Pakau v Police

[2024] NZHC 1884

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000013

[2024] NZHC 1884

BETWEEN

BEVAN WHARERANGI PAKAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 July 2024
Counsel:	D M Goodlet for Appellant H Bullock for Respondent
Judgment:	10 July 2024

ORAL JUDGMENT OF RADICH J

[1]    Bevan Pakau appeals against a sentence of 28 months’ imprisonment1 imposed on 20 March 2024 by Judge Greig for four charges of driving while disqualified (all aggravated in that they were a third or subsequent driving while disqualified charge),2 two charges of failing to stop,3 one of which was aggravated,4 and one charge of failing to answer District Court bail.5 In addition, the Judge disqualified Mr Pakau from driving for 18 months from 21 September 2023 (when Mr Pakau went into custody).

1      Police v Pakau [2024] NZDC 6216 [Sentencing Decision].

2      Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty of two years’ imprisonment and mandatory disqualification for one year.

3      Sections 52A(1)(a)(ii) and 114(2); maximum penalty of a $10,000 fine.

4      Sections 52A(1)(a)(ii), (3) and (6) and 114(2); maximum penalty of a $10,000 fine and mandatory disqualification for six months.

5      Bail Act 2000, s 38.

PAKAU v NEW ZEALAND POLICE [2024] NZHC 1884 [10 July 2024]

What happened?

The offending

[2]    On 2 July 2022, Mr Pakau was disqualified from driving for 12 months from 8 December 2022. He went on to commit the driving offences that are the subject of this application while he was subject to that disqualification.

[3]    On 8 June 2022, police found Mr Pakau sitting alone in the front of a vehicle after seeing the vehicle driving. Mr Pakau said at the time that he knew he was disqualified but drove anyway because it was the easiest way to get around. This led to a charge of driving while disqualified.

[4]    On 24 August 2023, Mr Pakau was driving and police signalled for him to stop. Instead, he kept driving, after police had turned on their lights and sirens, he accelerated to past the 50km/h speed limit, crossing the centre line five times. Police stopped the pursuit over concern about the manner of his driving. This led to the charges of driving while disqualified and failing to stop.

[5]    On 5 September 2023, Mr Pakau was driving when the police signalled for him to stop by turning on their lights. Mr Pakau accelerated away. He drove over road cones and roadworks. Police stopped the pursuit, again over concern about the manner of his driving. This conduct led to the charges of driving while disqualified and failing to stop.

[6]    On 11 September 2023, Mr Pakau was driving a vehicle which had stopped at a red traffic signal. Police, in a patrol car, recognised him and signalled for him to pull over using its lights. Mr Pakau pulled left onto a grass area and then accelerated away from police before pulling back onto the road and continuing through roadworks at speed. This led to a charge of driving while disqualified. A charge of failing to stop was withdrawn.

[7]    Mr Pakau also breached his bail conditions on 26 July 2023 by failing to answer, leading to one charge of breach of District Court bail.

Criminal history

[8]    Mr Pakau’s criminal history is extensive. He has 190 previous convictions. His offending began when he was 14 years of age. Mr Pakau has 14 previous convictions for driving while disqualified. There were three convictions for Mr Pakau in 1998, one in 1999, one in 2000, and one in 2005. Since then, and after a significant pause, there was an increase in the frequency of convictions on driving while disqualified charges. Events across 2021 resulted in five convictions. The most recent offending involved three separate incidents during 2022, the last of which was in July of that year. Mr Pakau was sentenced to one year and three months’ imprisonment for two of those charges in January 2023. It appears that he entered custody soon after July 2022, which may say something for the gap in his offending between then and June of 2023.

[9]    Mr Pakau has two previous convictions for failure to answer District Court bail.

The District Court judgment

[10]The Judge began by summarising the circumstances of Mr Pakau’s offending.6

[11]   He went on to describe Mr Pakau’s criminal history7 and the pre-sentence report, which provided advice that Mr Pakau was at a very high risk of reoffending and at a high risk of causing harm if he continued to reoffend in the same way; that he had entrenched negative views about the police;8 that he views driving as necessary for his income stream;9 that he has a poor history of compliance with community- based sentences;10 and that his personal circumstances include an upbringing involving violence and crime and some involvement with substance abuse.11

[12]   The Judge found that community safety was a priority in sentencing Mr Pakau due to the high risk of harm to others in his offending and as a result of his repeated

6      Sentencing Decision, above n 1, at [3]–[7].

7      At [8]–[10].

8      At [11]–[17].

9 At [16].

10 At [18].

11     At [22]–[27].

offending.12 He appeared to set a global starting point of 42 months’ imprisonment, taking the, to use the Judge’s words, “driving on 8 June” incident, which he said included driving while disqualified and failing to stop, as the lead charge:

[32]   For the driving on 8 June, taking into account the aggravating factor  of the way you drove, taking off from the police, two years’ jail. For the other three times of driving whilst disqualified including the time when you took off from the police, I add nine months to that. So that is two years nine months. For failing to appear three months on top of that. Then six months for all of your convictions. I have got to be careful there because there is a danger of double counting given that a lot of those are for driving whilst disqualified, but a lot of those are also for breaches of sentences. So that is three and a half years or 42 months.

