI-2012-441-24 [9 October 2012]

[1] Mr Hakiwai appeals against a total sentence of 2 years and 4 months imprisonment. This was imposed on 13 July 2012. There were two offences of driving while disqualified having been convicted at least twice previously with an offence under s 32 of the Land Transport Act. The maximum penalty for that offence is imprisonment for a term not exceeding 2 years. He was also sentenced for one offence of driving with excess breath alcohol. The reading was 180 milligrams of alcohol per 100 millilitres of blood. This also was a charge involving previous convictions on at least two occasions. Again, the maximum penalty is imprisonment for 2 years.

[2] The end sentences were 14 months imprisonment for driving while disqualified and 14 months imprisonment for driving with excess breath alcohol with the sentences to be served cumulatively. This accounts for the total end sentence of
2 years 4 months imprisonment.

[3] There was one offence of driving while disqualified on 5 January 2011. Sentencing on this was deferred for various reasons which I need not go into. It resulted in the sentencing occurring in conjunction with the offences on 29 August
2011.

[4] Mr Hakiwai was charged with driving a motor vehicle on Te Mata Road on

29 August in the course of which the car hit a pedestrian barrier. The breath alcohol reading resulted. The essence of Mr Hakiwai’s explanation was that he was on his way home but ran out of petrol and decided to head backwards down the road to the petrol station and that he was looking out the driver’s side window when he hit the barrier. I interpolate here, from Mr Forster’s submissions on behalf of Mr Hakiwai, that Mr Hakiwai appears to regard what he did on this occasion as being something less than driving a motor vehicle, or less than being in control of a motor vehicle. There is no doubt that what he did constituted the offences, and he has pleaded guilty.

[5] The sentences imposed are accounted for in very substantial measure by the number of previous convictions both for driving while disqualified and for driving with excess breath or blood alcohol. This was discussed by the Judge as follows:

[4] The problem I have Mr Hakiwai is that you have already got 31 previous convictions for driving while disqualified and some 14 convictions for drink driving offending and the first of those occurred in 1985 and have continued on remorselessly since that date. In fact the real problem in…

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.

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Details

Case: [2012] NZHC 2625
Decision Date: 9 October 2012

CaseChat Overview and Summary

Mr Hakiwai appealed against a total sentence of 2 years and 4 months imprisonment for two offences of driving while disqualified and one offence of driving with excess breath alcohol. Each of the offences involved prior convictions on at least two occasions. The maximum penalty for each offence is imprisonment for 2 years. The Court was required to determine whether the sentences imposed were manifestly excessive and whether they offended the totality principle.

The Court considered the extensive history of prior convictions, which included 31 convictions for driving while disqualified and 14 convictions for drink driving. The Judge set the starting point for the excess breath alcohol offence at 18 months imprisonment and for the disqualified driving offences at 2 years imprisonment. The Court of Appeal had previously held that cumulative sentences could be imposed for these types of offences even if they related to a single act of driving. The Court found that the end sentences imposed were not manifestly excessive and did not offend the totality principle. The appeal was dismissed.

Orders