Pio v Police HC Hamilton CRI-2011-419-000042

[2011] NZHC 2058

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000042

JULIAN EDWARD PIO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 August 2011

Counsel:         G A Walsh for the Appellant

R B Annandale for the Respondent

Judgment:      9 August 2011

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 9 August 2011 at 9.00 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     G A Walsh P O Box 1322 Waikato Mail Centre Hamilton 3240 for the Appellant

Solicitors    Almao  Douch  P  O  Box  19173  (DX  GP20023)  Hamilton  3244  for  the

Respondent

PIO v POLICE HC HAM CRI-2011-419-000042 9 August 2011

[1]      In the District Court at Hamilton, Julian Edward Pio received sentences of imprisonment that total 20 months’ imprisonment.  In addition, the parole period was extended for six months beyond the sentence expiry date, with specific directions imposed.

[2]      Mr Pio appeals on the basis that the decision was wrong in fact and law and the sentence manifestly excessive.  The police oppose the appeal.

[3]      Mr Pio pleaded guilty to and was convicted of the following offences:

a)        Two  charges  of  driving  whilst  disqualified,  third  or  subsequent offence;

b)        Unlawful taking of a motor vehicle;

c)        Wilful damage;

d)       Careless driving; and

e)        Three charges of breach of release conditions.

Facts

[4]      One of the charges of driving whilst disqualified, third or subsequent offence occurred on 26 March 2010 when Mr Pio was found by police driving a motor vehicle on Hukanui Road, Hamilton.  When stopped by police, his explanation for driving was that he enjoys driving and so found it hard not to drive.

[5]      In May 2010, while on bail for the March offending, Mr Pio committed another offence of driving whilst disqualified, third or subsequent offence, as well as unlawful taking of a motor vehicle, wilful damage and careless driving.  The facts of this offending are as follows.

[6]      Overnight, between 21 May 2011 and 22 May 2011, a 2011 Keeway scotter was stolen from a Hamilton address.   It was near new, valued at $3,000, and the property of the complainant.

[7]      On 23 May 2011, around 1.00 pm, police saw Mr Pio riding on the stolen scooter.  The ignition had been destroyed, and Mr Pio intentionally crashed it into another scooter, being ridden by an associate.   He was revving the scooter excessively, causing it to skid on the grass, which caused a large amount of damage to the grass over the large area within the park.

[8]      Upon seeing the police, Mr Pio fled on the scooter at speed, riding over both the grounds of the park and footpaths.  This occurred during a school cross-country, when students were sharing the footpaths.

[9]      Mr Pio dumped the scooter into a nearby creek and continued fleeing on foot. He was located less than a kilometre away and was arrested.  He admitted to riding the scooter, but stated that he had found it in the park.

[10]     Regarding the three breaches of release conditions, Mr Pio was released from Waikeria Prison on 15 February 2011.  He was subject to 352 days of “conditions of release” imposed on 12 October 2010 at the Hamilton District Court following his conviction for breach of Court release conditions and burglary.   On 16 February

2011, he was given a written instruction to report to Community Probation Services on 23 February 2011 at 11.00 am.  On that day he failed to report as required and he failed to contact Community Probation Services to provide an explanation for his non-reporting.  On 8 March 2011, Mr Pio was given a written instruction to report to Community Probation Services on 17 March 2011.  Again, he failed to report on that day or contact Community Probation Services and provide an explanation for the failure to report.  On 29 March 2011, he was given a written instruction to be present at his reported address on 31 March 2011 for a home visit.  On that day he failed to present himself as instructed.   He also failed to contact Community Probation Services to offer an explanation.

District Court judgment

[11]     The Judge noted Mr Pio’s many prior convictions, 11 of which are driving while  disqualified,  despite  the  fact  that  he  is  only  24  years  old.    The  Judge considered that community-based sentences were not an option.

[12]     The Judge grouped the offending into two categories: first, the offences of driving whilst disqualified, unlawfully taking a motorvehicle, wilful damage and careless use of a motorvehicle; and secondly, the breaches of release conditions.

