Osikai v Police - [2015] NZHC 2952

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-454-0021 [2015] NZHC 2952

BETWEEN
CRUISE OSIKAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 November 2015

Counsel:

P S Coles for Appellant
N J Wynne for Respondent

Judgment:

24 November 2015

JUDGMENT OF SIMON FRANCE J

[1] Mr Osikai appeals a sentence of 13 months’ imprisonment for a charge of driving while disqualified (third or subsequent). It was Mr Osikai’s eighth conviction for driving while disqualified. On this occasion Mr Osikai was apprehended during a routine stop. There was no particular aspect of his driving, other than his status as a disqualified driver, that caused concern.

[2] The Sentencing Judge took a starting point of 18 months. There was then a four month reduction for a guilty plea, and one month for other matters.1 The appeal is brought on the basis that the outcome is manifestly excessive. Mr Coles analyses the sentence as being constructed of a 10 month’ starting point with an eight month uplift for past offending.2 He submits that an 80 per cent uplift is too great given there was no concern over his driving per se, and Mr Osikai had not previously been
subject to a sentence of imprisonment.

1 New Zealand Police v Osikai [2015] NZDC 16898.
2 This is based on the analysis in Peterson v Police HC Hamilton CRI-2009-419-000011,
20 February 2009. That case was referred to by the Judge immediately before fixing a starting point. In Petersen the starting point was 10 months and there was a seven month uplift for the fact it was offence six.

OSIKAI v NZ POLICE [2015] NZHC 2952 [24 November 2015]

[3] In Keenan v New Zealand Police3 Dunningham J reviewed the authorities and identified two approaches – those where the number of previous convictions is built into the starting point,4 and those who where a nominal figure is allocated to the driving offence, and then there is an uplift.5 As is often observed it probably does not matter which approach is followed; however, a difficulty with the uplift approach is that increases of 80 per cent or more become inevitable.

[4] That is the answer to Mr Coles’ submission on uplift. I agree 80 per cent in relation to a first sentence of imprisonment seems excessive, but it only arises because a 10 month starting point is only appropriate for a notional offence of third time driving while disqualified. It is the uplift that must then capture the fact that it is actually offence eight, and which leads to such big uplifts. That is why
Rodney Hansen J in Maxwell v Police preferred the global starting point approach.6

[5] In Finch v R,7 an uplift of 14 months for disqualified driving offences five, six and seven was upheld in relation to an 18 year old. In R v Butterfield8 a starting point of 18 months for offences eight and nine was upheld. Whilst neither Court of Appeal decision purports…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 2952
Decision Date: 24 November 2015

CaseChat Overview and Summary

Cruise Osikai, the appellant, appeals the sentence of 13 months' imprisonment imposed for driving while disqualified for the third or subsequent time. This was Mr Osikai's eighth conviction for the same offence. The appeal contends that the sentence is manifestly excessive. The sentencing judge had initially set a starting point of 18 months, reduced by four months for a guilty plea, and a further month for other factors, resulting in the 13-month sentence. Counsel for the appellant argues that the 80% uplift for past convictions is excessive, especially as there was no significant driving concern and Mr Osikai had not previously been imprisoned for this offence. The legal issues revolve around the appropriateness of the starting point and the uplift applied for the multiple prior convictions.

The High Court analysed the sentencing approaches, distinguishing between incorporating the number of previous convictions into the starting point or applying a nominal figure for the driving offence with an uplift for past convictions. The Court noted the potential for excessive uplifts using the latter approach. The Court compared the case with previous decisions and concluded that a starting point of no more than 15 months for the first imprisonment sentence was appropriate. The Court allowed the appeal, quashed the 13-month sentence, and substituted a sentence of 10 months' imprisonment, applying the same deductions as the District Court.

The final orders of the court were to allow the appeal, quash the sentence of 13 months' imprisonment, and substitute a sentence of 10 months' imprisonment. This decision ensures that the sentence aligns with judicial authority on similar cases and appropriately considers the appellant's first experience with imprisonment for this offence.

Orders