[13]   The Judge gave discounts of 15 per cent for Mr Pakau’s guilty plea and 15 per cent for, as the Judge put it, the “very difficult childhood” he experienced.13 He applied the resulting 30 per cent discount to set the global starting point at 42 months, resulting in a final sentence of 28 months’ imprisonment (the 30 per cent discount would have resulted in a final sentence of 29 months’ imprisonment, but the Judge appeared to acknowledge that he was giving an extra discount, saying “in fact I am giving you more credit than that”).14 In addition, the Judge disqualified Mr Pakau from holding a licence for 18 months from 21 September 2023.15

Arguments on appeal

[14]   For Mr Pakau, it is said that the Judge erred in fact and, regardless of that, set a sentence that was manifestly excessive. It is said that:

(a)the Judge erred in fact because he appeared to think there were three, rather than two, failing to stop convictions;

(b)he erred in applying a starting point of two years’ imprisonment in relation to one charge, which was excessive;

12     At [29]–[30].

13     At [33] and [34].

14 At [34].

15 At [35].

(c)he erred in applying uplifts of 13 months’ imprisonment for other charges, which was excessive;

(d)he erred in applying an uplift of six months for “other non driving while disqualified convictions”; and

(e)he erred in applying an uplift of three months for the charge of failing to appear.

[15]   The Crown does accept that the Judge erred in a statement of fact in the judgment but says that other parts of the judgment make it clear his overall awareness of the charges he was sentencing Mr Pakau for were accurate, and that as a result the error was not material. Otherwise, it says that the sentence was not in error and was not manifestly excessive in light of Mr Pakau’s history of convictions for driving while disqualified and breaching bail.

[16]   The Crown, in its written submissions, referred to two cases in particular which it regards as being similar on the facts, and that is so:

(a)Apiata v Police, where a starting point of 36 months’ imprisonment for four charges of driving while disqualified (20th to 23rd convictions for driving while disqualified) was upheld on appeal;16 and

(b)Barwell v Police, where a starting point of 42 months was taken on appeal for four charges of driving while disqualified (10th to 14th convictions for driving while disqualified) and “associated offending”, as the Judge put it, including failing to stop and dangerous driving.17

16     Apiata v Police [2016] NZHC 3119.

17     Barwell v Police [2019] NZHC 2071.

Approach to sentencing appeals

[17]   Sentencing appeals are governed by s 250 of the Criminal Procedure Act 2011. In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.18 The Court does not start afresh or simply substitute its own opinion for that of the sentencing Judge.19 Rather, the appellant must show there to be a material error before the Court goes on to form its own view of the appropriate sentence.20 The Court will not generally intervene unless a sentence is manifestly excessive21 and whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.22

[18]As noted in Johnson v New Zealand Police, the error principle recognises:23

… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.

[19]   Accordingly, the issue for determination is whether there has been a material error that means the sentence appealed was manifestly excessive.

Sentencing methodology generally

[20]   In sentencing Mr Pakau, the Judge was required to have regard to the purposes and principles of the Sentencing Act 2002. The sentence should promote in Mr Pakau a sense of responsibility for the harm that he has caused and to deter other persons from committing the same or similar offences.

[21]   In reaching the final sentence, the Judge must first have calculated a starting point, incorporating adjustments for any aggravating and mitigating factors of the

18     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

19 At [30].

20 At [30].

21 At [35].

22     At [30]–[36].

23     Johnson v New Zealand Police [2023] NZHC 3748.

offending, and then have incorporated the aggravating and mitigating factors that are personal to the defendant.24 Where there are multiple charges resulting in cumulative sentences of imprisonment, as there are here, the sentence must abide by the totality principle in that the total period of imprisonment must not be wholly out of proportion to the gravity of the offending.25

Analysis

[22]   It is unclear in this case from the Judge’s comments at [32] of the Sentencing Decision whether he added a six-month uplift to the starting point as a reflection of Mr Pakau’s previous driving while disqualified convictions, or as a reflection of all of his convictions together. It is also unclear whether he added the uplift for previous convictions as going to a global starting point to which any further uplifts or discounts would be applied, or as an aggravating factor separate to the starting point. I favour the former interpretation of the Judge’s words given he applied Mr Pakau’s discount for his guilty plea to a global starting point that included the uplift for previous convictions.

