Kingi v Police
[2012] NZHC 1308
•12 June 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2012-485-27 [2012] NZHC 1308
HARCHAM KINGI
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 5 June 2012
Appearances: M Boyd and S Baigent for the appellant
A Whittaker for the respondent
Judgment: 12 June 2012
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Harcham Kingi, was found guilty by Judge Behrens in the District Court at Porirua after a summary trial on 23 February 2012 of unlawfully taking a motor vehicle (s 266(1) Crimes Act 1961), dangerous driving (s 35(1)(b) Land Transport Act 1998) and driving with excess breath alcohol (s 56(1) Land Transport Act 1998). The Judge sentenced Mr Kingi:
(a) to 80 hours community work and the payment of witness expenses of
$125.00 on the charge of unlawfully taking a motor vehicle;
KINGI v POLICE HC WN CRI-2012-485-27 [12 June 2012]
(b) to disqualification from driving for 12 months and to pay reparation of
$20,650.00 on the charge of dangerous driving; and
(c) to a fine of $800.00 on the charge of excess breath alcohol.
[2] Mr Kingi now appeals his conviction and sentence and all other orders made by the Judge.
Facts
[3] On the evening of 26 June 2011 police were called to a motor vehicle accident at Woodman Drive in Porirua. A Ford car had been driven at speed down the street, had lost control, crossed the footpath, destroyed a fence and come to rest against a house. When the police arrived the two occupants of the car, the appellant Harcham Kingi and Sky Keelan (also known as Sky Moeke to whom I refer as Mr Moeke),were spoken to by the police. Mr Kingi admitted to being the driver. He underwent a breath screening test and, subsequently, an evidential breath test. His breath test gave a result of 782 micrograms of alcohol per litre of breath.
[4] It transpired that the Ford car belonged to Mr Moeke’s aunt and uncle – Mr Bo and Mrs Connie Matahaere – with whom he had been staying that night. Mr Kingi was driving the car without their consent. The car was a write-off. As a result, Mr Kingi faced the charges which ultimately led to his summary trial before Judge Behrens.
[5] At Mr Kingi’s summary trial the police evidence was given by Mrs Matahaere, two local residents who witnessed the incident and Constable Paterson, who had attended on the evening in question and carried out the breath testing procedure on Mr Kingi. Mrs Matahaere was called first and gave evidence as to her and her husband’s joint ownership of the car and that it had been taken on the night in question without their consent. In cross-examination by Ms Boyd for Mr Kingi, Mrs Matahaere also gave evidence that at a family conference she had attended as a result of, and shortly after, the accident, Mr Kingi and Mr Moeke had both said it was Mr Moeke who had been driving, and not Mr Kingi.
[6] Mrs Matahaere shortly after that spoke to the police and said to them she was of the view that it had been Mr Moeke, and not Mr Kingi, who had taken and been driving the car. Ms Boyd subsequently took up that issue with the police. Clearly, that was not sufficient to persuade the police to withdraw the charges against Mr Kingi.
[7] The two local residents who witnessed events were unable to positively identify Mr Kingi in a formal, photo montage, identification procedure that the police organised some time later. There was an unsatisfactory dock identification by one of those local residents at trial. Quite rightly in my view, the Judge placed no weight on that.
[8] Constable Paterson’s evidence was that Mr Kingi had admitted driving the Ford vehicle and that he was going at a speed of 80 to 100 kms before the crash. Mr Kingi said he had taken the key from his aunty and uncle’s house, that his aunty and uncle did not know he even had the car and that he had been drinking earlier that night. Constable Paterson also gave evidence that Mr Moeke said he knew that Mr Kingi had taken the key to the car and that he was not supposed to have the car.
[9] Mr Kingi and Mr Moeke both gave evidence in their defence. Mr Kingi denied being the driver on the evening in question. He said the driver had been Mr Moeke. Mr Moeke gave evidence to the same effect. He said he had taken the car from his uncle and aunty’s – Mr and Mrs Matahaere – where he had been staying. They both said they had agreed that Mr Kingi would take responsibility.
Analysis
Appeal against conviction
[10] In appealing his convictions Mr Kingi says that the Judge “failed to take into account relevant considerations, namely the evidence in respect of the family conference”, and “erred in his assessment of credibility of defence witnesses”. Given that this is an appeal by way of re-hearing, Mr Kingi in effect is arguing is that when I consider all the evidence, including that of Mrs Matahaere as to what she
says was said by Mr Kingi and Mr Moeke at the family conference, I should come to a different view to the Judge on the facts. I should conclude that I cannot be satisfied beyond reasonable doubt, that is I cannot be sure, that Mr Kingi was the driver of the Ford motor vehicle on the evening in question and is therefore guilty of the charges laid against him.
[11] The essential decision I must make is whether to accept Mr Kingi’s acknowledgement of responsibility made to Constable Paterson on the evening in question. There was no denial by Mr Kingi of what he said that evening. Alternatively, am I to accept that was a lie, and that he and Mr Moeke told the truth at the trial, and at the family conference, that it was Mr Moeke who was driving.
[12] I note first that that is essentially a question of credibility. In Austin Nicholls, the Supreme Court acknowledged that trial Courts may have a distinct advantage over appellate courts when it comes to issues of credibility.[1] The trial Court will have seen and heard the witnesses. I think that Judge Behrens clearly had such an advantage in this instance, and therefore I think it is appropriate that I hesitate before reaching a different decision on credibility than he did.
[1] Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103.
