Kimura v Police

[2024] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-000032

[2024] NZHC 3032

BETWEEN

PEYOTE KIMURA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 October 2024

Counsel:

K M Pedder for Appellant

J P Field-Turner for Respondent

Judgment:

17 October 2024

JUDGMENT OF RADICH J

[1]    Peyote Kimura has been convicted on one charge each of receiving a stolen vehicle,1 reckless damage of property,2 driving while disqualified,3 failing to stop for the police,4 dangerous driving,5 and breach of release conditions.6 On 22 August 2024, he was sentenced by Judge Northwood to two years and four and a half months’ imprisonment.7

[2]    Mr Kimura appeals from that sentencing decision on the basis the Judge erred by declining to reduce the starting point to account for totality and by declining to grant a credit for remorse. The Crown opposes the appeal in part. It accepts the Judge

1      Crimes Act 1961, s 246; maximum penalty seven years’ imprisonment.

2      Section 269(2)(a); maximum penalty seven years’ imprisonment.

3      Land Transport Act 1998, s 32(1)(a); maximum penalty three months’ imprisonment.

4      Sections 52A(1)(a)(ii), (5) and (6); maximum penalty three months’ imprisonment.

5      Section 35(1)(b); maximum penalty three months’ imprisonment.

6      Sentencing Act 2002, s 96; maximum penalty one year’s imprisonment.

7      Police v Kimura [2024] NZDC 20153 [Sentencing decision].

KIMURA v NEW ZEALAND POLICE [2024] NZHC 3032 [17 October 2024]

needed to adopt a lower starting point to account for totality but does not accept the Judge erred by declining to grant a credit for remorse.

[3]    I will allow the appeal on the basis the starting point adopted was too high and the resulting sentence was manifestly excessive. I do not see that the Judge erred in declining to grant a credit for remorse.

[4]A sentence of imprisonment of two years will apply.

Background

[5]    On 18 December 2023, the police found Mr Kimura driving a vehicle which had been stolen overnight between 14 and 15 December. Mr Kimura drove away immediately despite the police activating lights and sirens. He drove down the wrong side of the road at 30 kilometres per hour over the speed limit (causing other cars to take evasive action to get out of the way) and he drove through red lights. When police caught up with him, they tried to use a tyre deflation device to prevent him from continuing to drive. Mr Kimura evaded that attempt and in doing so lost control of the car, crashed through a fence and into a garage. He then ran away on foot as the car and the garage caught fire.

[6]    As a result of the fire, significant structural damage was caused to the garage and property inside it was destroyed. One of the victims of the offending, the owner of the house, wrote a victim impact statement that explained the financial and sentimental impact the fire had on him and his family.

[7]    Mr Kimura had been disqualified from driving for six months from 6 July 2023. And he had been released from prison for other offending – which had included receiving stolen property and breaching release conditions – only 13 days prior. When released, Mr Kimura lived in a transient way and, within six days of his release, he had breached release conditions, which had included steps to help with his methamphetamine addiction. He was, sadly, under the influence of methamphetamine at the time of his offending.

Sentencing decision

[8]    The Judge took a global starting point of three years’ imprisonment. He reached the starting point by taking 18 months for the lead charge of reckless driving, nine months for the charge of receiving a stolen vehicle and six months for the remaining traffic charges of failing to stop, driving while disqualified and dangerous driving.8 He considered that this provisional starting point of two years and nine months’ imprisonment did not need to be adjusted for totality.9 The Judge then went on to make a minor error in favour of Mr Kimura: he added on what he said was six months for the charge of breaching release conditions to reach a global starting point of three years’ imprisonment.10 Had the Judge added six months to the provisional starting point of two years and nine months’ imprisonment, he would have reached a starting point of three years and three months’ imprisonment. For the purposes of this appeal, the error can be viewed either as the Judge adding an uplift of three, rather than six, months for the charge of breaching release conditions, or as an adjustment for totality.

[9]    The Judge then uplifted the starting point by ten per cent to account for Mr Kimura’s criminal history, which includes frequent convictions since 2011 for theft, burglary, receiving, traffic offending, methamphetamine-related offending and convictions for breaching court orders and sentences.11 He gave a credit of 20 per cent for Mr Kimura’s guilty plea, which he said was entered early, six months after charges were filed. It was not entered, the Judge observed, at the earliest opportunity because previously Mr Kimura had entered a not guilty plea.12 He then gave a credit of 10 per cent to account for Mr Kimura’s personal background, being satisfied that his difficult upbringing in state care and addiction to methamphetamine had been drivers of his offending.13

[10]   The Judge declined to grant a credit for remorse and rehabilitative prospects, saying:

8      At [16]–[17].

9 At [17].

10 At [18].

11     At [19] and see [10].

12 At [20].

13     At [21] and see [11] and [12].

[22] So then what do I do about expressions of remorse and your rehabilitative prospects.  I have read the letter you wrote, but we are past writing letters  Mr Kimura. What is in my mind is that you slammed the door shut on help as soon as it was offered to you. Writing letters does not work anymore. More is needed than a letter and claims of wanting help to do better. It is now time for commitment and action by you, not just slipping immediately back into old ways. I cannot reduce the sentence any further.

