Opetaia v Police
[2015] NZHC 2532
•14 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000277 [2015] NZHC 2532
BETWEEN DOROTHY OPETAIA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 October 2015 Appearances:
Richard Slade for the Appellant
Kate Muirhead for the RespondentJudgment:
14 October 2015
JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by me on 14 October 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
OPETAIA v NEW ZEALAND POLICE [2015] NZHC 2532 [14 October 2015]
Introduction
[1] On 14 August 2014 Dorothy Opetaia was sentenced by Judge Fraser in the District Court at Auckland to 15 months’ imprisonment and 18 months’ disqualification for driving.1
[2] This sentence was imposed following pleas of guilty entered in respect of the following charges:
(a) four charges of driving while disqualified (third or subsequent);2 (b) one representative charge of breach of intensive supervision;3 and (c) one charge of giving false details to the Police.4
[3] At sentencing the Judge also granted the Department of Corrections’ application to cancel Ms Opetaia’s sentence of intensive supervision which had been imposed in September 2014 when she was sentenced on three charges of driving while disqualified, giving false details and failing to remain for an enforcement officer.
[4] Ms Opetaia now appeals her sentence on the grounds that in various ways the sentencing Judge erred. The essence of the appeal is that the sentence was manifestly excessive.
Factual background
[5] On 26 September 2014 Ms Opetaia was sentenced to three charges of driving while disqualified, one charge of failing to remain for an enforcement officer, one charge of giving false details and a charge of breaching her prison release conditions. She was sentenced to intensive supervision and was disqualified for driving for six
months.
1 New Zealand Police v Opetaia [2015] NZDC 16238.
2 Land Transport Act 1998, ss 32(1)(c) and 32(4): maximum penalty two years’ imprisonment,
$6,000 fine, more than one year of disqualification.
3 Land Transport Act 1998, s 44: maximum penalty $10,000 fine.
4 This sentence in relation to this charge does not appear to be subject to appeal.
[6] However, just a week later on 3 October 2014 she was seen in Glen Innes driving a black Subaru. She was pulled over. It was discovered she was a disqualified driver. She offered no explanation.
[7] Then, on 8 November 2014, a little over a month later, Ms Opetaia was involved in a domestic incident at a residential address in Glen Innes. The Police were called. Ms Opetaia was seen to drive away from the address in the Subaru.
[8] Just six days later on 14 November 2014, Ms Opetaia was again seen driving in Glen Innes, this time in a Honda. She was stopped by the Police who recognised her as a disqualified driver. She said she knew she was disqualified but she had to get to an urgent doctor’s appointment in East Tamaki as she was four months pregnant and there was no one else to drive her.
[9] A week later at about 7:30am on 21 November 2014 in Panmure she was again driving the Subaru. She said her name was Brenda Neho. She gave a date of birth and a place of residence. All these details were found to be false. Ms Opetaia told the Police she was returning a lawn mower to her grandmother’s house.
[10] The representative charge of breach of intensive supervision relates to a breach on 7 October 2014.
[11] Ms Opetaia has an extensive criminal history which dates back to 2005. A substantial proportion of her past offending is for non-compliance of various kinds of orders although she also has a number of convictions for low level property offending and relatively minor assaults against the Police.
[12] The pre-sentence report recorded that she has low impulse control and lack of problem solving skills. She is assessed as being at a high risk of re-offending although the likely harm from her offending is noted as limited. The report suggested that a history of non-compliance makes the imposition of a community- based sentence problematic. Furthermore, the addresses which Ms Opetaia had proposed for home detention were not found to be suitable.
District Court decision
[13] In sentencing Ms Opetaia, Judge Fraser observed that while the offending took place within a relatively compressed timeframe (roughly two months), the offending itself represented discrete and separate episodes of disqualified driving and as such should attract cumulative sentences.
[14] His Honour commented that Ms Opetaia had:
“… simply elected to thumb [her] nose at the disqualifications and just drive.”
As a consequence she had been apprehended four times. His Honour noted the summaries of fact revealed that Ms Opetaia simply drove when she wanted and for whatever reasons she felt were necessary at the time.