[13]     The Judge adopted concurrent sentences for each offence in each category but distinguished each category by making the sentences for the second category (breach of release conditions) cumulative on the sentences imposed for the first category.  Thus, the assessment of his reasons falls into two parts.

First group of offences

[14]     The  Judge  did  not  approach  the  sentencing  in  a  way  that  fits  with  the Sentencing Act 2002 or the approach set out in Taueki [2005] 3 NZLR 372. Thus, the Judge did not identify a lead offence, a starting point or uplifts to take account of the other offending. The Judge did not quantify the discount he gave for a guilty plea. Instead, the Judge appears to have taken the totality of the offending in the first category into account and concluded that an appropriate sentence reflecting the gravity of all the offending was a sentence of 18 months’ imprisonment, which he then discounted to 14 months’ imprisonment to take into account early guilty pleas. A discount of this nature is approximately 20 per cent.

[15]     It is not clear to me how the Judge dealt with the careless use charge.  At [8] of the sentencing notes he states that Mr Pio is convicted of that charge and disqualified from holding or obtaining a driving licence for three months from the date of the sentencing.  However, at the appeal hearing, counsel for Mr Pio provided me with an unsigned copy of the warrant for commitment for sentence of imprisonment.  The warrant records a sentence of three months’ imprisonment for

this offence.   Conviction on a charge of careless use of a motor vehicle does not support a sentence of imprisonment.  It is difficult to reconcile the warrant with the sentencing notes.   To remove any doubts, I propose to allow the appeal on the sentence for careless use by convicting and discharging Mr Pio on the offence of careless use of a motor vehicle.

[16]     In Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009, I referred to the approach to take regarding appeals against sentence post the Sentencing Act.   I noted the grounds on which this Court can, on appeal, vary or quash a sentence: see s 121(3)(b) of the Summary Proceedings Act 1957 and the comments in Adams On Criminal Law Sentencing at [SAB18], citing authorities in which the Courts have recognised that a sentence may be overturned because it is based on a wrong principle: see R v Finau (2003) 20 CRNZ 333 (CA); I also referred to  Heath   J’s  comments   in   M   v  Police   HC   Auckland   CRI  2004-404-440,

10 December 2004, particularly from [43]-[45]:

[43]      A significant feature of the Sentencing Act 2002 is the provision of a framework for analysis for Judges who sentence offenders.  The framework emphasises the general desirability of consistency in sentencing: s 8(e) Sentencing Act 2002.

[44]      Offenders and victims may feel a sense of grievance if a Judge fails to deal appropriately with factors requiring attention and an appellate Court simply endorses the Judge’s end result on the basis that a reasonable Judge could have come to that conclusion using a proper methodology.

[45]      In my view, the correct approach on appeal is to consider the process by which the Judge reached the end sentence.  If there were material errors in the Judge’s approach the appellate Court should treat the sentencing process as having miscarried and sentence afresh.   I adopt, in that regard, what was said in R v Finau (2003) 20 CRNZ 333 (CA) at 337.

[17]     Counsel for the Police referred me to the Court of Appeal’s decision in R v Peters CA12/03, 14 May 2003, at [13], where the Court of Appeal expressed the view that the issue of whether a sentence is manifestly excessive, or manifestly inadequate, or inappropriate must be examined by looking at the sentence actually passed rather than the process by which it was reached:

[T]he issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached.  Thus, if  a  sentence  might  be  a  product  of  a  starting  point  which  it  is  itself

manifestly excessive but is the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this  court  will  be  disinclined  to  intervene  through  concern  over  any particular component.

[18]     I do not consider what was said in R v Peters to be at odds with the comments of Heath J in M v Police.  In Peters, the Court of Appeal was dealing with an appeal based on the sentence being manifestly excessive, whereas in M v Police, Heath J was referring to the different appeal ground of the sentence being wrong in principle. The  framework  of  the  Sentencing  Act  means  that  where  a  sentencing  judge materially errs in sentencing methodology by materially departing from the statutory process, the sentence arrived at may be so wrong in principle that it is open to appeal on that basis.  Further, as recognised in Peterson at [3], a sentence that is reached through a process that is wrong in principle is likely to result in a sentence that is manifestly excessive.