[11]   The Judge disqualified Mr Kimura from driving for six months and ordered that he pay reparation of $700. He remitted the fines of $659.42 owing in relation to the charges.

Legal approach to sentence appeals

[12]   In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.14 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.15 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.16 The court will not generally intervene unless a sentence is manifestly excessive17 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.18

Discussion

[13]   On appeal, Mr Kimura only challenges the starting point taken by the Judge and his refusal to award a credit for remorse. He does not challenge the uplift imposed, the 20 per cent credit for his guilty plea or the ten per cent credit given for his background factors.

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

15 At [30].

16 At [30].

17 At [35].

18     At [30]–[36].

Starting point

[14]   Mr Pedder submits that the Judge should have assessed totality again, after adding the uplift for the charge of breaching release conditions, and deducted 15 per cent from the starting point reached. That would amount to a deduction of around six months, and result in a starting point of two years and six months’ imprisonment.

[15]   The Crown accepts that a totality adjustment should have been applied in setting the starting point. Ms Field-Turner submits that, in setting the provisional starting point, the uplifts were too high. She points to a case that, it is said, involved more serious offending but resulted in a starting point of two years and six months’ imprisonment: Fortune v Police.19 In comparison with that case, the Crown says the Judge should have reached a starting point of between two years and three months’ and two years and six months’ imprisonment.

[16]   The issue turns on the application of the totality principle as set out in s 85 of the Sentencing Act 2002. Where there are multiple offences, the individual sentences must reflect the seriousness of each offence. If cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[17]   I accept that the Judge erred in setting the starting point. In comparison with other cases, the uplifts imposed by the Judge for the miscellaneous traffic offences and for the charge of breaching release conditions were high. I address this briefly because, as I come on to explain, I see that the starting point was too high by reference to the totality principle.

[18]   There is no issue taken with the initial starting point set for the lead charge of reckless damage.20 However, the uplift for driving a stolen vehicle should have been

19 Fortune v New Zealand Police [2019] NZHC 3500.

20 In Ormandy v New Zealand Police [2021] NZHC 3298, a starting point of 18 months was seen as appropriate for intentional damage where the appellant had broken out of his prison cell and damaged two cameras. By comparison, Mr Kimura’s actions were reckless, not intentional, but resulted in much greater damage to private property and endangered the residents of the home affected.

no more than eight months,21 the uplift for the other traffic offences should have been no more than four months,22 and the uplift for breach of release conditions should have been no more than three months.23 Taking those together, a maximum starting point of two years and eight months is reached, before adjusting for totality is reached. And I do see that a further adjustment of two months for totality is needed, by reference to the starting point taken in Fortune v Police which I now come on to discuss.

[19]   In Fortune, the defendant fled a routine traffic stop and was engaged in a pursuit with police for over an hour. He drove over 70 kilometres per hour over the speed limit and swerved into the right hand side of the road numerous times. He rammed into two police vehicles before ultimately being stopped by road spikes. The High Court upheld a starting point of two years and six months’ imprisonment, with intentional damage as the lead charge and accounting for charges of driving while disqualified, dangerous driving and failing to stop and remain stopped.

[20]   I accept the Crown’s submission that Fortune v Police involved similar offending, but I do not agree that it is more serious than the offending here. Both involved serious damage to property. In Fortune, that damage was intentional. Here, it was reckless but resulted in greater harm, with structural damage to someone’s home and destruction of their property. The driving itself in Fortune is in some ways more serious than Mr Kimura’s: the chase took place over a longer period of time and the defendant was driving more quickly and therefore more dangerously. Here, however, Mr Kimura was driving a stolen vehicle, a charge which carries a maximum penalty

21 In Taylor v New Zealand Police [2024] NZHC 2880 at [34]–[36], the maximum appropriate uplift for a charge of receiving a stolen vehicle was assessed in the context of otherwise dangerous driving charges as being eight months, having regard to other receiving cases. See also Higgan v New Zealand Police [2021] NZHC 188.

