R v Pikaahu
[2015] NZHC 2617
•23 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-218 [2015] NZHC 2617
THE QUEEN
v
TOMMY PIKAAHU
Hearing: 20 October 2015 Appearances:
M Downs for the Appellant
S Gray as Amicus CuriaeJudgment:
23 October 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 23 October 2015 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Crown Law, Wellington.
Public Defence Services, Auckland.
R v PIKAAHU [2015] NZHC 2617 [23 October 2015]
Introduction
[1] The Crown appeals against the decision of a District Court Judge to impose a sentence of 24 months’ intensive supervision and 150 hours of community work on one charge of driving with excess alcohol and one charge of driving while disqualified, both third or subsequent, on the grounds the sentence is manifestly inadequate and a term of imprisonment is required.
[2] The respondent, Mr Tommy Pikaahu, is unable to be located and a warrant for his arrest has been issued in relation to breaches of release conditions in connection with unrelated offending.1 The Crown has been unable to serve the respondent with a notice of appeal although sufficient attempts have been made. Counsel to assist the Court has been appointed to ensure the respondent’s position is adequately protected.
Background
[3] The respondent was stopped while driving on a road on 5 November 2015. He was at the time subject to indefinite disqualification from holding or obtaining a driver licence. Police carried out breath test procedures which revealed a breath alcohol reading of 775 micrograms of alcohol per litre of breath.
[4] The issue is not so much to do with the circumstances of the offending but that the respondent is a recidivist driving offender. He has 11 previous convictions for driving with excess breath alcohol and 19 previous convictions for driving while disqualified.
[5] A pre-sentence report dated 22 June 2015 assessed the respondent to be at a high risk of reoffending. He was described as being transient in nature and
constantly on the move. He did not appear to understand the consequences of his
1 A warrant for his arrest was issued by the Manukau District Court on 31 August 2015 in connection with a charge of failing to comply with release conditions. He was released from prison on 6 August 2014 in relation to convictions for violent offending. His release conditions were that he was to reside at a Maplesden Drive address and to report to the probation officer as required. He failed to report on 5 August 2015. His release conditions were due to expire on 6
October 2015.
offending. The report writer noted that the respondent has a violent relationship with his partner and other members of his family only when he is intoxicated. According to an earlier report, his family said that when he is sober, the respondent is considerate and rational and is unlikely to inflict harm on others but that his behaviour changes when under the influence of alcohol.
[6] The report noted that the respondent seemed to be non-compliant with any sentence and that, at the time of writing the report, the respondent deliberately misled the report writer by giving false addresses so that he could not be contacted and could remain non-compliant and unmonitored. A term of imprisonment was assessed to be the only appropriate outcome as compliance with any other sentence was seriously doubted by the writer.
[7] The Judge’s sentencing notes of 26 June 2015 show that the Judge adopted a starting point of two years but it is clear that the Judge had a sentence other than imprisonment in mind.2 The Judge acknowledged that the respondent has a drinking problem which needs to be addressed. His brother had recently passed away which, in the Judge’s view, provided hope for the respondent’s willingness to change. The matter had been stood down for three weeks to give more time in custody so that the
possibility of a sentence other than home detention was able to be seriously considered.
[8] The Judge accepted the respondent’s compliance with community based sentences has been poor in the past but was of the view that the circumstances would be different this time with intensive monitoring. The Judge listed a number of conditions, being:
(a) to refrain from possession or consuming alcohol or non-prescription drugs;
(b) to undertake and complete a recidivist drink-driving programme;
2 Noting that the respondent has in the past 17 years spent most of his time in and out of prison.
(c) to attend an assessment for alcohol rehabilitation and detoxification, and to attend and complete any recommended treatment;
(d) to stay at the address where he was instructed to stay; and
(e) to complete any other programmes and courses as directed.
Is there jurisdiction to hear the matter in the respondent’s absence?
[9] The first question is whether s 326(4) of the Criminal Procedure Act 2011 (“the Act”) enables the Court to deal with the appeal in circumstances where a party has absconded and is not even aware of the appeal. Section 326 provides:
326 Right of attendance at hearing
(1) This section applies to appeals and applications for leave to appeal under this Part.
(2) A party who is in custody is not entitled to be present at a hearing involving oral submissions unless the court gives leave for him or her to be present.
(3) However, a party who is in custody is entitled to present his or her case or argument in writing instead of by oral argument.
(4) The power of the appeal court to impose any sentence under this Part may be exercised in the absence of a party.
