Muhinda v Police
[2015] NZHC 2024
•26 August 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000070 [2015] NZHC 2024
BETWEEN MARTIN MUHINDA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 25 August 2015 Appearances:
P Johnson for Appellant
AMS Williams and A Trinder for CrownJudgment:
26 August 2015
JUDGMENT OF DUNNINGHAM J
Background
[1] Mr Muhinda appeals his sentence on seven charges arising out of four separate incidents.
[2] The end sentence was imposed on Mr Muhinda on 5 June 2015, totalled
2 years and 2 weeks imprisonment.1
[3] The appellant now appeals the decision on the following grounds:
(a) the starting point of eight months adopted for the May 2014 offending was manifestly excessive;
(b)the starting point of 18 months adopted for the January 2015 offending was manifestly excessive;
1 Police v Muhinda [2015] NZDC 10385.
MUHINDA v NEW ZEALAND POLICE [2015] NZHC 2024 [26 August 2015]
(c) Judge Couch did not give sufficient recognition to the mitigating factors of the appellant; and
(d)Judge Couch failed to properly adjust the end sentence to account for the principle of totality.
Principles on appeal
[4] This is an appeal under s 244 of the Criminal Procedure Act 2011. Under s 250 of the Act, the appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The Court must dismiss the appeal in any other case.3
[5] While s 250 makes no reference to the principle that a sentence is in error if it is “manifestly excessive”, it is accepted by the Courts that it is an error which could justify an appeal being allowed against sentence.4
The offending
First driving whilst disqualified (third and subsequent) and resisting police
[6] On 2 May 2014 Mr Muhinda was driving a car on Chester Street in Christchurch when he was pulled over by the police. Earlier that year, in February, Mr Muhinda had been disqualified from holding a driver licence for 13 months. When the police attempted to arrest the appellant, he tried to run away and then resisted arrest and struggled with the police when they tried to handcuff him.
[7] Mr Muhinda was found guilty of the following charges:
(a) driving whilst disqualified (third or subsequent);5 and
(b) resisting police.6
2 Section 250(2).
3 Section 250(3).
4 Tutakangahau v R [2014] NZCA 279 at 35.
5 Land Transport Act 1998, s 32(1) and (4).
6 Summary Offences Act 1981, s 23(a).
Wilful damage
[8] On 21 December 2014, Mr Muhinda was at the home of another person. He had been drinking heavily all night and was extremely intoxicated. Somehow, undoubtedly due to his extreme intoxication, he wrongly formed a view that someone had taken money belonging to him. He flew into a rage, smashing windows of the apartment and punching and kicking holes in the walls. Mr Muhinda
was charged with wilful damage.7
Common assault
[9] On 5 January 2015, Mr Muhinda was on Rolleston Avenue when a parking infringement officer began issuing a ticket to a vehicle that he had been a passenger in. Mr Muhinda tried to intervene and prevent the officer from doing so. He became aggressive towards her, spitting in her face and knocked her hat off her head. He was charged with common assault.8
Driving whilst disqualified (third or subsequent), refusing blood, careless operation of a vehicle
[10] On 27 January 2015, Mr Muhinda was again driving his car when he failed to stop at the end of a cul-de-sac, mounting the curb and crashing through some shrubs and a wooden bollard. Mr Muhinda was again extremely intoxicated at the time. He was taken to the police station where he refused to undertake an evidential breath test and refused to permit blood to be taken for the purposes of a blood test.
[11] Mr Muhinda was charged with:
(a) driving whilst disqualified (third or subsequent);9
(b) refusing officer’s request for blood;10 and
(c) careless driving.11
7 Summary Offences Act 1981, s 11(1)(a).
8 Summary Offences Act 1981, s 9.
9 Land Transport Act 1998, s 32(1) and (4).
10 Land Transport Act 1998, s 60(1)(a) and (2).
The District Court sentencing decision
[12] Given that the four events were unrelated, Judge Couch decided to sentence them cumulatively. He took the May 2014 driving while disqualified charge as the lead offence, aggravated by the resisting arrest. He took a starting point of eight months and, as it went to a defended hearing, there were no mitigating factors.
