Kauhou v Police - [2014] NZHC 140

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-49 [2014] NZHC 140

BETWEEN JOSEPH TAWERA KAUHOU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 11 February 2014

Appearances: G A Walsh for the Appellant
J E Tarrant for the Respondent

Judgment: 13 February 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Thursday 13 February 2014 at 11.45 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
G A Walsh, Barrister, Hamilton
J E Tarrant, Almao Douch, Hamilton

KAUHOU v NEW ZEALAND POLICE [2014] NZHC 140 [13 February 2014]

[1] Mr Kauhou appeals the sentence of 20 months imprisonment imposed on him on 26 August 2013 for his 18th and 19th convictions for driving while disqualified.1
The dates of the relevant offending were 22 May and 20 July 2013 respectively. On the first occasion Mr Kauhou also gave the Police a false name.2

[2] In sentencing Mr Kauhou to imprisonment, Judge Connell said he was unable to consider a sentence of home detention due to Mr Kauhou’s poor history of compliance with home detention and other similar sentences in the past.3 The 20 month sentence of imprisonment was made up as follows:

(a) On the 18th charge of driving while disqualified there was a starting point of 10 months;

(b) Those 10 months were uplifted by four months to take account of Mr

Kauhou’s previous convictions;

(c) There was a four month discount for Mr Kauhou’s guilty plea, giving

an end sentence on that charge of 10 months;

(d)On the 19th charge of driving while disqualified the Judge gave a starting point of 16 months;

(e) Those 16 months were uplifted by two months for previous convictions;

(f) There was a four month discount for guilty plea and a further discount of two months for totality; and

(g) This resulted in another sentence of 10 months imprisonment.

[3] The two sentences of 10 months imprisonment were imposed cumulatively. Mr Kauhou was also further disqualified from driving for a further 20 months.

1      Ms Tarrant for the Crown advised that in fact these were Mr Kauhou’s 20th and 21st driving while disqualified convictions.
2      There was a separate charge relating to this but it is not material for present purposes.
3      Police v Kauhou DC Hamilton CRI 2013-019-002880, 26 August 2013.

Appeals against sentence

[4] By virtue of the timing of the two disqualified driving offences this appeal spans both the Summary Proceedings Act 1957 (the SPA) and the Criminal Procedure Act 2011 (the CPA). There is, however, no material difference between the two statutes in terms of the approach that this Court must take to appeals against sentence. Section 250 of the CPA states that a first appeal must be allowed if the Court 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.

[5] In any other case, the Court is required to dismiss the appeal.4

[6]…

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: [2014] NZHC 140
Decision Date: 13 February 2014

CaseChat Overview and Summary

Joseph Tawera Kauhou sought to appeal the sentence of 20 months imprisonment imposed on him for two convictions of driving while disqualified. The appeal spans both the Summary Proceedings Act 1957 and the Criminal Procedure Act 2011. The legal issues involved whether there was an error in the sentence imposed by the lower Court, and if so, whether a different sentence should be imposed. The key points of contention were whether the District Court Judge had adopted a "numbers based" approach, failed to consider Mr Kauhou's personal circumstances, and whether the Court should have imposed a community-based sentence to "break the cycle" of Mr Kauhou’s offending.

The Court held that the appeal must fail. The sentence imposed was within range, and the Judge had considered and taken into account Mr Kauhou's personal circumstances. The Court did not find an error in the Judge’s exercise of sentencing discretion, nor was there any basis for contending that the Judge erred by applying an incorrect principle, giving insufficient or excessive weight to a particular factor, or was plainly wrong. The appeal was dismissed accordingly.

Orders