R v Pikaahu - [2015] NZHC 2617

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 Curiae

Judgment:

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Pikaahu

Details

AGLC: R v Pikaahu [2015] NZHC 2617
Case: [2015] NZHC 2617
Decision Date: 23 October 2015

CaseChat Overview and Summary

In this case, the Crown appeals against a sentence imposed by a District Court Judge on Tommy Pikaahu for driving with excess alcohol and driving while disqualified, both third or subsequent offences. The Crown contends that the sentence of 24 months' intensive supervision and 150 hours of community work is manifestly inadequate and that a term of imprisonment is required. The respondent, Pikaahu, is a recidivist offender with a history of 11 previous convictions for driving with excess breath alcohol and 19 previous convictions for driving while disqualified. The pre-sentence report assessed him to be at a high risk of reoffending, and his compliance with any sentence was seriously doubted by the report writer.

The court first addressed the issue of whether it had jurisdiction to hear the appeal in the respondent's absence. The court concluded that section 326(4) of the Criminal Procedure Act 2011 enabled the Court to deal with the appeal in the respondent's absence. The court also found it appropriate to proceed in the respondent's absence given the reasonable efforts made to locate him and serve him with notice of the appeal, the non-complex nature of the issues, and the strength of the appeal.

The court then examined the approach to appeals and the principles relevant to Solicitor-General appeals. The court concluded that the sentence imposed by the District Court Judge was manifestly inadequate and that a different sentence should be imposed. The court found that a starting point of 40 months' imprisonment was appropriate on a cumulative basis, and 34 months' imprisonment was appropriate on a totality basis. After applying discounts for personal factors in mitigation, the court determined that the final end sentence should be two years and five months' imprisonment.

The court agreed with the Crown that a sentence of imprisonment was the least restrictive and the only appropriate outcome in the circumstances. The court found that the respondent's history of non-compliance with court orders and his transient and unreliable nature made a non-custodial sentence inappropriate. The court also noted that the respondent's best chance for rehabilitation might be within the prison system. The appeal was allowed, the sentence was quashed and replaced by a sentence of two years and five months' imprisonment, and the indefinite disqualification imposed in the District Court in respect of both charges remained.

Orders