[13] Moving to the January 2015 driving offence, this was the appellant’s fifth driving while disqualified in less than two years increasing the gravity of the offending. He was also extremely intoxicated at the time and refused to provide a blood specimen. There was also the further element of the careless driving causing the car to crash as well as the fact that he was on bail at the time. Judge Couch took a starting point for the overall offending of 18 months, reduced by four and a half months for the guilty pleas.
[14] On the remaining charges, Judge Couch sentenced Mr Muhinda to two months’ imprisonment for the wilful damage taking account of the guilty plea and a further month for the assault on the parking warden. It was considered that the assault, although minor, was aggravated by the fact that the parking warden was a front line public service officer and was vulnerable on the basis that she worked alone.
[15] In summary, the sentence was structured as follows: (a) 2 May 2014 offending:
(i) Driving while disqualified – eight months’ imprisonment
(cumulative);
(ii) Resisting arrest – one month imprisonment (concurrent); (b) 21 December 2014 offending:
(i) Wilful damage – two months’ imprisonment (cumulative);
(c) 5 January 2015 offending:
(i) Common assault – one month imprisonment (cumulative); (d) 27 January 2015 offending:
(i) Driving while disqualified – 13 and a half months’
imprisonment (cumulative);
(ii) Refusing a blood specimen – two months’ imprisonment
(concurrent);
(iii) Careless driving – conviction and discharge.
Submissions for the appellant
[16] Having set out the grounds for the appeal, Mr Johnson’s submissions focused particularly on the sentence for the May 2014 and the January 2015 offending. In relation to the driving while disqualified offence, it was accepted that Mr Muhinda had three previous convictions for this in the past two years. However, it was submitted that, when compared with similar cases, the sentence level was manifestly
excessive.12 Taking into account what he submitted were comparable cases, he said
his offending should attract a sentence in the range of three months.
[17] In relation to the January 2015 offending, it was submitted that an 18 month starting point and a 13 and a half month end sentence was out of step with
comparable cases, and that similar offending attracted a sentence of six months.13
12 Taulupe v Police HC Auckland CRI-2012-404-255, 25 September 2012; Police v Taufa DC Palmerston North CRI-2008-069-2566, 26 March 2009; Hirsi v Police HC Wellington AP179/00, 27 September 2000; Muggeridge v Police HC Christchurch CRI-2005-409-137, 12
August 2005; Vhigakeni v Police HC Auckland CRI-2011-404-000299, 3 October 2011; Pompey v Police HC Auckland CRI-2010-404-191, 27 September 2010.
13 Koteka v Police HC Auckland CRI-2010-404-166, 13 July 2010; Kata v Police HC Wanganui
CRI-2010-483-68, 26 January 2011; Police v Barriball HC Gisborne CRI-2006-416-9, 1 June
2006; Rangitonga v Police [2014] NZHC 2323; Rosoman v Police HC Christchurch CRI-2010-
409-37, 22 April 2010; Tiopira v Police HC Hamilton CRI-2011-419-103, 6 March 2012.
[18] Mr Johnson also submitted that the Judge did not have proper regard for mitigating factors. Mr Muhinda is of Kenyan descent and had never consumed alcohol until shifting to New Zealand. His offending often relates to alcohol and he has acknowledged his problematic behaviour and expressed his desire to attend rehabilitative programmes. He has a four year old son and a supportive partner, and is a qualified automotive mechanic, so has real incentive to rehabilitate and lead a better life.
[19] Finally, counsel submits that the Judge did not properly account for totality. While he reminded himself of the obligation at the outset of the sentencing decision, there is no evidence that he checked whether the total end sentence satisfied the totality principle.
Submissions for the respondent
[20] The respondent submitted that the sentence was not manifestly excessive. In relation to the May 2014 driving offending, it was said that previous sentencing decisions are of limited assistance and Judge Couch was best placed to assess the gravity of the offending. Although the eight month sentence may be considered stern, it was within range given the aggravating factors present in this case.