[10] Arguably, the section is intended to capture appeals other than ones where the party absconds. Subsections (2) and (3) deal with the entitlement of a party who is in custody and it may be that s 326, more generally, was drafted on the assumption that the party is able to be located.
[11] It is possible that, in drafting the section, Parliament had in mind appeals being brought by the defendant (with the effect that, if the appeal were successful, the sentence would be reduced in favour of the appellant). Crown appeals have the reverse effect. The need for a party to attend an appeal hearing may be distinguished in circumstances where the sentence imposed on appeal is higher than the one
originally imposed. However, unlike its predecessor,3 s 326 applies regardless of whether the party is the appellant or respondent.
[12] There is also the question of whether there is anything to be gained by imposing a sentence on an appellant which cannot be executed (assuming the appeal is successful).
[13] Section 326(4) specifically provides that an appeal court can impose any sentence in the absence of a party. I do not accept this applies only where the Judge, on appeal, has reserved the decision.
[14] Section 123 is also of assistance. It provides that a court (of first instance)4 must not sentence a defendant for an offence in category 2, 3 or 4 in the absence of a defendant. The value of s 123 is designed to ensure that defendants have the opportunity to have input into the sentencing process.5 The clear wording of s
326(4) is that an appeal court may impose any sentence in the absence of a party.6 It
must mean that Parliament was of the view that the policy concerns behind s 123 do not extend to appeals against sentence.
[15] Section 351 of the Act puts the jurisdiction question to rest. Relevantly, it provides:
351 Detention following appeal
(1) This section applies on—
(a) the determination of an appeal under this Part against conviction or sentence or on a question of law:
(b) the determination of an appeal under this Part against a finding of, or sentence for, contempt of court:
(c) abandonment of an appeal under this Part.
(2) If the convicted person is not in custody, a constable or officer of a prison may arrest the convicted person without warrant if, under the
3 Crimes Act 1961, s 395.
4 Section 123 must only apply to a court of first instance since the explicit wording of s 326(3) is that an appeal court may impose any sentence in the absence of a party.
5 R v Van Yzendoorn (2002) 19 CRNZ 632 (HC).
6 Hall’s Sentencing (online looseleaf ed, LexisNexis) at [APII.4.6]; Adams on Criminal Law
(online looseleaf ed, Brookers) at [CPA326.02].
determination appealed against or the determination of the appeal court, the person is liable to be detained to serve a sentence of imprisonment.
[16] If a convicted person is liable to serve a sentence of imprisonment as a result of the determination of the appeal court but is not in custody, then he or she is liable to arrest without warrant. Parliament can, therefore, be taken to have turned its mind to this situation, that is, that somebody not in custody is, on appeal, sentenced to imprisonment. Sensibly, Ms Gray conceded that there was not a strong argument to the effect that the Court does not have jurisdiction to proceed with the appeal.
[17] The next question is whether, given the Court has jurisdiction, it is appropriately invoked in the circumstances.
[18] I accept from the outset that there have been reasonable efforts to locate the respondent and serve him with notice of the appeal. They are:
(a) The Registrar attempted to serve notice of the appeal by sending it to
the respondent’s address, 12 Archs Road, Manurewa. On 4 August
2015, this was returned to the Registrar with the observation the mailbox had been closed.
(b)On 6 August 2015, the Crown served a memorandum of counsel and covering letter to 12 Archs Road, Manurewa which were returned to Crown Law with the notation, address “not known”.
(c) The Registrar sent the notice of appeal by courier to 1/16 De Blough Place, Manurewa, an address previously given by the respondent in connection with bail. The courier was informed the respondent had moved.
(d)The Crown identified two alternative addresses in response to the Registrar’s request. The 504J Great South Road, Papatoetoe, address was an older address and 20A Maplesden Drive, Clendon Park was the address at which the respondent was to reside in respect of the intensive supervision sentence at issue. (The respondent had
confirmed the address at his intensive supervision induction on 7 July
2015).
(e) The Police visited the Maplesden Drive address on 18 August 2015.
No one was home but there was mail addressed to the respondent there. The neighbours said the respondent was no longer resident at that address though his partner still was. The neighbours said they had not seen the respondent for some time. The officer left the notice of appeal, a Minute of Woolford J dated 7 August 2015 and a card with the officer’s contact details in the mailbox. There has been no contact by the respondent since.
(f) The Police returned to the same address on 14 September 2015. No one was home. That same evening, the Police visited the 504J Great South Road address but that address was vacant. The only other possible address, 12 Archs Road, Manurewa, does not appear to exist.