[19]     However,  where  the  end  sentence  falls  within  the  range  of  appropriate sentences for the offending, there is no logical basis for an appellate court to intervene.  In such circumstances, it can be said that whatever errors the sentencing judge may have committed are not material errors, as they have not resulted in a sentence that is so wrong in principle that it should be set aside on appeal.

[20]     In the present case, I consider that a sentence of 18 months’ imprisonment for the offences in the first category is not manifestly excessive.  The offence of driving whilst disqualified, third or subsequent offence carries a maximum sentence of two years’ imprisonment.  Here, there were two such offences, the second within three months  of the first.    There was  no  reasonable  explanation  or excuse for either offence.  Mr Pio simply could not contain his wish to drive.  On a Taueki approach, the Judge could have taken the two disqualified driving offences as the lead offences and adopted a starting point of 12 months’ imprisonment.   He could then have uplifted  the  sentence  by  six  months  to  take  into  account  the  other  offences committed at the same time as the disqualified driving in May 2010.

[21]     On this approach, account would still need to be taken of aggravating features relating to the offender.  Given Mr Pio’s extensive criminal history, including the 11 previous driving while disqualified offences, I consider that the Judge could easily

have added a further uplift of two months to three months’ imprisonment.   This would have brought the sentence to 20 to 21 months before a discount for an early guilty plea.

[22]     The 20 per cent discount the Judge gave (see [14] herein) is within the range of  discounts  available  for  an  early  guilty  plea.    Further,  following  a  proper sentencing methodology that shows a starting point for the lead offence, uplifts for additional  offending  and  subsequent  allowance  for  mitigating  features  of  the offender (which by my calculation would result in a sentence of 20 to 21 months’ imprisonment), a reduction to an end sentence of 14 months’ imprisonment brings the discount for a guilty plea closer to 25 per cent, which is the maximum allowed by Hessell v R [2010] NZSC, 135, [2011] 1 NZLR 607.

[23]     In Peterson, I allowed an appeal against sentence on the ground that the sentence was wrong in principle and manifestly excessive.  In that case, there was no reasoning to support the sentencing outcome, and the sentence that was reached was unsupportable in the circumstances of that case.  Here, I consider the outcome is well within the range of available sentences, and indeed, if anything, it is lenient.  Given the nature of the offending and the aggravating features relating to the offender, I do not consider that the Judge’s failure to  adopt a Taueki approach or one that is consistent with the Sentencing Act is fatal to the end sentence.  There is therefore no material error that I can discern.

Second group of offences

[24]     I now turn to consider the sentence imposed for the second  category of offences.  Here, the Judge adopted a sentence of eight months’ imprisonment for the three breaches of release conditions.  The maximum penalty for a breach of release condition is one year’s imprisonment.

[25]     Mr Pio submitted that the breaches were not serious breaches; and that his failure to report on two occasions and to be present for the home visit on the third occasion were minor transgressions.   He submitted, therefore, that the more appropriate approach would have been for the Judge to adopt a six month sentence

for the three charges, with a reduction to three months to reflect the guilty plea.  On this occasion, there were three breaches, all within a short space of time following Mr Pio’s release from prison on 16 February 2011.

[26]     At [9] of the judgment, the Judge notes his concern with Mr Pio’s failure to comply with the release conditions.   The Judge refers to the purpose of release conditions as being:

a)        To enable a reasonable, formal and hopefully safe transition from prison and the community;

b)        To protect the public from the risk of Mr Pio’s further offending; and c)       To protect from risk of further offending.