[21] In respect of the January 2015 driving offences, the respondent submitted that Judge Couch was confronted with a defendant who was heavily intoxicated while driving, was disqualified at the time, was on bail for earlier driving charges at the time and had driven the car carelessly. The sentence imposed was similar to that imposed in other cases.14
[22] It was also submitted that the Judge was entitled to place little weight on the personal factors of the appellant given the pattern of offending.
[23] Finally, although a sentence of two years and 14 days is stern, the respondent submitted it did not offend the totality principle. It is clear the Judge was aware of the totality principle in undertaking the sentencing exercise as he noted at the outset,
that “these four incidents were unrelated and they must be sentenced cumulatively. Having done that, I must step back and consider whether the totality of the sentence is appropriate for the totality of the offending”.
Analysis
[24] The appellant cited a number of authorities in support of his position. In Tu Huia v Police, the offender pleaded guilty to two charges of reckless driving, and one charge of dangerous driving, driving whilst disqualified, aggravated assault, failing to stop and ascertain injury, and failing to stop for red and blue lights. The High Court allowed the appeal, finding that a 12 month starting point was too high and a six month starting point should have been taken. Harrison J stated that:15
It is the act of driving while disqualified, and the degree of repetition, which sets the starting point. The culpability of the driving which follows falls into a discrete sentencing category, subject of course to the totality principle.
The offender had two previous convictions for driving while disqualified.
[25] In Taulupe v Police the offender had pleaded guilty to one charge of driving while disqualified and one of refusing an officer’s request for blood. The appeal of the four month sentence of imprisonment was allowed and a three month sentence was substituted. However, on appeal issue was not taken with the six or seven month starting point. It is, of course, the starting point which provides guidance.
[26] In Peterson v Police, Mr Peterson appealed a sentence of 18 months’ imprisonment for the offence of driving whilst disqualified, third or subsequent.16 In setting the starting point, Duffy J held:
[9] Maximum sentences are reserved for the very worst examples of offending. I consider that a starting point of slightly less than halfway between the maximum sentence is appropriate for this offence. For sentencing for most offences, starting points tend to be around the halfway mark of the maximum sentence. In this case, apart from the actual driving whilst disqualified, there is nothing else about the offence that would constitute an aggravating feature of the offending in terms of s 8(a). This is not a grave case of driving whilst disqualified. For example, there are no
15 At [15].
16 Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009.
additional features such as Mr Peterson being apprehended as a result of his driving calling him to the attention of the Police, or being found to have committed other traffic offences such as driving at excess speed, deliberately driving badly, driving in a reckless or careless manner, or driving with an excess blood alcohol limit. Nor is this a case where his driving has resulted in the injury of another person. I consider, therefore, that a sentencing point of 10 months’ imprisonment is appropriate.
[27] Having regard to these cases an eight month starting point does not appear to be outside of the range of what was available. It was Mr Muhinda’s fourth driving whilst disqualified in a very short period of time. This was also aggravated by the fact that he resisted police at the time of arrest.
January 2015 offending
[28] Counsel for the appellant has also submitted that the starting point for the January 2015 offending was too high. As has been seen, Judge Couch took a starting point for the overall offending that day of 18 months’ imprisonment.
[29] Taking the driving whilst disqualified as the lead charge, Duffy J’s approach to sentencing can again be applied. It was, of course, the aggravated form. The charge was not simply in the context of Mr Muhinda being pulled over either. He was extremely intoxicated and driving carelessly, crashing his car up onto a curb. This is very serious given the potential for injury to himself and others. A 10 to
12 month starting point would have been justified.
[30] This must then be uplifting for the previous driving whilst disqualified offending. This is Mr Muhinda’s fifth charge in a very short space of time. A two month uplift would have been appropriate taking the sentence to 12 to
14 months’ imprisonment. Finally, Mr Muhinda was on bail at the time of the offending for the previous charge of driving whilst disqualified. A further two month uplift would need to be imposed taking the sentence to 14 to 16 months’ imprisonment.