(g)A warrant for the respondent’s arrest was issued by the Manukau District Court on 31 August 2015 in connection with a charge of failing to comply with release conditions. The respondent was released from prison on 6 August 2014 in relation to a number of violent offending convictions. He failed to report on 5 August 2015. A letter from the probation service was left for the respondent directing him to report on 12 August 2015 at 10 am which he did not do.
[19] Relevant also is that the respondent gave the Police a false name and date of birth when he was stopped for this offending and that three warrants for his arrest have been issued on these charges: on the first call, on 5 March 2015, and on 9 April
2015.
[20] The respondent has an appalling history of non-compliance with court orders: nine convictions for failing to answer bail; six convictions for breaching a protection order; nine convictions for breaching sentences of periodic detention; two
convictions for breach of parole; one conviction for breaching community work; one conviction for breaching a supervision sentence; and one conviction for attempting to obstruct the course of justice.
[21] Even if the respondent were able to be located, he would undoubtedly be remanded in custody on this and his other charges and so he would not be entitled to be present at the hearing as of right unless the court gives leave for him to be present.7
[22] Added to that are the circumstances of the appeal, Mr Downs, who appeared for the Crown, submitted. The issues are not complex, the facts are settled and the strength of the appeal is highly relevant.
[23] Ms Gray opposed s 326(4) being invoked. She submitted that the principles of natural justice and the right to a fair hearing, as affirmed in s 25(a) of the New Zealand Bill of Rights Act 1990 (NZBORA), may require that the respondent be present for any quashing of the existing sentence and imposition of a different sentence. She submitted the Court would be at a disadvantage in proceeding in the respondent’s absence since the respondent’s motivation to address his alcohol problems cannot be assessed.
[24] An important consideration in favour of holding that a party may need to be present is if there is fresh evidence or new information on which counsel for the party will need to be instructed in presenting the case. However, the essence of this appeal is whether the sentence imposed, in light of the information before the Judge, was made in error and whether a different sentence should have been imposed. I am satisfied that the amicus curiae has advanced any submissions which could be made on the respondent’s behalf. The circumstances now at play (that the respondent is unable to be located) are relevant only in a background sense to the extent it supports
the Crown submission that a non-custodial sentence was not appropriate.
7 Section 326(2). But note s 326(3); a party who is in custody is entitled to present his or her case in writing instead of by oral argument.
[25] Furthermore, NZBORA concerns are not triggered, in my view. Section
25(e) guarantees the right to be present at trial and to present a defence. The court appointed amicus curiae is protecting the respondent’s interests. The Court has had the benefit of written submissions from her as well as her presence at and participation in the hearing.
[26] There is also the practical and public policy concerns of expeditious resolution of proceedings. The case, for reasons which will be set out below, will inevitably result in a successful appeal thus there is no reason to delay the matter any further. The Crown has taken considerable steps to bring notice of the appeal to the respondent. In circumstances where nothing more could be done, the criminal justice system must be seen to continue.
[27] My conclusion, therefore, is that it is appropriate for this Court to proceed in
the respondent’s absence.
Approach to appeals
[28] 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.
[29] In any other case, the Court must dismiss the appeal.8
[30] The Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly inadequate is to be examined in terms of the sentence given, rather than
the process by which the sentence is reached.9
8 Criminal Procedure Act 2011, s 250(3).
9 Ripia v R [2011] NZCA 101 at [15].
[31] Principles relevant to Solicitor-General appeals were set out by the Court of
Appeal in R v Donaldson:10
(a) the Court should not increase a sentence pursuant to a Solicitor- General’s appeal unless it is clear the sentence was manifestly inadequate or the trial Judge acted upon an error in principle;
(b)the considerations which justify an increase in sentence must be more compelling than those which might justify a reduction;
(c) care must be taken to ensure that the Court does not override the sentencing Judge’s discretion to take a merciful or rehabilitative approach, even in cases which would normally call for a deterrent sentence, particularly if the sentencing Judge has had the opportunity to see and hear witnesses and make an assessment of the offender’s culpability; and
(d)the Court will be reluctant to interfere with an inadequate sentence if this will cause injustice to the offender – particularly where a community based sentence has been imposed and has been complied with.
[32] The Supreme Court has stated:11
Upon a successful appeal by the Solicitor-General a sentence is adjusted by no more than the minimum extent necessary to remove the element of manifest inadequacy.
