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 relation to this further offending, along with the other offending, is that on

10 occasions in respect to those drink drive charges you have also been driving while disqualified.  So what that tells me is that you are willing to

ignore the order of the Court not to drive after you have been drinking.  So

you had an order not to drive but you elected to drink and then drove and on occasions the level was high.  You have a complete lack of responsibility to complying with orders of the Court but even a worse sense of responsibility insofar as the safety of the members of the public are concerned and you are now simply a statistic that you will eventually be involved in a fatal accident if you continue to drink and drive and ignore the Court orders in the way that you did.

[5]       In  this  case,  in  my  view,  the  Court  is  bound  to  look  at  issues surrounding  the  safety  of  the  public.     It  is  bound  to  give  careful consideration  to  those  matters  in  the  Sentencing Act  about  the  need  to denounce this ongoing drink drive offending, the need to try and deter you from that type of offending, to hold you accountable for that offending as well.

[6]      The  Judge  indicated  that  the  starting  point  for  the  disqualified  driving offences should be in line with a sentence he had imposed the previous week on a man who had some 28 driving while disqualified convictions and approximately 25 drink drive convictions. The Judge said, in relation to Mr Hakiwai:

[6]       … So the starting point for these further charges of driving while disqualified must on that basis be the maximum.  So it is from that point I have got to decide where we go and insofar as the drink drive charges are concerned your 15, which is excessive, but I am not sure whether I should be starting with a maximum sentence there or not.

[7]      The Judge set the starting point for the excess breath alcohol offence at 18 months imprisonment.  He reduced this by 4 months for the guilty plea.  He set the starting point for the driving while disqualified offences at 2 years imprisonment. He reduced this by 10 months for the guilty pleas and for the driving on 29 August

2011.  That is to say, as earlier described – going backwards down the road to the petrol station.   The Judge had earlier discussed this, at reasonable length, and concluded that the circumstances of the driving on this occasion had to be regarded

as a mitigating factor.   That, with respect,  was probably fairly generous to Mr

Hakiwai.

[8]      The essence of Mr Forster’s submissions in support of the appeal were that the way in which the Judge approached sentencing was erroneous and in any event he failed to assess the totality of the sentence imposed.

[9]      The  first  principal  ground  was  essentially  founded  on  the  approach  to assessment of a sentence as discussed in Taueki.1    In the course of discussing that with Mr Forster he acknowledged that the ultimate consideration is not whether the process may deviate from the ideal but whether the end result can be sustained.  In summarising matters in that way I am not wanting to diminish the force of the submissions made but I do believe it does fairly capture the submissions.

[10]     That leads to what may be described as the primary contention.   There is always a need to assess the totality of the sentence.   In this regard Mr Forster referred to the decision of this Court in  Himiona,2 and in particular at [17], as follows:

[17]     As the cases cited in Tawhara indicate,3  there is good reason why cumulative sentences should be imposed in cases involving excess breath or blood alcohol and disqualified driving.   The Court of Appeal, in R v McQuillan,4   approved  the  practice  of  imposing  cumulative  sentences  to reflect the totality of criminality involved.   Such sentences reflect the difference  in  kind  between  alcohol  impaired  driving  (a  public  safety concern) and driving while disqualified (an administration of justice offence involving deliberate disobedience of a Court order).  The totality principle is then applied to ensure that cumulative sentences do not “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.5

[11]     Mr Forster’s emphasis was understandably on the final sentence in respect of

the totality principle.

1 R v Taueki [2005] 3 NZLR 372; (2005) 21 CRNZ 769

2 Himiona v Police [2012] NZHC 1756.

3 See Collins v Police HC Hamilton AP100/02, 16 December 2002; Hughes v Police HC Invercargill

CRI 2003-425-017, 31 October 2003; Sykes v Police HC Dunedin CRI 2006-412-0004, 15 March

2006; Miles v Police HC Hamilton CRI 2005-419-42, 2 May 2006; Sands v Police HC Christchurch
CRI 2006-409-170, 27 September 2006; and Moon v Police HC Whangarei CRI 2010-488-0007, 9

July 2010.

