Paikea v Police
[2014] NZHC 2609
•23 October 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-488-24 [2014] NZHC 2609
BETWEEN JOSEPH PAIKEA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 October 2014 Appearances:
N Cooke for Appellant
MB Smith for RespondentJudgment:
23 October 2014
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 23 October 2014 at 3:15 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
PAIKEA v NEW ZEALAND POLICE [2014] NZHC 2609 [23 October 2014]
Introduction
[1] On 13 September 2013 at 8.20pm, the appellant, Joseph Paikea was riding his Suzuki motorcycle in Waipu when he lost control on a moderate bend and crashed into a roadside drainage ditch, causing the motorcycle to flip and throw him off. As a result of the accident Mr Paikea suffered serious injuries, including numerous broken ribs; punctured lungs; a fractured right shoulder; and multiple fractures to his right foot. A subsequent blood sample taken at the hospital showed his blood to contain 112 milligrams of alcohol per 100 millilitres of blood, some 32 milligrams over the legal limit.
[2] In due course, Mr Paikea pleaded guilty to charges of driving while disqualified (third or subsequent offence) and driving with excess blood alcohol (third or subsequent offence). He now appeals against a total effective end sentence of 23 months’ imprisonment imposed upon him by Judge D J McDonald in the
Whangarei District Court on 3 July 2014.1 Mr Paikea says he should have been
sentenced to home detention.
[3] I have decided that imprisonment was appropriate in this case, but that the term should be reduced by three months, having regard to recently obtained medical evidence. I now explain why.
Background
[4] Mr Paikea is a serial drink-driving offender and a man who has demonstrated that he is unwilling, if not unable, to obey court orders disqualifying him from driving motor vehicles. On 22 May 2012 he was convicted, for the 14th time, of driving while disqualified. On 22 July 2013, having previously been convicted of driving with excess breath alcohol in 1991 and in June 2011, he was convicted of that offence for the third time. On that occasion he was sentenced to community
work and supervision and was disqualified from driving for a period of three months;
he was eligible to apply for an alcohol interlock device under s 65A of the Land
1 NZ Police and Department of Corrections v Paikea DC Whangarei CRI 2013-088-2806 3 July
2014.
Transport Act 1998. The offending in September 2013 occurred only seven weeks later; no interlock device was fitted to the motorcycle.
The approach taken in the District Court
[5] Although he entered not guilty pleas to the charges arising from the accident when the charges were first before the District Court in November 2013, and maintained them at appearances in March and January this year, Mr Paikea pleaded guilty to the charges in March 2014. On 3 July 2014 he was sentenced by Judge McDonald to 14 months’ imprisonment for driving while disqualified and an additional six months imprisonment for driving with excess blood alcohol. He was also ordered to have a zero alcohol licence and was indefinitely disqualified, with a minimum period of disqualification of 14 months.
[6] Mr Paikea was also ordered to serve a further three months’ imprisonment in the place of earlier sentences of community work and supervision for the July 2013 convictions, with which he had not complied and which were no longer considered to be appropriate due to the injuries sustained in the accident.
[7] In March this year, Judge McDonald granted Mr Paikea’s counsel’s request to delay the sentencing on the grounds, among other things, that Mr Paikea was too unwell. The Judge directed that medical records be provided to substantiate that Mr Paikea was still seriously injured; the appellant was also to provide an appropriate address for a prospective sentence of home detention. The Judge warned him, however, that home detention may not be ordered.
The sentencing in the District Court
[8] Mr Paikea had not provided the medical records by the sentencing date. The Judge said he was satisfied that imprisonment was appropriate, having regard to the need to deter and denounce the conduct, and to maintain consistency of sentencing for similar offending. The Judge also considered that Mr Paikea poses a danger to society as a recidivist drink/driver who had demonstrated a lack of compliance with court orders, shown by his high number of convictions for driving while disqualified.