Submissions for the Crown
[33] Mr Downs referred to two leading authorities to guide setting a starting point for driving with excess breath alcohol related offending.12 In his submission, a
starting point of 20 to 24 months’ imprisonment was appropriate on the charge of
10 R v Donaldson (1997) 14 CRNZ 537 (CA) at 549-550.
11 Sipa v R [2006] NZSC 52 at [9].
12 Clotworthy v Police (2002) 20 CRNZ 436 (HC) and Samson v Police [2015] NZHC 748.
driving with excess breath alcohol, third or subsequent, given the aggravating factors:
(a) the driving with excess breath alcohol offending was marked by the respondent’s previous driving convictions and other convictions involving violence and dishonesty;
(b) he was a disqualified driver while driving at the time of the offending;
and
(c) non-custodial sentences in the past have evidently not worked.
[34] The manner of driving was assessed to be neutral as the respondent was not charged with dangerous driving or ticketed for speeding.
[35] From this, a discount of two to three months would have been appropriate to reflect the remorse expressed to the probation officer and the respondent’s apparent willingness to attend a drug and alcohol programme. A further discount in the vicinity of 20 per cent would have been appropriate to recognise the respondent’s somewhat belated guilty plea, Mr Downs said.
[36] As for the driving while disqualified offending, a starting point in the range of 20 months was appropriate, in Mr Downs’ submission. This was the respondent’s twentieth conviction. The same discounts for personal factors in mitigation would result in an end sentence in the range of 13 to 14 months’ imprisonment.
[37] Mr Downs submitted the imposition of a cumulative sentence was necessary, bringing the final end sentence to at least two years and two months’ imprisonment.
[38] A sentence of imprisonment was the least restrictive and the only possible outcome, Mr Downs said. The respondent had received both custodial and non- custodial sentences for drink-driving offending but had continued to offend. He was released from prison only three months before this offending. Moreover, he has a history of non-compliance and the report writer expressed doubt as to the suitability of a community based sentence.
Submissions from counsel assisting
[39] In Ms Gray’s submission, the sentence was not manifestly inadequate. She took no issue with the Crown’s starting point.
[40] Ms Gray recognised that the two charges are different in kind and so a cumulative sentence would be appropriate.
[41] Ms Gray submitted that, although imprisonment is the usual sentence for recidivist driving with excess breath alcohol offending, the Judge’s end sentence was a merciful or rehabilitative one and the Court should refrain from overriding that discretion. That the respondent has failed to comply with community based sentences was factored into the Judge’s assessment as is evidenced by his decision to judicially monitor the respondent’s sentence, Ms Gray said.
[42] Ms Gray submitted the appropriate course was to remit the matter back to the District Court with directions to remand the respondent in custody until an appropriate residential rehabilitation address can be found for him. A sentence of home detention could then be an available option.
Analysis
[43] I take no issue with the Judge’s starting point of two years’ imprisonment, provided that it is assumed to relate to the charge of driving with excess breath alcohol only. I do not accept it is an appropriate starting point when the charge of driving whilst disqualified (3rd or subsequent) is added. Ms Gray accepted that, following the guidance of Hughes v R, cumulative sentences are generally appropriate even when driving with excess breath alcohol and driving while
disqualified arise from a single incident of driving.13 The rationale for this approach
is that the two offences are different in kind. Drink driving offending is primarily concerned with road safety, while driving while disqualified offending is primarily concerned with the enforcement of court orders. It does not, however, mean that cumulative sentences will always be necessary, remembering that the sentence must
reflect the totality of the offending and the total sentence represents the overall criminality of the offending and the offender.14
[44] I agree that the aggravating features for the purposes of setting the starting point on the charge of driving with excess breath alcohol are the breath alcohol level; the relatively short time since the last driving with excess breath alcohol conviction (2011); the respondent’s record of 11 previous driving with excess breath alcohol offences and his obvious lack of response to sentences for driving with excess breath alcohol convictions. Care must be taken in assessing the aggravating feature that he was driving while disqualified given the separate charge. Although, as Whata J in Samson noted, this type of offending is not amenable to tariff-like categorisation, I would describe the respondent’s offending, for the purposes of setting a starting point, as the most serious kind falling within the vicinity of 20 months’ imprisonment.
[45] I accept that for the charge of driving while disqualified, a starting point close to the two year maximum is appropriate.
[46] That brings the starting point on a cumulative basis to at least 40 months’ imprisonment. On a totality basis, a starting point of 34 months’ imprisonment is appropriate. I say that, mindful of the need to adjust a sentence by no more than the minimum necessary in a Solicitor-General appeal to remove the element of manifest inadequacy.