22 The Crown has suggested the highest available uplift was three months, citing Gifkins v New Zealand Police [2017] NZHC 1399 and Martin v New Zealand Police [2022] NZHC 856. Gifkins was, however, less serious. In that case, a three-month uplift was seen as within the available range and there was no driving while disqualified – a charge that carries a maximum penalty of three months’ imprisonment. Martin was more similar. There, a four-month uplift was seen as the highest available in relation to dangerous driving while disqualified. There, the Judge took into account the appellant’s history in setting that uplift. Here, that would not be appropriate because the Judge imposed an uplift for Mr Kimura’s criminal history – it would be double counting. However, in that case the failing to stop charges in that case only had fines available as the maximum penalty, whereas in the present case the maximum penalty is three months’ imprisonment. Overall they involve offending of similar gravity.

23    The Crown has cited Taylor v R [2021] NZCA 606 at [44], where a two-month uplift for breach of release conditions was seen as appropriate; and Prattley v New Zealand Police [2014] NZHC 486, where a three-month uplift for breach of release conditions was seen as appropriate.

of seven years’ imprisonment, which was also damaged by the fire. The overall circumstances are of roughly equal seriousness.

[21]   Given the similarities, a starting point higher than two years and six months is wholly out of proportion to the gravity of the offending. Accordingly, I am drawn to conclude that the Judge erred in setting the starting point at three years’ imprisonment.

Remorse

[22]   Mr Pedder submits that Mr Kimura has expressed remorse that demands a minimum credit of five per cent. He points to a letter of apology written by Mr Kimura to the Judge. The Crown submits that the remorse expressed by Mr Kimura is surface level in nature and that no credit for it is required. It refers to Mr Kimura having offended again only 13 days after having been released for a previous sentence of imprisonment, to his history of offending, and to his letter not seeming to reflect the gravity of his continued offending or the level of damage he has caused to the victims of the offending.

[23]   Where a defendant demonstrates genuine remorse, assessed by a proper and robust evaluation of all of the circumstances, a sentencing Judge should grant a credit that is separate from a credit given for a guilty plea.24 Whether remorse is genuine is a question of fact and judgment. The defendant bears the onus of satisfying the Judge their remorse is genuine, although remorse need not be extraordinary to justify a credit.25

[24]   I agree with the Crown that Mr Kimura’s expression of remorse is superficial. His letter does not identify the harm he has caused to others through his actions and does not acknowledge his history of similar offending. That same history and the breach of release conditions, which led to the present offending, does make it difficult to accept that the remorse that Mr Kimura has expressed was genuine. As the Judge said: 26

24     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

25 At [22].

26     Sentencing decision, above n 7.

[4] The best the criminal justice system could do would be to offer you release conditions that might steer you that way. But you did not lift a finger to go down that path, you did not even come close to it. The door stood open for you to walk through, and you did not do it. And the reason I say that is, six days after you were released from prison you were never seen again by a probation officer, which is extraordinarily sad.

[25]   Similarly, while Mr Kimura undertook some courses while in prison and has expressed to a probation officer a willingness to engage in rehabilitation for methamphetamine addiction, his expressions must be balanced against his refusal to engage with the measures designed to aid in his addiction that were part of his release conditions. His prior expressions of willingness to rehabilitate have, sadly, not resulted in any real change.

[26]   Mr Pedder has referred to cases in which credit has been given for what he terms “largely bare” expressions of genuine remorse. I do not see the cases as comparable. In Poi v R, the Court of Appeal held a credit of five per cent to have been appropriate for a defendant who had expressed regret and willingness to participate in a restorative justice conference, although a conference did not occur. In Poi, unlike here where Mr Kimura has a history of similar convictions occurring frequently in his criminal history, the defendant was found to have been of previous good character. In Rowles v R, the Court of Appeal awarded an eight per cent credit for remorse for a “significant” effort by the defendant to show his remorse in a tangible way.27 The defendant in that case had written a letter to the victim’s family, offered to participate in restorative justice, and offered $1,000 cash in reparation. Mr Kimura has made no such effort here.

[27]   I do not see the Judge as having erred in declining to give a credit for remorse. He was entitled to find that Mr Kimura was not genuinely remorseful.

Conclusion

[28]   In my view, the Judge erred in setting the starting point at three years’ imprisonment. I see two years and six months’ imprisonment as being at the top of the available range, accounting for the totality of Mr Kimura’s conduct. That starting

27     Rowles v R [2016] NZCA 208 at [18].

point, when the uplifts and credits not in dispute are applied, is a sentence of two years’ imprisonment.

[29]   In those circumstances, the end sentence used of two years and four and a half months’ imprisonment is manifestly excessive. Adjusting it on appeal would not amount to tinkering.

[30]I allow the appeal and impose a sentence of two years’ imprisonment.

Radich J

Solicitors:

Pedder Law, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent