Kingi v Police HC Ak CRI 2009-404-399

[2010] NZHC 125

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2009-404-399

HENARE KINGI

Appellant

v

POLICE

Respondent

Hearing:         9 February 2010

Appearances:  M Jenkins for appellant

F J Cuncannon for respondent

Judgment:      19 February 2010

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment

with the delivery time of 3.45 pm on Friday 19 February 2010

Solicitors:

M Jenkins PO Box 938, Pukekohe 2340

Crown Solicitor Auckland

KINGI V POLICE HC AK CRI-2009-404-399  19 February 2010

[1]      Mr Kingi appeals against  a  sentence  of  12  months  imprisonment  imposed

upon him in the Pukekohe  District  Court  on  23 November  2009  by Judge  Andrėe

Wiltens on two charges  of  driving while  disqualified.   They were  respectively the

11th  and 12th  such charges on which the appellant has been convicted.

Factual background

[2]      At about 4.30 pm  on Sunday 19 July 2009,  the  appellant was apprehended while driving his Mazda motor vehicle on George Street Tuakau.  At the time he was

a  disqualified  driver.  He  explained  to  the  police  officer  that  he  was  simply repositioning his car by taking it home, in order that he might sell it the next day.

[3]      At about 5 pm on Saturday 1 August 2009, just two weeks later, the appellant was stopped by a police officer when driving a Holden motor vehicle along Jellicoe Avenue,  Tuakau.        He  explained  on  that  occasion  that  he  was  driving  the  vehicle because he was towing a trailer and his wife was not comfortable reversing a car to which a trailer was attached.

[4]      The  second  of  these  offences  was  called  in  Court  first. At  a  subsequent appearance  on  16  September  2009,  both  charges  were  called  (this  being  the appellant’s first appearance on the 19 July charge).  On that date pleas of guilty were entered on each charge.

The appellant’s background

[5]      Mr  Kingi’s  history  is,  to  say  the  least,  mixed.   He  is  34  years  old,  and  of Maori descent.  The discovery at the age of about 13 that he was adopted within his whanau led to unsettled teenage years, characterised by a criminal lifestyle involving drugs  and  prostitutes. His  criminal  record  runs  to  some  12  pages. There  are numerous  offences  involving  violence,  a  number  of  drug  convictions,  and  a  great deal of dishonest offending.  But the list tends to be dominated by driving offences,

including offences indicative of an inability or unwillingness to comply with orders

of the Court.

[6]      Mr Kingi’s offending commenced in 1993.   His first conviction for driving whilst  disqualified  occurred  in  2004.           In  February  2006  he  was  sentenced  on  a variety of charges, including a number of charges of driving while disqualified.  On that  occasion  terms  of  imprisonment  were  imposed  in  respect  of  the  disqualified driving  charges  (concurrent  with  sentences  imposed  for  other  offences),  but  it appears  that  on  one  such  charge  there  was  a  cumulative  sentence  of  one  years imprisonment.

[7]      There is some evidence that over the last two years or so the appellant has made determined efforts to change his lifestyle for the better. He has turned away from his old associates and endeavoured to make an honest living. He has formed a relationship with a lady who provides a significant amount of stability in his life, and

by whom he is expecting a child.  But even then there are convictions for disorderly behaviour in May 2008, and for operating a motor vehicle causing sustained loss of traction in May 2009. For the latter offence he was  sentenced  to  40  hours community work and disqualified from driving.  At the time of the present offending he was in breach of his community work sentence.  He explains through his counsel that he was greatly distracted at the time by the loss of his parents, and it is common ground that the appellant subsequently made arrangements to resume his community work sentence.

District Court sentencing

[8]      Judge Andrėe Wiltens imposed sentence in a busy list Court.  His sentencing approach  is  accurately  captured  by  reference  to  the  following  extracts  from  his sentencing notes.  Having observed that the appeal was for sentence on his 11th  and 12th  charges for disqualified driving, the Judge said:

[2]      Back in 2005 you were sentenced to imprisonment for that offence. Nothing has changed. You continue to do it.   It seems to me that the only thing I can do is to forget about your personal circumstances and think about protecting members of the public, and that is what I have to put at foremost

in  my  thinking.  The  maximum  sentence for  these  offences  is  two  years

imprisonment each.   Your driving record is truly appalling.   You have got reckless use of a motor vehicle twice, you have  driving while your licence is suspended,  unlicensed  driving,  failing  to  stop  numerous  times  for  police officer’s lights and sirens, and to ascertain whether or not you have caused injury  after  an  accident  plus  all  of  these  driving  while  disqualified.   The driving  whilst  disqualified  are  bad  because  they  occurred  in  2004,  2005, 2008 and now these two.

[3]      At  the  time  you  were  in  breach  of  a  current  order  of  community work,   which   is   also   an   aggravating   factor.       The   pre-sentence   report comments  that  you  are  at  a  high  risk  of  re-offending,  and  that  you  are  a recidivist offender, one who just keeps on going. …

[4]      It  is  inevitable  that  I  have  to  imprison  you  today.   As  I  say  your personal  circumstances  are  secondary  to  protecting  the  interests  of  our community.  You need to become law abiding.  Because of your guilty pleas I can reduce what would have been something like 16 months imprisonment and I have to bear in mind that there are two charges, two weeks apart, and come  to  an  end  sentence  for  you.   With  your  previous  background  I  am afraid it is a long term I have to impose.   The actual term of imprisonment will be 12 months as from today concurrently on both charges.  That to me is the least restrictive outcome that I can arrive at for you.

Appellant’s submissions

[9]      Ms Jenkins for the appellant, argues that the sentencing process miscarried to some degree, in that the Judge entirely neglected to consider aspects of the offending itself  and  of  the  offender.           In such circumstances,  she says, this Court  should approach the sentencing exercise afresh: R v Finau (2003) 20 CRNZ 333 (CA) at

337, M v Police HC Auckland CRI-2004-404-440, 10 December 2004 at [45].

[10]     There is a degree of substance in Ms Jenkins’ submission. Perhaps understandably the  Judge  has  given  primary attention  to  the  appellant’s  very poor record, and to his recidivist tendencies. Obviously, those were very  important features of the sentencing process in this case. To that extent the Judge was entitled

to  refer  to  the  need  to  protect  the  public  from  persons  such  as  the  appellant,  who appear unable or unwilling to comply with orders of the Court.  But it was not right simply to put to one side the personal  circumstances of  the  appellant.   Sentencing Judges must adhere to the approach laid down in R v Taueki [2005] 3 NZLR 372.

[11]     Having said that, I accept Ms Cuncannon’s submission to the effect that this case does not suffer from the significant defects identified by Duffy J in Peterson v

Police HC Hamilton CRI-2009-419-11, 20 February 2009, where there appeared to have  been  no  identification  of  an  appropriate  starting  point  nor  any  indication  of aggravating or mitigating factors.

[12]     Here  the  Judge  did  fix  a  starting  point  of  16  months  imprisonment  and allowed  a  25%  discount,  expressly  identified  as  representing  the  least  restrictive outcome the Judge considered to be available.   He has therefore made a significant allowance   for   mitigating   factors;  although   they   have   not   been   individually identified, the early guilty pleas were plainly the most important among them.

[13]     Ms  Jenkins  contends,  nevertheless,  that  the  Judge  must  be  taken  to  have accorded   insufficient   weight   to   the   consideration   that   the   appellant’s   recent behaviour has been largely offence-free.   As  I apprehend  her  argument it is really this point which lies at the heart of the appeal.

The respondent’s submissions

[14]     Ms Cuncannon submits that both the starting point and the end sentence were well within range for this recidivist offender.  She has referred the Court to a number

of helpful sentencing authorities:

a)        Peterson  v  Police:  sixth offence of driving  while  disqualified  -  13

months imprisonment.

b)Te Haara v Police HC Auckland CRI-2004-404-370, 5 October 2004: eighth offence of driving while disqualified – nine months imprisonment;

c)        Toby v Police HC  Auckland  CRI  2005-404-175,  21  October  2005:

23rd  offence of driving while disqualified – 21 months imprisonment;

d)       Platt v Police HC Christchurch A46/00, 23 March 2000:  fifth offence

of driving while disqualified – five months imprisonment;

e)        Maeva v Police HC Auckland AP83/99, 27 July 1999:  13th  offence of driving while disqualified – 18 months imprisonment;

f)        Eraio v Police HC Auckland CRI-2007-404-052, 5 June 2007   third offence of driving while disqualified – 15 months imprisonment.

Discussion

[15]     To  some  degree  the  Court  is  hampered  by  reason  of  the  Judge’s  limited sentencing  notes,  but  that  is  understandable  given  the  pressures  under  which sentencing Judges operate in the District Court.

[16]     I  accept  that  the  appellant  is  entitled  to  have  his  recent  record  taken  into account, but it is the whole of the record which must be considered, not merely the latter  portion  of  it  which  makes  slightly  better  reading.   Even  in  recent  times  the appellant  has  not  been  able  to  avoid  offending  entirely. I  accept  that  these  two offences  did  not  occur  in  the  context  of  other  driving  offences,  so  there  are  no aggravating factors in that sense.   But this was a man with a previous record which the Judge properly described as “appalling”.   If he truly wished to embark upon an offence-free lifestyle, then one would expect that he would take the greatest care to ensure that offences of this sort simply did not occur.   Yet, on the first occasion he chose  to  drive  his  vehicle  while  disqualified  because  he  wished  to  reposition  it  in order to sell it.  So his reasons were associated with personal convenience.  The same explanation  attends  the  second  offence,  where  he  chose  to  drive  because  his  wife preferred  not  to  drive  a  vehicle  that  was  towing  a  trailer. Again,  his  personal preference overcame the requirements of the law.

[17]     Moreover, the second offence occurred just two weeks after the appellant had been apprehended on the first occasion.   He was not at all deterred by having been found out so recently.   At the time, he was in breach of a sentence of  community work imposed for another driving offence.

[18]     While I do not doubt for a moment sincerity of the appellant’s intention to turn over a new leaf, he has in my opinion some distance to go before successfully

translating that desire into practical reality.   He must realise that if he is to remain offence-free he must organise his life in order to comply with his legal obligations and not simply to suit his own convenience.

[19]     I accept Ms Cuncannon’s submission to the effect that this sentence was well within range, and not manifestly excessive.

Result

[20]     For the foregoing reasons the appeal against sentence is dismissed.

C J Allan J