Iwikau v Police - [2013] NZHC 2515

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-028 [2013] NZHC 2515

COLE ANDREW OWEN IWIKAU

v

NEW ZEALAND POLICE

Hearing: 25 September 2013

Counsel:

J C Hannam and H Tyree for Appellant
A Britton for Crown

Judgment:

25 September 2013

JUDGMENT OF WILLIAMS J

[1] On 4 June 2013 Mr Iwikau pleaded guilty to one charge of driving while disqualified and one charge of failing to remain stopped. He appeals against Judge AC Roberts’ decision to sentence him to nine months imprisonment.1 He submits that both the starting point adopted by the Judge and the uplift imposed for previous convictions were manifestly excessive.

Circumstances of the offending

[2] Mr Iwikau is 28 years old. He has six previous convictions for driving while disqualified, the first in 2005. At 7.42pm on 24 April 2013, Mr Iwikau was driving on Celia St in Stratford. He states he was the only occupant of the car sober enough to drive. When stopped by Police, Mr Iwikau opened the driver’s door and ran off. He says he ran because he thought he wouldn’t get bail on arrest. He was located
and duly arrested on 1 May 2013.

1 Police v Iwikau DC Hawera CRI-2013-021-000305, 31 July 2013.

IWIKAU v NEW ZEALAND POLICE [2013] NZHC 2515 [25 September 2013]

Judge AC Roberts’ decision

[3] The Judge adopted a starting point of 10 months’ imprisonment. The Judge then imposed an uplift of six months for previous convictions, citing Peterson v Police.2 The Judge then made a deduction of three months to reflect personal mitigating factors (proper adherence to release conditions and volunteering at the kohanga reo his children attend). Finally the Judge deducted four months (or the maximum 25 per cent) for a guilty plea, arriving at an end sentence of nine months. Home detention was not considered appropriate in light of the gravity of the offending. Nor was Mr Iwikau’s address in light of his history of domestic violence.
Mr Iwikau was also disqualified from driving for yet another 12 months.

[4] On the charge of failing to remain stopped, Mr Iwikau was convicted and discharged.

Principles on appeal

[5] This is a first appeal against sentence under s 240 of the Criminal Procedure Act 2011. Accordingly, I must allow the appeal if satisfied that “for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed”.3 The words “an error in the sentence imposed” are a codification of existing case law dealing with appeals from summary proceedings.4

[6] Existing law sets out the factors that make a sentence “manifestly excessive”

and therefore in error:5

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the…

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: [2013] NZHC 2515
Decision Date: 25 September 2013

CaseChat Overview and Summary

In Iwikau v Police, the Court was called upon to review the sentencing of Mr. Cole Andrew Owen Iwikau, who had pleaded guilty to charges of driving while disqualified and failing to remain stopped. Mr. Iwikau appealed the nine-month imprisonment sentence imposed by Judge AC Roberts, arguing that both the starting point and the uplift for previous convictions were excessive. The case was heard on 25 September 2013, with J C Hannam and H Tyree representing the appellant and A Britton representing the Crown.

The legal issues before the Court were whether the starting point of 10 months and the six-month uplift for previous convictions were appropriately determined, and if the overall sentence was manifestly excessive. The Court considered the appropriate starting point for a seventh conviction of driving while disqualified, the permissible uplift for previous convictions, and the applicability of personal mitigating factors and a guilty plea discount. The Court had to balance the need for deterrence and denunciation with the principles of proportionality and individualisation in sentencing.

Williams J determined that while the starting point of 10 months was at the upper end of the allowable range, it was not manifestly excessive given Mr. Iwikau's history of reoffending. The Court found the six-month uplift for previous convictions to be excessive and reduced it to three months. The Court also upheld the three-month discount for personal mitigating factors and the 25 per cent discount for a guilty plea. Consequently, the Court reformulated the sentence to a starting point of 10 months, with an uplift and discount of three months cancelling each other out, and a final guilty plea discount of 25 per cent, resulting in a sentence of seven and a half months’ imprisonment. The Court allowed the appeal and substituted the original sentence with a sentence of seven and a half months.

The final orders of the Court were to quash the original sentence of nine months' imprisonment and to impose a new sentence of seven and a half months' imprisonment for Mr. Iwikau. The Court also maintained the disqualification from driving for a further 12 months.

Orders