[47] In terms of adjusting the starting point, the Crown’s suggestion of a discount of two to three months to reflect his remorse and willingness to change is, in my view, generous. I am not left with the same impression from my reading of the pre- sentence report (especially in light of the serious doubt expressed by the writer as to whether the respondent is able to complete such programmes). However, I can accept that a discount of two months could be made on the basis of the respondent’s comment that he is willing to change in light of the recent loss of his brother.
[48] The respondent pleaded guilty at a late stage. He was arrested on
5 November 2014 when he was stopped by the Police when he was driving. He had no defence to the charges. He did not plead guilty until June 2015 before which he had failed to attend Court on three occasions and warrants to arrest were issued. A discount of 20 per cent was suggested by the Crown. However, in the circumstances, even 10 per cent is generous.
[49] That brings the end sentence to two years and five months’ imprisonment.
[50] I am very mindful of the compelling submissions made by Ms Gray. The sad reality is that the respondent has been subject to at least 15 terms of imprisonment and, for the past 17 years, has spent most of his time in and out of the prison system. Deterrence by imprisonment has clearly been unsuccessful. The respondent’s only rehabilitative sentences occurred in 1991 and 1995, over 20 years ago.
[51] That said, even Ms Gray had to accept that the sentence imposed by the Judge was inadequate. Even if the respondent should have been sentenced to a rehabilitative sentence, given his egregious history of non-compliance with court orders, it was a forlorn hope that he would comply with intensive supervision without some form of electronic monitoring. Ms Gray suggested he should have been sentenced to home detention and, as part of that, admitted to a residential alcohol treatment facility. An alternative approach would have been to have kept the defendant in custody until a space at a residential treatment facility became available.
[52] Ms Gray referred to other cases where a merciful and rehabilitative approach has been taken with recidivist drink drivers. Those cases are readily distinguishable, however, because each offender had himself taken rehabilitative and other positive steps, for example, obtaining employment.
[53] The respondent is not eligible for home detention. Even if he were eligible, the respondent does not have a home address; he has a reputation of providing false addresses; he is unable to be located and his personality, in general, is described as transient in nature and unreliable.
[54] Ironically, the respondent’s best chance in the prison system is with a longer, rather than a shorter, sentence of imprisonment because he might then have the opportunity to avail himself of programmes in prison.
[55] The respondent was remanded in custody for a period of three weeks, following which the Judge expressed the view that he was motivated to address his use of alcohol and a period of time in prison would make it more acceptable to the prosecution if a sentence of imprisonment were not imposed. However, the respondent’s prior convictions for driving with excess breath alcohol, and the prison sentences imposed as a result, failed to bring home the message to him. It was therefore a forlorn hope that a mere three weeks in custody would assist in that regard. The respondent’s criminal history is littered with convictions for breaching court orders (bail, disqualification from driving, breach of release conditions, protection orders) and failing to co-operate with the Police.
[56] I agree with the appellant. In the circumstances of the respondent, there was no possibility that the sentence represented a legitimate circuit breaker. Hindsight confirms that assessment. The respondent is unable to be found.
[57] I do not mean to suggest that a rehabilitative approach is not open to a Judge even in the case of a recidivist drink driver. I am supportive of Judges’ discretion to take a merciful or rehabilitative approach in suitable circumstances. Unfortunately, this is an example where the court’s willingness to engage in rehabilitative measures has been conferred on the wrong person, at the wrong time.
[58] If the respondent is truly genuine and intent on receiving treatment for alcohol abuse, he will actively seek out and engage with all available programmes while serving his prison sentence.
[59] This is not a situation where it would be inhumane to reverse the sentence under appeal. The sentence has been suspended and none of it, save the induction to intensive supervision, has been served. This is not a case where, because of an offender’s concerted efforts at rehabilitation, the sentence which should have been imposed at first instance should not be imposed at appeal. The respondent has taken
no steps to rehabilitate himself and there are no other compelling reasons why he should not serve the sentence which should have been imposed.
[60] I am satisfied that a sentence of imprisonment is the least restrictive outcome in the circumstances and no sentence other than imprisonment was appropriate.
[61] For the reasons given, the appeal is allowed. The sentence is quashed and replaced by a sentence of two years and five months’ imprisonment. The indefinite disqualification imposed in the District Court in respect of both charges remains.
[62] It will now be a matter for the defendant to be arrested pursuant to s 351 of the Act.
Thomas J
5
1