[15] The Judge traversed Ms Opetaia’s criminal record. He noted that she had four previous convictions for driving while disqualified or driving when suspended5 and nine convictions for breach of supervision, breaching release conditions and failing to answer bail. He observed that her criminal history was indicative of an attitude of contempt. His Honour also referred to the pre-sentence report and its conclusion that Ms Opetaia’s risk of re-offending was assessed as high.
[16] His Honour turned to consider whether an electronic sentence should be imposed. He concluded that a sentence of imprisonment was the least restrictive outcome in the circumstances. He indicated that this was for the reasons he had previously articulated, presumably a reference he made prior to the commencement of the formal sentencing process. He observed that a sentence of imprisonment
would promote in Ms Opetaia a sense of responsibility and acknowledgement.
5 These previous convictions were entered on 13 December 2010 (for an offence on 12 December
2010) and 26 September 2014 (for three further offences).
[17] Judge Fraser listed the following aggravating features of the offending and the offender:
(a) Ms Opetaia had been subject to a sentence of intensive supervision
(throughout her offending);
(b)she was on bail for at least one of the charges at the time of the offending;
(c) she had “significant previous convictions”;6 and
(d) the offending was “premeditated” including the appellant’s failure to
engage with the sentence of intensive supervision.7
[18] The Judge noted that Ms Opetaia would receive credit for a guilty plea but there were no other mitigating factors.
[19] His Honour adopted a starting point of 10 months’ imprisonment for the first offence of driving while disqualified. In doing so he relied on the comments of Duffy J in Peterson v Police.8 He then uplifted the starting point by adding three, three month sentences cumulatively for each of the remaining disqualified driving charges. To this he added a further two months for the breach of intensive supervision. His Honour said this resulted in an overall starting point of 20 months’ imprisonment.9 He then applied a five month or 25 per cent discount in recognition of the guilty pleas resulting in an end sentence of 15 months’ imprisonment of which
14 months was notionally attributable to the driving-related charges and one month
to the breach of intensive supervision, to be served cumulatively.
6 Ms Opetaia has 47 prior convictions.
7 It is difficult to understand what his Honour meant when he used the expression “premeditated”.
In the context it appears to have been a reference to the deliberate election to drive whenever and wherever Ms Opetaia wished despite the prohibition imposed by her disqualification.
8 Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009, endorsed in Keenan v
Police [2014] NZHC 1894.
9 This calculation appears to have been wrong. The total is in fact 21 months’ imprisonment (not
20 months’ imprisonment).
[20] The Judge then imposed special conditions relating to drugs and alcohol as well as departmental programmes. He cancelled Ms Opetaia’s sentence of intensive supervision and disqualified her from driving for 18 months on all the driving- related charges.
[21] Finally, he observed that he had not uplifted the sentence for previous relevant convictions in recognition of the totality principle and the appropriateness of the end sentence.
Appellant’s submissions
[22] Mr Slade, for Ms Opetaia, submits that while the starting point adopted for the first offence committed on 3 October 2014 was appropriate at 10 months, the cumulative three month uplifts for each of the other three disqualified driving charges together with the two month uplift for the breach of intensive supervision was too high having regard to the totality of the offending.
[23] Mr Slade submits that while that cumulative starting point was available, reference to comparable cases would have required his Honour to have adjusted the sentence downwards in recognition of the totality principle.
[24] Furthermore, Mr Slade submits that Judge Fraser ignored the mitigating circumstances of some of the offending and the personal circumstances of Ms Opetaia. He made particular reference to the important responsibilities she bears in relation to the ongoing care of her elderly grandmother.
[25] Conversely Ms Muirhead, for the Police, submits that the sentence, while towards the top of the available range, is not manifestly excessive. She points to a number of decisions of this Court and the Court of Appeal which have considered sentencing levels in cases involving multiple convictions for recidivist disqualified or suspended driving. These, she submits, justify a combined starting point of 18
months’ imprisonment.10
10 Peterson v New Zealand Police above n 8; Finch v R [2012] NZCA 446.
[26] Ms Muirhead submits that there are no personal factors applicable to Ms Opetaia which would justify a reduction of the sentence. The only available mitigation was her guilty pleas.