[13] Nor do I think the Judge was unmindful of the evidence Mrs Matahaere gave as to what was said at the family conference. During Ms Boyd’s cross-examination of Mrs Matahaere at the summary trial, the Judge cautioned her from proceeding too far, given the favourable evidence that Mrs Matahaere, a Crown witness, had provided to the defence. I think the Judge was well aware of that evidence. Ms Boyd submitted that the following passage indicated that he had taken no
account of it:[2]
Each, that is, Harcham and Sky, have given evidence about a family meeting at which Sky assumed responsibility for the driving, but I have been unable to rely in any way on what was said about the meeting. This is principally because I find the evidence from Constable Paterson is strong enough, without more.
[2] New Zealand Police v Kingi DC Porirua CRI-2011-091-002358, 23 March 2012 at [19].
[14] The suggestion was, as I understood, that the Judge’s use of the words
“without more” meant he had failed to consider that evidence. I do not consider that
to be the case. What I think the Judge is saying is that he had made an essential decision as to the credibility of both Mr Kingi and Mr Moeke when they subsequently said that the latter, rather than the former, had been the driver.
[15] By my assessment of the evidence, the following considerations are relevant:
(a) On the evening in question Mr Kingi said to Constable Paterson that he was the driver, and underwent breath testing accordingly. He signed the Constable’s notebook and the breath testing procedure sheet acknowledging those matters. He then faced charges accordingly.
(b)Mr Moeke also confirmed to the Constable that Mr Kingi had taken the key and was not supposed to have the car.
(c) At no point during that process did Mr Kingi say that Mr Moeke was the driver, or deny responsibility.
[16] Although Mr Moeke was breathalysed at the scene, he did not undergo an evidential breath test when Constable Paterson took Mr Kingi and Mr Moeke to the police station. Rather, Mr Moeke was released from the police station without charge, and faced no consequences – other than, no doubt, within the family context
– from the evening’s events.
[17] In those circumstances, like the Judge I have considerable difficulty with the subsequent explanations provided by Mr Kingi and Mr Moeke. There would not appear to have been any particular reason on the evening in question for Mr Kingi to take responsibility for what Mr Moeke had done. Rather it might be thought that – as Mr Moeke was living with the Matahaeres – the consequences might be less severe than for Mr Kingi who, although known to them, did not live with them or needed to access their house.
[18] I simply do not accept those subsequent explanations as being true. There is then the evidence of Constable Paterson as to Mr Kingi’s admission of responsibility
on the evening in question. I see no reason not to accept that evidence, and therefore decline Mr Kingi’s appeal against conviction.
Appeal against sentence
[19] In appealing his sentence, Mr Kingi says he is an unemployed youth who has no formal training and is not in receipt of a benefit. Therefore the reparation and fines ordered were manifestly excessive.
[20] I deal first with the question of reparation. The Judge acknowledged that Mr Kingi had no ability to pay any reparation at all. He indicated , however, that he was making the order based on the possibility that Mr Kingi might be able to pay reparation in the future.
[21] Payment of reparation is governed by ss 12 and 32 to 38 of the Sentencing
Act 2002. Section 12(1) of the Sentencing Act states:
If a Court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependents of the offender, or that any other special circumstances would make it inappropriate.
[22] There is a long line of authority dealing with the provisions of the Sentencing Act and its predecessor, the Criminal Justice Act, in respect of quantum of reparation.[3] In R v Bailey, the appellant appealed against his sentence of community
[3] See, for example, R v Donaldson & Chapman CA227/06, 2 October 2006 at [43]; R v Creek CA199/06, 17 August 2006 at [12]; R v Brown CA267/92, 26 November 1992 at 5; Morris v Police HC Wellington AP5/99, 3 March 1999 at 4; Hughes v ARCIC HC Hamilton AP17/97, 25
March 1997 at 8-9; Rihari v Department of Social Welfare HC Whangarei AP12/91, 6 September
1991 at 7-8.
work and the reparation order for $17,840.00 at the rate of $20 per week.[4] In respect
[4] R v Bailey CA306/03, 10 May 2004.
of the reparation order, it was conceded by the Crown that a requirement for payments to continue for a period of up to 17 years, as would have been required, was excessive. The judgment of the Court was delivered by O’Regan J. At
paragraph 25 it was stated:
... we accept that the order has to be set at a level which makes it realistic given the financial circumstances of the person against whom it was made. An order which will require 17 years to achieve for [sic] repayment does not fall within that category.
[23] The reparation order was substituted for an order for $3,000, an amount that would take the appellant around three years to pay in full.
[24] I am not satisfied, in the circumstances, that the Judge properly considered the question of whether or not “undue hardship” would result for Mr Kingi because of the order imposed. Nor do I think the order made by the Judge was set at a level which made it realistic given the financial circumstances of Mr Kingi. In my view it is manifestly unreasonable and excessive.
[25] A difficult question to assess, given Mr Kingi’s essentially impecunious means, is whether any order of reparation, or indeed a fine, is realistic. Mr Kingi has no current means himself to meet such orders and – on the evidence before me at the present – little current expectation of obtaining such means. On the other hand, he is young and, at least as I understand it, fit and able to work, even if only on an unskilled basis. I am therefore reluctant to accede to Ms Boyd’s proposition that both orders of reparation, and the fine imposed, should be cancelled and Mr Kingi’s sentence simply be one of community work. Rather, in all the circumstances – including Mr Kingi’s relationship to the Matahaeres – I think as regards reparation for the Ford an appropriate, albeit modest, sum of reparation would be $2,000. I do not see the order for reparation of $400 to the owner of the damaged fence as being inappropriate or excessive, nor the excess breath alcohol fine of $800, nor the order to pay witness expenses.
[26] I therefore allow this appeal to the extent of varying the order for reparation from $20,250.00 to one of $2,000.00, but otherwise decline the appeal against sentence.
“Clifford J”
Solicitors:
Public Defence Service, Wellington for the appellant ([email protected]) Crown Solicitor, Wellington for the respondent ([email protected])
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