[27]     The Judge does not  give reasons  for why he has adopted eight months’ imprisonment to reflect the totality of the three charges.   At [10], he simply says: “[t]hose three charges have been admitted.  An overall totality for those would be a sentence of eight months’ imprisonment”.   He does not say why or how he has reached  eight  months’  imprisonment.    Whilst  I  am  able  to  understand  how  he reached 18 months’ imprisonment for the first group of offences, I have difficulty in seeing why he considered that eight months’ imprisonment was appropriate for the breach of release conditions.

[28]     On the other hand, respect for parole and release conditions is important.  The Judge may well have reached the view that Mr Pio was someone who was disrespectful of all court orders and, therefore, a sentence of some severity should be imposed for the three breaches of release conditions.

[29]     The  Crown  has  referred  to  the  decision  in  Johnson  v  Department  of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010, where this Court dismissed an appeal against a sentence of six months’ imprisonment in relation to two charges of breaching parole release conditions.  In reaching this view, Allan J

considered a number of other decisions of this Court in which it had viewed breaches of release conditions as being significant.

[30]     Counsel for Mr Pio sought to distinguish between breach of parole conditions and breach of release conditions.  The distinction he sought to make was that release conditions are imposed following release from short sentences of imprisonment (two years or less) and parole conditions are imposed on release from other sentences of imprisonment.   Counsel for Mr Pio contended that a sentence of imprisonment in excess of two years demonstrated more serious offending and, therefore, it was more important that those offenders comply with their parole conditions.

[31]     Whilst I am not persuaded by this argument, I propose to confine my analysis to looking at a comparable case of a breach of release conditions.   In McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007, John Hansen J, one of the cases  referred  to  in  Johnson,  the  Court  dealt  with  an  appeal  against  sentences imposed for two breaches of release conditions.  I propose to focus on this decision as it deals with like offending.

[32]     John Hansen J described a sentence in which the District Court Judge had adopted a starting  point,  for two  breaches  of release  conditions,  of 12  months, reduced to eight months for a guilty plea, as being a stern sentence at the top of the available range, but not manifestly excessive.  John Hansen J noted that a number of Mr McLean’s past offences could properly be viewed as evidence of a refusal to acknowledge court orders.

[33]     In Mr Pio’s case, he has previous offences for breaching release conditions on 26 December 2007 and on 22 March 2005.  Thus, his three current breaches must be viewed against a background of two earlier such breaches.  The starting point of eight months reduced to six months, in view of the guilty pleas, falls within the range of available sentences and is consistent with the outcome in McLean.  Indeed, here there are more offences than in McLean and the overall sentence is less.  On a Taueki approach, the sentencing could have been approached by adopting a starting point of six months for the two offences, with an uplift of two months to reflect the two

earlier offences.  Thus, the term of six months’ imprisonment for the three breaches

of release conditions is not manifestly excessive.

[34]     As  the  sentence  for  the  breaches  of  release  conditions  was  imposed cumulatively on the sentences for the first group of offences, the total period of imprisonment came to 20 months.  In terms of the totality principle, it is necessary to stand back and view the total amount of imprisonment: see R v Xie [2008] NZCA

111.

[35]     Looked at in total, against the background of all the offending, the sentence of 20 months’ imprisonment is not manifestly excessive.   The sentences for the breaches of release conditions are stern but not as stern as they were in McLean.  The sentences for the first category of offences are lenient.  Here, the combination of a lenient group of sentences, coupled with sentences which, although stern, are not at the top of the available range, does not result in a total sentence that offends the totality principle.

[36]     I am satisfied that the sentences imposed on Mr Pio fall within the range of available sentences and that, with one exception, there is no basis for this Court on appeal to vary or quash the sentences.  The exception relates to the confusion over whether or not a sentence of three months’ imprisonment has been imposed for careless use of a motor vehicle.

Result

[37]     I propose to allow the appeal in the limited sense that insofar as a sentence of imprisonment may have been imposed for careless use, it is ultra vires and therefore open to be quashed on this ground.  In substitution, I direct that Mr Pio is convicted and discharged of that offence.  Otherwise, the appeal is dismissed.

Duffy J