Approach to appeal
[27] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[28] In any other case, the Court must dismiss the appeal.11
[29] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.12 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.13
[30] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:14
(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.
11 Criminal Procedure Act 2011, s 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
13 At [33], [35].
14 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[31] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.15
Analysis
[32] In considering this appeal there are three broad issues. These are:
(a) Was a cumulative sentence for the driving offending too high?
(b)Should a deduction have been made for the circumstances of the driving offending?
(c) Should a deduction have been made for Ms Opetaia’s personal
circumstances?
[33] As noted, Mr Slade properly accepts that a 10 month starting point for the first offence was open to his Honour on the facts. Thus this aspect of the Judge’s sentencing methodology does not need to be considered.
[34] I now turn to consider each of the above questions in turn.
(a) Was a cumulative sentence for the driving offending too high?
[35] I agree with Mr Slade that the proper approach is to consider the total sentence rather than the individual components which make it up in determining whether the sentence is manifestly excessive. It thus follows that the focus of the enquiry must be on whether a sentence of 18 months’ imprisonment was available to reflect the offending for the fifth, sixth, seventh and eighth driving whilst
disqualified convictions. In other words was the effective starting point of 18
15 Ripia v R [2011] NZCA 101 at [15].
months’ imprisonment for the disqualified driving within the available range and not wholly out of proportion to the gravity of the overall offending when compared to similar offending.
[36] The authorities reveal that there are two judicial approaches which have been adopted when examining the sentencing levels for driving whilst disqualified. The first is that adopted by Duffy J in Peterson v Police.16 This involves setting a starting point with reference to the instant offending and then uplifting it for previous offending including previous convictions for driving while disqualified. The second approach involves setting a starting point with reference to the driving while
disqualified offences as well as any previous disqualified driving convictions. This was the approach favoured and adopted in Drinkwater v Police.17 This approach appears to have more judicial support although I agree with the comments of Dunningham J in Keenan v Police18 that in any event the adoption of either approach should lead to the same result.
[37] The question here is whether a total sentence of 18 months’ imprisonment is appropriate in the circumstances for four driving while disqualified offences being Ms Opetaia’s fifth to eighth such convictions. The following cases illustrate the levels of sentence which can be expected in cases of this sort.
(a) In Peterson Duffy J adopted a starting point of 10 months which was uplifted to 17 months for the appellant’s seventh driving while disqualified conviction. Obviously this case bears similarities to the present in terms of the number of relevant previous convictions but was arguably less serious because the appellant was only facing one charge at the time of sentencing.
(b) In Finch v R19 the Court of Appeal upheld a sentence of 18 months’
imprisonment imposed for three disqualified driving charges and one charge of perverting the course of justice (by presenting someone
16 Peterson v Police above n 8.
17 Drinkwater v Police [2013] NZHC 1036, approved in Maxwell v Police [2013] NZHC 3172 and
Sykes v Police [2014] NZHC 2642.
18 Keenan v Police above n 8 at [20]-[22].
19 Finch v R above n 10.
else’s license in an attempt to avoid being identified). There a starting point of six months’ imprisonment for perverting the course of justice was uplifted by 14 months to account the for three driving while disqualified convictions (being the fifth, sixth and seventh convictions). A further uplift of six months was given to reflect Mr Finch’s previous criminal history (mostly involving unspecified Youth Court matters) and the fact that some of the offending occurred while Mr Finch was on bail. This lead to a notional starting point of
20 months’ imprisonment for the three driving while disqualified
charges.20
While the Court recorded some reservations over the six month uplift to reflect the previous offending, noting that it represented 33 per cent of the starting point in relation to an 18-year old and that the higher starting point for a third and subsequent offence already recognised prior relevant convictions, the Court appeared to accept that the uplift reflected multiple instances of the commission of an aggravated offence and did not disturb the methodology or end sentence adopted by the sentencing Judge.