[23]   I cannot accept the submission for Mr Pakau that the Judge sentenced him for three, rather than two, failing to stop charges. I think it is clear enough from the Judge’s words that he had three in mind. It is clear that the Judge erred in referring to the “driving on 8 June” as an incident that included a failure to stop. However, he then made reference to only one other incident of failure to stop. While the Judge made an error by referring to an incorrect date for the lead offending, he sentenced Mr Pakau on the correct charges and accordingly the error was not material.

[24]   Each of Mr Pakau’s remaining four grounds of appeal alleges ultimately that the end sentence reached was manifestly excessive. He does not challenge the discounts given for the guilty plea or for the personal circumstances of Mr Pakau.

[25]   I go about the analysis from this point by reviewing the range of starting points that were available to the Judge.

24     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

25     Sentencing Act 2002, s 85; R v Barker CA57/01, 30 July 2001 at [10].

[26]   There is no tariff case for the charge of driving while disqualified. In Opetaia v Police, Moore J observed two approaches that are to be taken into account in sentencing on the charge:26

(a)setting a starting point with reference to the instant offending and then uplifting it for previous offending including previous convictions for driving while disqualified;27 and

(b)setting a starting point with reference to the lead driving while disqualified offence (which will be the most recent one), accounting for any previous disqualified driving convictions in doing so, before going on to add uplifts for any additional charges of driving while disqualified and without making a separate uplift for previous convictions of driving while disqualified.28

[27]   Moore J saw the second approach as having greater judicial support but said that the adoption of either approach should, in theory, lead to the same result.29 And as the Court said in Jenkins v Police, either approach assumes that previous driving whilst disqualified convictions are subsumed in the analysis in setting the global starting point – they are not counted as personal aggravating factors which are to be applied as a percentage uplift on the starting point using the Moses methodology.30 This is so because the number of previous convictions for driving while disqualified or while suspended is highly relevant in assessing the starting point for this kind of offending.31 As explained by Mander J in Sykes v Police:32

Intrinsic to an offence of driving while disqualified being a third or subsequent offence is the recidivism inherent in the offender’s conduct. The seriousness of the offence and the need to set a higher starting point derives from the repetition of the prohibited driving. The seriousness of the offender’s conduct

26     Opetaia v Police [2015] NZHC 2532 at [36]; endorsed in Jenkins v Police [2018] NZHC 2055 at [15].

27     See, for example, Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009, endorsed in Keenan v Police [2014] NZHC 1894.

28     See, for example, Drinkwater v Police [2013] NZHC 1036.

29     Opetaia v Police, above n 26, at [36].

30     Jenkins v Police, above n 26, at [15]; Moses v R, above n 24, at [45]–[47].

31     Opetaia v Police, above n 26, at [38].

32     Sykes v Police [2014] NZHC 2642 at [10].

directly relates to the number of previous occasions the driver has flouted disqualification orders.

[28]   The rationale here reflects also Parliament’s intention in prescribing greater maximum penalties for a third or subsequent offence in s 32 of the Land Transport Act 1998. However, in assessing the relevance of previous driving while disqualified convictions, it may be necessary to consider the period of time between the offending that is the subject of the sentencing decision and previous like offending, and the period over which the previous offending occurred.33

[29]   The authorities cited by the Crown are on point here, so I turn to consider them briefly. In Apiata v Police, the District Court Judge set a starting point of 36 months’ imprisonment, taking a cumulative approach of nine months for each charge of driving while disqualified.34 On appeal, Clifford J upheld that starting point but used a different methodology. He took a starting point of 12 months’ imprisonment for the lead charge before adding uplifts of six months for each of the other three driving while disqualified charges. He then added two months to the global starting point for a charge of failing to give particulars and to reflect the remittance of fines (which the District Court Judge had added as an uplift after setting the starting point) and he added four months to reflect the defendant’s history, in that case, of non-driving offending, especially his history of failure to comply with non-custodial sentences. Mr Apiata’s offending did not involve any element of public endangerment or dangerous driving.