Further, Judge McDonald paid regard to two pre-sentence reports which highlighted that the appellant showed no remorse and recommended imprisonment. Mr Paikea had sought a community-based sentence to be able to continue work at the same place as his partner, with a trust established to provide youth alcohol and drug support services but the Judge questioned the proposition that the appellant might be seen as a role model.
The submissions in support of the appeal
[9] The sentence is appealed on a number of grounds which Mr Cooke submitted, taken together, render a sentence of imprisonment manifestly excessive:
(a) Too much emphasis was placed on the appellant’s prior convictions,
many of which are historical.
(b)The Court allowed sentencing to proceed without a final medical report being provided to the Court and did not consider the medical discharge report annexed to the probation officer’s affidavit.
(c) The Judge did not acknowledge that the circumstances of the drink/driving offence involved no particular danger to other road users, and failed to give adequate weight to the ongoing effect of the serious injuries suffered by Mr Paikea.
(d)Although the end sentence was less than two years’ imprisonment, no consideration was given to the possibility of home detention.
(e) The Judge wrongly considered that the pleas of guilty were entered late and failed to give an appropriate discount for them.
Prior convictions
[10] Mr Cooke argued that it was inappropriate for the Court to treat the disqualification charge simplistically as the appellant’s 15th charge when there had been a significant gap in the offending history. Prior to Mr Paikea’s 14th conviction
in 2011 for driving while disqualified, he had not offended in that manner since
1991. The penalty in 2011 was 250 hours community work and counsel submitted prior convictions should be put to one side and that Mr Paikea was entitled to a sentence which amounted to a “gentle gradation”, building on the community work sentence.
[11] Although Judge McDonald acknowledged the gap in that type of offending, he referred to the fact that the appellant had been imprisoned for a substantial part of the relevant period. Mr Cooke argued that this view fails to look at the overall period for which the appellant was free of offending.
[12] I agree with the observation by the District Court Judge, however, that the gap in Mr Paikea’s offending of this kind, both as to driving while disqualified and driving while intoxicated, was addressed and obviously given weight by the sentencing judges when he appeared in June 2011 and July 2013. On those occasions Mr Paikea received community-based sentences. Regrettably, he failed to comply with the terms of the sentences imposed in 2011 and offended again, after further leniency in 2013, only seven weeks later. Judge McDonald was entitled to take the view that denunciation and deterrence (both generally and for Mr Paikea personally) were sentencing factors to which weight needed to be given when dealing with the most recent offending.
The circumstances of the offence
[13] Mr Cooke also submitted that the particular the circumstances of the offence were not adequately taken into account and that the Judge was wrong to conclude that the accident occurred as a result of his intoxication. He said the salient facts were that the accident was just a mishap which occurred on a relatively remote part of the country; the motorcycle was safe to drive; it was not suggested that the appellant was incapable of adequate control of a motor vehicle at the time in question; the alcohol reading was relatively low; and there is no evidence of excessive speed. Mr Cooke’s point was that there was no particular danger to other road users in the manner in which Mr Paikea was operating the motorcycle.
[14] While there is no evidence of dangerous or reckless driving or riding by Mr Paikea prior to the accident, Mr Cooke’s submission overlooks the purpose of the drink/drive legislation which is to protect road users from the increased risk of harm due to the consumption of alcohol. Evidence is not required to satisfy the Court that the operator of a motorcycle having consumed sufficient alcohol to register a blood alcohol level 32 percent over the legal limit is less well equipped to manage the risks inherent in driving a motor vehicle or riding a motorcycle than someone who has not been drinking. In this case, Mr Paikea’s explanation to the probation officer was that “his accident was caused by a lady driving on the wrong side of the road towards him whilst talking on a cell phone.” While Judge McDonald’s statement that Mr Paikea crashed his motorcycle because he was drunk may contain an element of exaggeration for effect, the Judge was making a valid point that the accident was confirmation of the risks of harm to road users which the legislation was intended to reduce.