(c) In Lord v Police21 the appellant successfully appealed a sentence of six months’ imprisonment on two charges of driving while disqualified being his fourth and fifth convictions for disqualified or suspended driving. On appeal Mander J imposed a community-based sentence. Although this case bears some similarities to the present in that Mr Lord was sentenced on two disqualified driving charges which were committed within the space of approximately one month of each other, the most notable distinguishing feature is that Mr Lord’s most recent conviction for disqualified driving was 11 years previously. The earlier disqualifications arose from Mr Lord driving
under the influence of alcohol. The pre-sentence report indicated that
20 This figure does not take into account the six months cumulative term imposed on the perverting charge.
21 Lord v Police [2015] NZHC 1756.
Mr Lord had reformed. He had put that conduct behind him. The report assessed his risk of re-offending as low and that he did not present a risk of harm to others. In the circumstances, Mander J was faced with an entirely different sentencing proposition to that in the present case. What on its face appears to be a lenient sentence is entirely explicable.
(d)In Lawrence v Police22 a sentence of six months’ imprisonment was upheld on appeal for a charge of driving while suspended. A concurrent sentence of two months’ imprisonment was imposed on the second identical charge which had been committed while Mr Lawrence was awaiting sentence. Mr Lawrence had three previous convictions for driving while disqualified while his licence was suspended and had been disqualified on this occasion for having excess demerit points. He was subsequently stopped by the Police. He gave false details. He pleaded guilty and was remanded for sentence. However, prior to his sentencing, he again drove while his license was suspended. He appeared for sentence on both charges. Mr Lawerence’s appeal centred on the issue of whether driving while disqualified was more serious than driving while suspended. The High Court did not directly addess whether the sentence itself was appropriate
(e) In Marney v Police23 Keane J reduced a sentence of six months’ imprisonment to one of three months for a fourth conviction for driving while disqualified. Mr Marney pleaded guilty and was sentenced to imprisonment at a time when he was already in custody on firearms charges. A community-based sentence was not available. Keane J observed that he would not have adopted a nine month starting point for this offending had Mr Marney not been in custody,
even in the aggravated circumstances of the offending.
22 Lawrence v Police [2013] NZHC 197.
23 Marney v Police [2013] NZHC 3205.
(f) In Barton v Police24 a sentence of four months’ home detention was upheld on appeal in relation to two charges of driving while disqualified. Mr Barton had offended only a month after he had been disqualified for driving with excess breath alcohol. The convictions were his third and fourth convictions for driving while disqualified. Plainly the present case is a good deal more serious given the number of previous convictions for the same offence and the circumstances in which they were committed.
(g)In Iwikau v Police25 a sentence of nine months’ imprisonment for a seventh driving while disqualified charge and failing to stop was reduced to seven and a half months. It was Mr Iwikau’s seventh conviction for driving while disqualified. Williams J observed that the authorities suggest a sentence of between six and 10 months is available for a seventh offence and further substantial increases for subsequent re-offending between the fifth and tenth offences.
[38] What these authorities make plain is that the number of previous convictions for driving while disqualified or driving while suspended is strongly and directly relevant in assessing the starting point for this kind of offending. While a mathematical or formulaic approach is not to be commended, a starting point of 10 months’ imprisonment, albeit at the top end of the range, may be appropriate for an eighth conviction. The fact that multiple convictions are sentenced together will inevitably justify the imposition of a harsher sentence.
[39] The breach of a disqualification or suspension order must be treated with the seriousness it deserves. Parliament has determined that those convicted of a third or subsequent offence are liable to two years’ imprisonment or a $6,000 fine.26
Multiple breaches not only evince a contempt of the legal process but will often have an impact on the safety of road users. As the Court of Appeal observed in R v
Butterfield:27
24 Barton v Police [2014] NZHC 3240.
25 Iwikau v Police [2013] NZHC 2515.
26 Land Transport Act, s 32(4)(a).
27 R v Butterfield CA100/97, 23 July 1997 at page 5.
“As disqualification is a major part of the armoury to deal with the responsible driving on the road, adherence to such orders is essential to maintenance of the integrity of the system.”
[40] While a starting point of 10 months’ imprisonment is stern and is certainly at the upper end of the available range I do not consider it was outside the Judge’s sentencing discretion. More particularly, having regard to the Court of Appeal’s observations in Finch I am satisfied that the persistent nature of the offending, involving as it does four discrete episodes of offending leading to an eighth conviction deserved the stern judicial response it attracted. This is particularly so in light of Ms Opetaia’s dogged non-compliance with various Court orders in the past. A deterrent sentence which denunciated such an apparently cavalier, if not contemptuous, attitude to compliance with Court orders was called for.