[30]   In Barwell v Police, the District Court Judge took an initial starting point of two years for the lead driving while disqualified charge before uplifting it: by three months, to reflect the dangerous driving charge; by a further six months, to reflect the totality of the remaining driving while disqualified charges; and by a further 12 months, to reflect Mr Barwell’s aggravating history of driving while disqualified.35 This starting point was upheld on appeal,36 although Jagose J preferred a methodology of taking a 21-month starting point for the lead charge before adding uplifts of four to six months for each further driving while disqualified charge, three months for

33     Apiata v Police, above n 16, at [19].

34     Apiata v Police, above n 16.

35     Barwell v Police, above n 17.

36     Jagose J made a deduction of one month from the District Court Judge’s starting point to reflect incorrect addition, but otherwise upheld the starting point.

dangerous driving, with no additional uplift for previous convictions, resulting in a range of acceptable starting points of between 36 and 42 months.37

[31]There are other cases that are relevant and to which regard may be had:

(a)in Hawthorne v Police, a starting point of 16 months was imposed for the offender’s 16th conviction of driving while disqualified, even though the offender did not endanger the public in any way;38

(b)in Garlick v Police, a starting point of 20 months was imposed for the offender’s 17th conviction of driving while disqualified, although the high starting point in relation to the single charge reflected that the offender had had the car for two weeks while disqualified and presumably driving it during that time;39

(c)in Tua v Police, a starting point of 18 months was upheld on appeal for the offender’s 18th conviction of driving while disqualified despite previous convictions being historical;40 and

(d)in Stacey v Police, a starting point of 18 months was imposed for the offender’s 21st conviction of driving while disqualified when there had been near-continuous offending for 20 years, even though it did not involve failing to stop or endangering public safety in any way.41

[32]   It seems to me that, for an offender’s 18th conviction for driving while disqualified, a starting point of between 14 and 18 months appears to be the most appropriate in light of the cases I have referred to – excluding any element for an uplift of endangering the public, such as (depending on the circumstances) failing to stop.

37 At [10].

38     Hawthorne v Police [2016] NZHC 243 at [15].

39     Garlick v Police [2016] NZHC 572.

40     Tua v Police [2013] NZHC 2994.

41     Stacey v Police [2018] NZHC 3280.

[33]   With all of this in mind, I need to consider whether there is a material error in the Judge’s approach to such an extent that the sentence imposed is manifestly excessive. To do that, I start by considering an approach that would be in line with the authorities and with the principles I have mentioned.

[34]   Taking Mr Pakau’s most recent conviction, on 11 September 2023, as the lead charge, an initial starting point of 15 months would in my view be appropriate to reflect that this was his 18th conviction for driving while disqualified, in circumstances in which the majority of his prior convictions arose recently, in the two years prior to the present offending. Further uplifts of four to five months for each further driving while disqualified charge might then be appropriate. As an aside, I observe that this can be compared to Apiata v Police, where six-month uplifts for each further charge were added but the initial starting point taken here is higher despite the offender in Apiata having 22 previous convictions for driving while disqualified. A further uplift of five months would then be appropriate to reflect the totality, having regard to the element of public endangerment that arose on the facts of the two driving while disqualified charges led to the two charges of failing to stop.42

[35]   Finally, it is said for Mr Pakau, that a three-month uplift for the charge of failing to answer bail was excessive, as was the six-month uplift for his previous convictions. I believe that the Judge’s use of the two uplifts together was excessive when Mr Pakau’s previous convictions of driving while disqualified are significantly more relevant to his culpability than to his other historical convictions and are accounted for in setting the initial starting point for the lead driving while disqualified charge. An uplift of two months might be appropriate to reflect the charge of failing to answer bail given Mr Pakau’s history of non-compliance with court orders and bail conditions. An additional uplift to reflect Mr Pakau’s previous convictions could be seen as double-counting and would not in my view be appropriate in light of the totality principle.

42 A charge of failing to stop (third or subsequent) carries a higher maximum penalty (two years’ imprisonment) than dangerous driving where no injury or death was involved (three months’ imprisonment), as the offender was charged with in Barwell v Police, above n 17); compare s 32(4) with s 35(2)(a) of the Land Transport Act.

[36]   An appropriate global starting point for Mr Pakau’s offending would be within the range of 34–37 months’ imprisonment. Taking the highest starting point within that range and applying the discount of 30 per cent for his guilty plea and background factors, which are not challenged, the end sentence would be 25.9 or, rounded down, 25 months’ imprisonment.

[37]   In light of that assessment, I am drawn to conclude that the sentence reached by the Judge was manifestly excessive. I would allow the appeal and reduce the sentence reached by three months to a total of 25 months’ imprisonment. Doing so is not in my view mere tinkering: it amounts to roughly a 10 per cent reduction which is significant in relation to the short length of the sentence.43

Conclusion

[38]   I would allow the appeal and substitute a sentence of 25 months’, or two years and one month’s, imprisonment.

Radich J

Solicitors/Counsel:

D M Goodlet, Whanganui for Appellant

Crown Solicitor, New Plymouth for Respondent

43 See Johnson v R [2023] NZHC 2518, where a sentence was reduced by three months from two years and four months’ imprisonment to two years and one month’s imprisonment; and Safi v Police [2022] NZHC 1967, also where a sentence was reduced by three months from two years and four months’ imprisonment to two years and one month’s imprisonment.