Kahuroa v Police HC Invercargill CRI 2010-425-43

[2010] NZHC 2317

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-425-43

BETWEEN  RAYMOND HOHEPA KAHUROA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 December 2010

Counsel:         R Smith (on instructions from S Vidal) for Appellant

S McKenzie for Respondent

Judgment:      13 December 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr  Kahuroa  appeals  against  his  sentence  on  charges  of  driving  whilst suspended and common assault.

[2]      There were several distinct incidents.  He was suspended from driving until

26 June 2010.  On 15 May he was found driving in Mataura, and explained that he was just on his way home from a friend’s address.

[3]      On 22 May he visited one of his sons at the son’s address in Invercargill, and a disagreement ensued about money payable for a vehicle which the son had sold to Mr Kahuroa.  Mr Kahuroa swung a punch at his son, who was aged 22, but missed. The son struck back, but Mr Kahuroa managed to get hold of him, throwing him to the ground where he sat upon him and forced his fist into his face, holding his son’s head hard against the ground.  That resulted in a front tooth being broken off at the base.  Mr Kahuroa then drove away.  He denied being in a dispute with his son but

admitted having driven to the property contrary to his suspension.

RAYMOND HOHEPA KAHUROA V NEW ZEALAND POLICE HC INV CRI 2010-425-43  13 December

2010

[4]      On 28 May he was again found driving, this time he was picked up because the tail lights in the car were not working.  He explained that he was just looking for his children.

[5]      At 51, he has a small list of convictions but they include contravention of a protection order, assault of a domestic nature, burglary, theft, and driving while disqualified for which he has two previous convictions.

[6]      The Judge understandably found this offending disturbing, particularly in light of the probation report.   It recorded that he was not willing to consider an electronically monitored sentence and denied the assault.  He claimed that any order of disqualification should allow him to drive to help his children.  And he was quite without remorse.  He has some outstanding fines none of which are being paid off. Understandably  the  Judge  expressed  the  opinion  that  Mr  Kahuroa  will  keep offending and that led him to the conclusion that imprisonment must follow.

[7]      The Judge adopted a starting point for the offending in its totality of six months imprisonment.  (I note that the maximum for each of the offences of driving while suspended was three months imprisonment or a $4,500 fine with a mandatory six months disqualification, and the maximum sentence for the assault was one year’s imprisonment.)

[8]      The Judge accordingly sentenced him to two months imprisonment for the assault, giving him leave to apply for home detention and imposing the standard release conditions for six months from sentence expiry date and a special release condition (for the same period) that Mr Kahuroa attend a Stopping Violence Programme.   It appears that when granting leave to apply for home detention the Judge had in mind an application to the District Court for cancellation of imprisonment and substitution of home detention should the offender find a suitable

residence at a later date.[1]

[1] Section 80I Sentencing Act 2002.

[9]      With respect to the driving while suspended matters, the Judge imposed a sentence of two months imprisonment for the 15 May offence cumulative on the

assault sentence.  Leave was given to apply for home detention, and the same release conditions were imposed.

[10]     On the three driving charges, Mr Kahuroa was disqualified for six months.

[11]     Sentence was passed on 24 September, and Mr Kahuroa did not appeal until

9 November.  He has now served his prison term, but the release conditions do not expire until May.   The appeal is accordingly directed to the conditions, which he challenges  by  way  of  attacking  the  decision  to  sentence  him  to  imprisonment. Mr Smith, who appeared for Ms Vidal today, contends that the sentence was plainly excessive  given  the  minor  nature  of  the  offending  and  Mr  Kahuroa’s  limited previous history.  Counsel has found no case in which imprisonment was imposed for  driving while suspended,  except  where it  was  associated  with  more serious offending.  Mr Kahuroa had never been sentenced to imprisonment.  He explains in an affidavit that his relevant convictions are few and old or, in the case of the two assaults and contraventions of a protection order, attributable to a relationship breakdown.  The latter claim cannot be correct, since these offences were committed in 2000, 2001, 2005 and 2009.

[12]     I have no doubt that the Judge was correct to imprison Mr Kahuroa.  It is true that that sentence would not ordinarily follow from this sort of offending, but it was available and Mr Kahuroa left the Judge few options.   He persisted in the driving offences despite being apprehended, and it was clear that Mr Kahuroa means to keep driving  whenever  it  suits  him,  and  certainly  whenever  he  experiences  what  he regards as a need to do so.  The assault was a nasty one.  To impose a fine would have been an empty gesture, and there was no reason to suppose that Mr Kahuroa would  comply  with  any other  community-based  sentence  either.    His  record  is actually reasonably substantial, including a number of convictions for offences of dishonesty, and he has received suspended terms of imprisonment.

[13]     There is, however, a difficulty with the sentencing.  On the face of it, he was subject to a minimum term of disqualification of 12 months rather than the six that the  Judge  imposed,  because  of  his  two  previous  convictions  for  driving  while

disqualified.[2]   Presumably anticipating this, he explains in his affidavit that he knows nothing of one of the convictions.  He notes that both were entered on the same day,

20 February 1980, raising the possibility of some administrative error.  I observe that the offences were two days apart, but in the circumstances I will deal with the appeal on the basis that only one conviction has been proved.

[2] Section 32(1) and (4) Land Transport Act 1998.

[14]     Leave is required because the appeal was filed out of time.  Leave is granted, but the appeal is dismissed.

Miller J

Solicitors:

Southern Law, Invercargill for Appellant

Preston Russell Law, Invercargill for Respondent