[31] In terms of mitigating factors, the appellant’s counsel submits that Mr Muhinda has shown a desire to attend rehabilitative programs during his time in prison. However, in the sentencing report provided at the time of sentencing, it was
stated, “Mr Muhinda presented at the interview as having no insight into his offending. He minimised his offending and blamed others for his behaviour.” The report also says that “Mr Muhinda describes himself as a binge drinker and does not acknowledge that he is alcohol dependant.” This desire is therefore questionable.
[32] It was submitted that Judge Couch failed to properly take into account Mr Muhinda’s Kenyan descent and his struggles with alcohol since arriving in New Zealand. While Mr Muhinda obviously has considerable trouble with alcohol and this may be attributed to his cultural background, the fact is that Mr Muhinda has been unwilling to recognise his very apparent issues with alcohol.
[33] Finally, although Judge Couch appears to have given a full 25 per cent discount, this appears to be generous given the nature of the charges and the strength of the evidence. A 20 per cent discount would reduce the sentence to 11 to 13 months’ imprisonment.
[34] For these reasons, the starting point for the January 2015 offending was not too high, nor was the end sentence.
Totality
[35] Finally, counsel for the appellant submitted that totality was not properly taken into account when imposing the final sentence. The totality principle can be found in s 85 of the Sentence Act 2002:
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then
longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.
[36] In R v O the Court of Appeal held:17
Where an offender is to be sentenced for multiple offences, individual sentences must be fashioned which reflect the seriousness of each offence. This is an overarching requirement. But, the sentence must also be structured in such a way as to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of the offending. Various options as to how the sentence might be structured are described. Longer concurrent sentences, or a combination of concurrent and cumulative sentences, may have to be preferred.
[37] While Judge Couch was entitled to sentence the four separate offences cumulatively, the question is whether he should have taken a step back at the end of the exercise and reduced the final sentence of 24 and a half months.18
[38] Ultimately, counsel could point me to no cases directly on point. They both considered that it was a matter of overall impression having stood back and looked at the cumulative total reached through the individual sentencing exercises.
[39] Here, the appellant submits that a 12 month sentence would be sufficient to reflect the gravity of the offending, while the respondent, although conceding the sentence overall was “stern”, is satisfied that it is still within range.
[40] In this case, it is not clear whether the Judge did undertake such a check under s 85. In reviewing the sentence myself, I cannot accept the appellant’s proposed end point. That would not properly reflect the gravity of the offending, particularly where there is a significant component in this of repeat offending, and
where previous charges and sentences have failed to bring home to the offender the
17 R v O CA 258/05, 3 March 2006 at [19].
seriousness of his conduct, and so there is a need for a deterrent element to the sentencing.19
[41] However, when undertaking the s 85 exercise, I am satisfied that a sentence of 21 months would adequately reflect the gravity of the total offending. That compares with a sentence of 24 and a half months which was imposed.
[42] While that comes close to “tinkering” with a sentence, I am satisfied that a reduction of three and a half months in Mr Muhinda’s sentence through applying the totality principle, is material, and does justify a different sentence being imposed.
[43] Accordingly, the appeal is allowed and a sentence of 21 months’
imprisonment is imposed.
[44] That is achieved by reducing the sentence for the 27 January 2015 driving while disqualified charge to 13 months’ imprisonment (still to be served cumulatively) and by requiring both the 21 May 2014 wilful damage charge, and the
5 January 2015 assault charge, to be served concurrently with the other sentences, rather than cumulatively.
[45] Because home detention is now technically available, I am bound to consider it.20
[46] However, Mr Muhinda has not sought home detention and his counsel has noted that the time spent in custody will allow him to complete rehabilitative programmes aimed at addressing his issues with alcohol and anger management.
[47] Given the need for a deterrence factor in the sentence, and to take Mr Muhinda out of the circumstances which have led him to repeatedly offend in the ways he has, I consider a prison sentence is appropriate.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
19 R v McQuillan CA 129/04, 12 August 2004.
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