Guilty plea discount
[15] Mr Cooke was also critical of Judge McDonald’s comment that the appellant had entered his guilty pleas late, arguing that the observation did not adequately take into account the disabling effect of Mr Paikea’s injuries. But Judge McDonald, nevertheless, allowed a 20 percent discount to Mr Paikea for guilty pleas entered on his third appearance. I consider that to be a more than fair allowance in circumstances where the maximum discount available is 25 percent.
Significance of appellant’s injuries
[16] The principal thrust of Mr Cooke’s submissions was to emphasise the seriously debilitating effect of Mr Paikea’s injuries. He argued that the District Court Judge should have given more weight than he did to the inherently deterrent effect on the appellant of his serious injuries which continue to cause him pain, discomfort and inconvenience through his severely restricted mobility. Mr Paikea had been advised by Judge McDonald to obtain medical reports supporting his submission that home detention was an appropriate sentence bearing in mind, at least in part, the effects of his injuries. Mr Paikea did not do so and I consider the Judge
was entitled to conclude that the discharge summary dated 30 September 2013 (nine months prior to the sentencing date) which was attached to the re-sentencing application did not provide much support for Mr Paikea’s representations.
[17] In support of the appeal, however, Mr Cooke relied heavily on a report from Mr Paikea’s orthopaedic surgeon which was prepared post-sentencing, at the end of August 2014. After describing the injuries, the report comments on the medium to long-term consequences of Mr Paikea’s injuries. It discusses as well the desirability and prognosis for further surgery to address an undisplaced tibial plateau fracture, which I understand to be a break at the top of the shinbone close to the knee, an injury not diagnosed until shortly before the preparation of the report.
[18] The report is confined to addressing the orthopaedic injuries and indicates that Mr Paikea is likely to have some permanent dysfunction in terms of limited range of movement from the injuries to his shoulder, and permanent injury from his right mid-foot injury meaning he is unlikely to be able to run and will have some permanent stiffness and pain in his foot when active; standing or walking for long periods is predicted to be difficult. Knee reconstruction surgery is recommended to deal with the recently diagnosed tibial fracture, following which it is predicted the appellant may also have ongoing symptoms in his right knee and a possible increased risk of future post-traumatic arthritis involving that knee.
[19] Two consequences arise from this prognosis. First, as Mr Cooke put it, Mr Paikea suffers and will continue to suffer discomfort and a degree of permanent disability which will remind him every morning of the cause of his injuries. In Mr Cooke’s submission, these consequences will have a far more potent deterrent effect than a sentence of imprisonment.
[20] The second consequence for Mr Paikea, if he is to address the recommendation for immediate reconstructive knee surgery, is the need to undertake such surgery while in prison. An arrangement was recorded in the orthopaedic surgeon’s report enabling Mr Paikea to undergo the necessary surgery on 29 August, incarceration in prison not restricting Mr Paikea’s access or availability to undergo surgery. The report included an addendum recording that the surgery was not
performed because Mr Paikea refused to co-operate with prison staff to allow transportation despite an elective surgery having been arranged and prison transport being available. The orthopaedic surgeon noted that carrying out the proposed surgery on a non-compliant patient would not be appropriate. The report said that, so far as rehabilitation following surgery is concerned, Mr Paikea would be required to use crutches for a period of six weeks and to take simple oral analgesia for pain relief. He would need approximately three follow-up appointments at Whangarei Hospital.
[21] In response to the orthopaedic report, Mr Paikea explained his refusal to undergo the operation in a letter to the Court in which he said:
(a) He did not know about the proposed operation until the evening before it was due to occur and then was told that it was only a check- up or minor surgery rather than major knee reconstruction.
(b)He was told his partner would not be present at the hospital even though she had previously been with him through each operation, hospital stays in the whole recovery process.
(c) He did not believe that prison staff would be able to attend to his daily needs in terms of personal hygiene, meals and medication management.
(d)He would be bedridden for some period of time and then in a wheelchair followed by crutches during what he had been told was a four to six months recovery timeframe.2
(e) He did not believe the prison was a sterile environment for keeping infections at bay.