[41] It follows that this ground of appeal must fail.
(b) Should a deduction have been made for the circumstances of the driving offending?
[42] Mr Slade submits that the end starting point for Ms Opetaia’s offending should have been discounted to account for the two mitigating factors relating to the driving offences on 8 and 14 November 20014. On 8 November 2014 she was seen driving from an address at which Ms Opetaia claimed she had been assaulted. On
14 November 2014 Ms Opetaia said that she needed to get to an urgent doctor’s appointment in East Tamaki as she was four months pregnant and there was no one else to drive her.
[43] However, these explanations need to be considered in the broader context of the offending viewed as a whole. Ms Opetaia’s first offence in the current sequence occurred on 3 October 2014 just days after her disqualification. She offered no explanation. The last offence was on 21 November 2014. This was the occasion when she tried to avoid identification by giving the Police a false name and particulars. Her explanation was that she was driving to her grandmother’s home to return a lawn mower.
[44] These explanations support the Judge’s conclusion that Ms Opetaia was thumbing her nose at the disqualifications. She simply drove whenever she wanted and for whatever reasons she felt were necessary. She appears to have felt quite unrestrained in her ability to get behind the wheel. These conclusions are supported by the observations of the author of the pre-sentence report who spoke of her continued lack of impulse control and her lack of problem solving skills. Her chronic non-compliance with various conditions imposed as part of her sentences further reinforces her complete lack of insight into her offending. I do not accept that Ms Opetaia’s explanations mitigate the offending.
(c) Should a deduction have been made for Ms Opetaia’s personal
circumstances?
[45] Mr Slade advances this submission on the basis that Ms Opetaia has been responsible for the care of her elderly and infirm grandmother.
[46] Judge Fraser gave no discounts in recognition of Ms Opetaia’s personal
circumstances other than the full guilty plea discount.
[47] While this factor might well have justified a modest discount, Ms Opetaia might also have faced an uplift to reflect her extensive previous offending beyond that already reflected in her three previous driving convictions. In my view any discount would have been more than balanced by such an uplift.
[48] In the circumstances I am satisfied that the Judge did not err in not applying the discount given that any such discount, modest as it would necessarily have been, would likely be cancelled by an uplift for previous offending.
(d) Should home detention have been imposed?
[49] I now turn to consider whether an electronically monitored sentence should have been imposed. I consider that Ms Opetaia’s chronic and persistent non- compliance with Court orders means anything short of a full-time custodial sentence would have been inappropriate.
[50] Judge Fraser expressly turned his mind to whether an electronically monitored sentence was appropriate in the circumstances. He concluded that a sentence of imprisonment was the least restrictive outcome in the circumstances in the light of the need to deter Ms Opetaia and to promote in her a sense of responsibility. In coming to this conclusion he not only relied on Ms Opetaia’s previous convictions but also the comments contained in the pre-sentence report and, in particular, the assessment of Ms Opetaia’s risk of re-offending and the harm she presents to others. The comprehensive report canvassed Ms Opetaia’s history of non-compliance including her convictions for previous breaches of supervision and intensive supervision of which there were seven and her failure to answer District Court bail of which there were five. The report author concluded in the following way:
“Due to [Ms Opetaia’s] continuing poor compliance with any community- based sentence, a sentence of imprisonment is recommended. While it is recognised that a sentence of home detention may also restrict Ms Opetaia’s movements and reduce her opportunity to re-offend, Ms Opetaia’s lack of problem solving means that her ability to comply with a restrictive sentence is questionable. Furthermore, a suitable address for electronic sentence is currently unavailable.”
[51] Although it now appears that a suitable address is available I remain of the view that the imposition of a sentence of home detention would not represent an adequate response to the seriousness of the offending.
Result
[52] The appeal is dismissed.
Moore J
Solicitors:
Public Defence Service, Auckland
Crown Solicitor, Auckland
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