4 R v McQuillan CA129/04, 12 August 2004.

5 Sentencing Act 2002, s 85(2).

[12]     Mr Forster submitted that the totality principle is vital in different ways, including the fact that any extra time in prison is a long time for the person affected. He submitted that, approaching the matter in this way, the end sentences should have been no more than 2 years imprisonment.

[13]      I can  proceed  directly  to  consideration  of  the  points  on  appeal  without outlining the submissions of Ms Graham for the respondent.   I do not intend any discourtesy in not discussing or outlining those submissions.  I approach it this way because I am satisfied that the appeal should be dismissed.   Mr Forster, as I have already said, responsibly and properly acknowledged that the critical question in terms of process is not whether precise process has been followed, but the end result. Part of the submission in that regard related to the fact that what is described as a starting point may be seen as incorporating the previous offending, whether it was disqualified driving or drink driving.   Of course, with offending of this nature previous offences are, to an extent, part of the offence being dealt with.  Inevitably at some point previous offending is going to be brought into account and there can be no argument that it was in any way inappropriate to bring into account the very substantial number of previous convictions for both types of offending.

[14]     The critical enquiry then becomes whether the end sentence of a total of 2 years and 4 months is manifestly excessive.  I am not persuaded that it is. And to the extent that the Judge may not have expressly referred to totality, it can certainly be done on this appeal.   One critical consideration in this case is public safety.   The Judge emphasised that.  In addition, there are numbers of cases, including decisions of the Court of Appeal, which in my judgment indicate clearly that there was no error by the Judge in the sense of imposing a manifestly excessive sentence.  Some

of these decisions were in fact noted by Heath J in the Himiona judgment.6    Three

decisions of particular relevance are: Hughes – a decision of the Court of Appeal;7

Sykes – a decision of Fogarty J in this Court;8 and Moon – another decision of Heath

J in this Court.9   I will not go into all of the details of those cases.  I will refer briefly to the Hughes case.  This was an appeal against sentences imposed on one charge of

6 Himiona v Police [2012] NZHC 1756.

7 Hughes v R [2012] NZCA 388.
8 Sykes v Police HC Dunedin CRI-2006-412-4, 15 March 2006.

9 Moon v Police HC Whangarei CRI-2010-488-0007, 9 July 2010.

driving with excess breath alcohol and one charge of driving while disqualified.  The charges  related  to  a single instance of driving.   The appellant  had  18  previous convictions for driving with excess breath alcohol and 24 for driving while disqualified.  The District Court Judge imposed cumulative sentences.  He took what was described as a 2 year starting point in respect of each charge on the basis that, as he put it, the offending “clearly tops the scale as it were with your number of offences”.  After various adjustments the Judge arrived at two cumulative terms of

18 months.  An appeal was dismissed by the High Court but leave was granted for appeal to the Court of Appeal on two questions of law.   The first was whether cumulative sentences could be imposed given that both charges related to a single act of driving.   The second was, if cumulative sentences could be imposed, in what circumstances would that be proper?   The Court of Appeal held that the District Court Judge did not err in imposing cumulative sentences.   Cumulative sentences may be imposed for those offences even where they are committed in a single act of driving.   Whether it is appropriate to impose cumulative sentences will be fact dependent.  In the circumstances the Court held the District Court Judge was entitled to take into account the appellant’s recidivism as an aggravating circumstance calling for a deterrent sentence.

[15]     In broad terms, similar conclusions were expressed in the other two cases I

have mentioned.

[16]     Having  regard  to  all  of  these  considerations  I  am  satisfied  that  the  end sentences imposed were not manifestly excessive and I am satisfied, in particular, that the end sentences do not offend the totality principle.

[17]     In consequence, the appeal is dismissed.

Woodhouse J