(f) He did not believe he would cope physically or emotionally with recovery in prison because he required specialist nursing care, strong
2 I observe that this pessimistic view cannot have been founded on the orthopaedic surgeon’s
opinion.
pain relief, rehabilitation, physiotherapy and follow-up checks at hospital.
(g)Travelling in the prison van was extremely difficult and he could not cope with the pain his body endures when being transported, so he knew he would not manage the pain levels post-operation.
[22] Mr Paikea concluded by saying that, while he appreciates that every day he waits for the surgery puts the proper healing of his leg at risk, he would rather have a crooked leg and swollen knee than go through the inconvenience and discomfort he anticipated.
[23] There was no opposition by Mr Smith to the appellant’s reliance on this additional information which was not before the sentencing Judge. It follows that the sentencing Judge could not have had regard to the issues concerning the tibial fracture and the prospect of surgery which were not known to Mr Paikea or the medical specialists until after sentencing.
Discussion
[24] I have given careful consideration to the medical report and Mr Paikea’s letter in the context of Mr Cooke’s submission that a merciful court should take the injuries and the prognosis into account, either in determining the appropriateness of home detention as a substitute for imprisonment or, as a less desired alternative, a reduction in the length of the term of imprisonment.
[25] Section 250(2) of the Criminal Procedure Act 2011 requires this Court to allow a sentence appeal from the District Court if it is satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.
[26] A strict interpretation of this provision would suggest that the existence of an error in sentence must be determined by reference to the decision of the sentencing court, thereby precluding consideration of fresh evidence obtained post-sentencing
and made available to the court under the express power to receive new evidence provided by s 335(2)(c) of the Act. That was not the intention of the legislature.
[27] In respect of sentence appeals to this Court under the Summary Proceedings
Act 1957, the Court of Appeal said in R v Shipton:3
There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”… to establish that an error was involved in the imposition of the sentence, it must be shown that in sentencing the trial Judge has indeed made an error whether intrinsically, or as a result of additional material submitted … on the appeal… It is only if an error of that character is involved that the Court should re-exercise the discretion.
(Emphasis added)
[28] The Court of Appeal has since confirmed that the approach under the former legislation remains the approach to be taken under s 250 CPA.4
Home detention not appropriate
[29] While the fresh medical evidence may be taken into account, therefore, I am not persuaded by it that Judge McDonald was wrong in his assessment that home detention was not an appropriate sentence in this case. Mr Cooke sought to argue that the Judge had not properly turned his mind to home detention, notwithstanding that it was available in view of the Court’s conclusion that a sentence of less than two years’ imprisonment was appropriate. As Mr Smith submitted, however, it is clear from the sentencing notes that the District Court Judge was well aware that counsel for Mr Paikea sought a sentence of home detention and that the Judge turned his mind to that proposition. I refer to the deferral of sentencing by the Judge expressly for the purpose of the assessment of a residential address as being suitable for home detention, and the reference by the Judge to the recommendations in the two pre-sentence reports for imprisonment. A judge is not required in sentencing a
prisoner to describe or explain every element of his or her reasoning process.
3 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[30].
[30] It may be inferred from Judge McDonald’s references to the failure of Mr Paikea to comply with community-based sentences, and his apparently incorrigible refusal to obey orders disqualifying him from driving motor vehicles, that a sentence of home detention could not be imposed with any confidence in Mr Paikea’s willingness to comply with its terms.
[31] In any event, I am satisfied that, for the reasons just given and because of the seriousness of a 15th conviction for disqualified driving and a fourth conviction for driving while in excess of the legal alcohol limits, a sentence of home detention would not appropriately mark the Court’s disapproval of this offending and act as a deterrent to others. The courts should not be seen to treat lightly blatant and repeated disregard of court orders.
Was the length of imprisonment properly decided?
[32] I have also given careful consideration to Mr Cooke’s submission that, in determining the length of any term of imprisonment justified by the offending, the Judge adopted a starting point which was too high and failed to take proper account of the mitigating factors inherent in Mr Paikea’s injuries.
