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]      Section 250 thus reiterates the approach taken by the courts under the SPA, as articulated in decisions such as Yorston v Police where the Court said: 5

(a)       There  must  be  an  error  vitiating  the  lower  Court’s  original sentencing discretion: the appeal must proceed on an “error principle.”

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[7]      The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Ground of Appeal

[8]      Mr Kauhou’s appeal was initially advanced on the orthodox (if bland) bases that the sentence of imprisonment was manifestly excessive and “wrong in fact and law”.  But at the hearing before me Mr Walsh very properly accepted that it could

not reasonably be said to be “out of range”. Nor did he feel able to take issue with

4      Criminal Procedure Act 2011, s 250(3).

5      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

the imposition of cumulative sentences in the circumstances of this case.  I consider both concessions were properly made.6

[9]      Rather, Mr Walsh based his submissions on two core propositions, namely that:

(a)      contrary to the approach taken in Tua v Police7  the learned District Court Judge had adopted a “numbers based” approach and had failed properly to take into account Mr Kauhou’s personal circumstances, which militated in favour of a non-custodial sentence.    The circumstances relied upon were that he had recently obtained employment and that, although he had continued to drive while disqualified over the last five years or so, that offending was not as “aggravated” as it had been previously (when he had not only driven while disqualified but also in a dangerous manner);

(b)in light of the decision in Police v Body,8 the Court could (and should) have imposed a community based sentence in an attempt to the “break the cycle” of Mr Kauhou’s offending.

Discussion

[10]     Notwithstanding Mr Walsh’s valiant efforts on Mr Kauhou’s behalf I consider that the appeal must fail.

6In terms of “range”, there is no tariff for offending of this kind and sentences can vary between discharge without conviction to terms of imprisonment.  But as Woodhouse J noted in Tua v Police [2013] NZHC 2994 (at [15]):

By reference to other sentences imposed for this number of offences of disqualified driving, with the number of previous offences being part of the offence for which the sentence is imposed, it may be said that the starting point of 18 months is not out of range: Hume, Morgan, Hughes, Gutsell,

Peterson, Hakiwai, and Koopu. [footnotes and citations omitted]

I refer also to Drinkwater v Police [2013] NZHC 1036 and Rissetto v Police [2013] NZHC

1633.    In  light  of  those  cases,  and  as  far  as  the  imposition of  cumulative sentences is concerned, I do not consider I need to express a view.  As the Court of Appeal said in Ripia v R [2011] NZCA 101 at [15]:

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

7      Tua v Police [2013] NZHC 2994.

8      Police v Body [2013] NZHC 1586.

[11]     As far as Mr Walsh’s reliance on Tua is concerned, in that case Woodhouse J

was prepared to substitute a sentence of community work in place of a sentence of

15 months imprisonment imposed for Mr Tua’s 18th  conviction for driving while disqualified.   He did so largely on the basis of his assessment that the sentencing Judge had failed to consider the offender’s personal circumstances and in particular his  assessment  that  Mr Tua’s  offending was  diminishing and  that  he had  taken positive steps to change his life.

[12]     But in the present case, it is clear from Judge Connell’s sentencing notes that

he did consider and take into account such matters.  He said:9

[4]       As I say to you I might have given you a bit of a chance if it had been one [offence of driving while disqualified].  I cannot really when you have so soon after the May offence when you have been on bail or remanded at large for that, you have then gone and committed the offence again and that is a bit of a struggle and it makes things very difficult to consider what your counsel has asked for.   He says that you should serve a sentence of home detention.  He puts that on the basis that things have changed for you in life a bit.  You are trying to be a bit steadier about the way you live and again, I will give you some credit for that, but it does not really reflect in the way these two charges have come to Court.  He says home detention to give you the chance to stay out of jail and perhaps get on with your life in a better way, but again when I look at your ability to comply with a sentence of home detention, you know that, one, there are 21 breaches of community- based sentences on your record.   Two, there are four breaches of home detention in 2011 and 2012 and I note there is two breaches of the post detention conditions after that again.   That just says to the Court and it is the only way I have got at telling you that you may be someone who just simply cannot comply with that sentence of home detention. ...

[13]     And  while  the  decision  in  Body  was  concerned  with  the  desirability  of “breaking the cycle” of recidivist disqualified drivers it was specifically focused on the operation of the power under s 94 of the Land Transport Act to substitute a community based sentence in cases where an order for disqualification is otherwise mandatory.  Mr Kauhou has not appealed the disqualification aspect of his sentence, and neither s 94 nor the decision in Body appear to me to be of any assistance.

[14]     So as I have said, Mr Walsh accepted that the end sentence imposed on Mr

Kauhou was within range.  And in my view there is no basis for contending that, in exercising his sentencing discretion against imposing a non-custodial sentence, the

9 At [4].

Judge  erred  by  applying  an  incorrect  principle,  giving  insufficient  or  excessive weight  to  a  particular  factor,  or  was  plainly  wrong.  The  appeal  is  dismissed

accordingly.

Rebecca Ellis J