[33] It is not clear what starting point was adopted by the Judge because of the somewhat unorthodox approach which he took to allowing the discount for the guilty pleas. Conventionally, and logically, a sentencing court should take an appropriate starting point which reflects the seriousness and circumstances of the offending, apply any increase or decrease which may be justified by aggravating or mitigating personal factors, and then apply the appropriate discount depending on the time at
which and the circumstances in which the guilty pleas were made.5
[34] In the present case Judge McDonald said that he would give what he described as a “probably generous” 20 percent discount for Mr Paikea’s pleas, but he did so without identifying a starting point and without quantifying any increase or
decrease applied on the basis of aggravating or mitigating factors.6 It may be
5 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011]
1 NZLR 607 (SC); R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 (CA).
6 NZ Police and Department of Corrections v Paikea, above, n 1, at [20].
inferred from the end sentences imposed, however, that the Judge considered approximately 18 months’ imprisonment to be an appropriate sentence for driving while disqualified and seven to eight months as an appropriate term for driving with excess blood alcohol, before applying the 20 percent discount.
[35] The maximum penalty for a third or subsequent conviction of driving while disqualified and a third or subsequent conviction for driving with an excess level of alcohol is imprisonment for a term not exceeding two years or a fine not exceeding
$6,000.7 I take into account the aggravating factor that Mr Paikea had been
sentenced leniently on his third conviction for driving with excess alcohol content only seven weeks prior to this offending, and that he was fortunate to escape conviction on that occasion of driving while disqualified. Bearing in mind also the long list of convictions for driving while disqualified over a period of less than
20 years, a combined period of just over two years’ imprisonment before the plea discount was within the range available to the Judge on a proper application of totality principles.
The effect of the fresh medical evidence
[36] I consider, however, that if Judge McDonald had been privy to the medical information available to this Court on appeal he is likely to have considered the deterrent rationale for such sentences to have been met in part by the constant reminder to Mr Paikea of the cause of his debilitating injuries. It is true that, to a degree, Mr Paikea brought the consequences upon himself but I acknowledge the force of Mr Cooke’s point that the circumstances of this case are somewhat removed from those in R v Mako where the Court was unsympathetic towards an appellant who had suffered gunshot wounds as a result of raising a rifle to shoot at a
policeman. 8
[37] In R v Potter the Court of Appeal held that the loss of a hand by an offender who lit a stick of explosive, intending to throw it at another person, warranted a
reduction in sentence on the basis of the long-term disability resulting from the
7 Land Transport Act 1998, ss 32(4) and 56(4).
8 R v Mako [2002] NZLR 170 (CA).
injury and its short term significance in relation to the impact of prison on the appellant.9 Similar considerations apply here. In the particular circumstances of this case, I consider that a starting point of 15 months’ imprisonment on the charge of driving while disqualified would have been appropriate, taking into account aggravating and mitigating factors, before the application of the discount for a guilty plea.
Conclusions
[38] In summary, I conclude that Judge McDonald was entitled to take the approach he did both to the type of sentence and the length of the terms of imprisonment to be imposed, and that the discount of 20 percent for a guilty plea was fair to Mr Paikea. I have also concluded, however, that the recent medical opinion explaining the effect of Mr Paikea’s injuries on his immediate and longer term prospects justifies a modest reduction in the sentence imposed.
Result
[39] For these reasons, I allow the appeal in part by quashing the sentence of
14 months’ imprisonment for driving while disqualified and imposing in its place a term of imprisonment of 11 months. The cumulative sentences of six months’ imprisonment for driving with excess blood alcohol and the cumulative sentence of three months’ imprisonment in substitution for the earlier sentences of community- work and supervision remain undisturbed.
[40] The end result is that the total effective end sentence to be served by the appellant is reduced to one of 20 months’ imprisonment.
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Toogood J
9 R v Potter (1994) 12 CRNZ 109 at 113.
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