R v Riosa

[2021] NZHC 3426

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI 2020-042-2342

[2021] NZHC 3426

THE QUEEN

v

DYLAN REX RIOSA

Hearing:	13 December 2021
Counsel:	A R Goodison for Crown M J Vesty for Mr Riosa
Sentencing:	13 December 2021

SENTENCING NOTES OF MALLON J

Introduction

[1]    Dylan Riosa, you have pleaded guilty to charges of threatening to kill, possession of a knife, driving in a dangerous manner, assault of a police officer, and refusing an officer’s request for a blood specimen,1 following a sentence indication given in October of this year.2 You are now to be sentenced.

1      Crimes Act 1961, s 306 (maximum penalty seven years’ imprisonment); Summary Offences Act 1981, s 13A (maximum penalty three months’ imprisonment); Land Transport Act 1998, s 35(1)(b) (maximum penalty three months’ imprisonment, $4,500 fine and requires disqualification from driving for six months or more); Summary Offences Act, s 10 (maximum penalty six months’ imprisonment); and Land Transport Act, s 60(1)(a) (maximum penalty three months’ imprisonment, $4,500 fine and requires disqualification from driving for six months or more).

2      R v Riosa HC Wellington CRI-2020-042-2342, 19 October 2021.

R v RIOSA [2021] NZHC 3426 [13 December 2021]

Agreed summary of facts

[2]    The charges arise out of events on 25 November 2020. You were driving a vehicle in the Nelson area in the late afternoon that day. Your driving led to multiple driving complaints that afternoon.

[3]    You and an associate drove to the victim’s house. You stood outside the house and yelled at the victim to come outside. The victim did so because she did not want to disturb the other occupants in the house. The victim got in the car and almost immediately you began speeding. The victim contacted a friend on social media asking them to report the car because she felt unsafe. You threw her phone onto the dashboard. The victim asked you to take her home but you did not do so. At one point you stopped the car and got out. The victim grabbed her phone and again contacted her friend. She did not want to aggravate the situation and feared you would physically overpower her.

[4]    After seeing a police car on patrol, you drove north out of Nelson towards Cable Bay, about 15 minutes out of Nelson. You drove on the wrong side of the road when coming into blind corners, drove on a cycle way on the wrong side of the road and scraped the car on posts which delineated the cycleway from the road. The victim estimated that at times you were driving at about 140 km/h in a 100 km/h area. The driving terrified the victim and she feared she would die.

[5]    During the drive, you cursed at the victim and said you would put her “back in the trunk” and “I could kill you real easily right now”. At one point, you stopped the car and pulled out a large knife, which was in a case. You put it on your lap and told the victim you had got it from a family friend and asked her if she thought it looked cool.

[6]    Once at Cable Bay, you did “donuts” in the car and crashed into a tree. While stopped there, you reached across to the victim and prodded her chest on both sides in a cutting motion and said, “Look how fast I can kill you right now, you open that passenger door, look how fast I can do that, I can just dump the body like that …”. You opened the passenger door and motioned that you could throw her body out of the car.

[7]    You repeatedly said to the victim “I’ll put you in the trunk”, and that if she didn’t listen, you would put her in the boot. You said that it would be easy to kill her.

[8]    The car ended up running low on petrol. You drove to a house in Atawhai, where you were located by the police and arrested. When placed in the rear seat of the police car, you raised your leg and kicked the police officer, a woman, who was sitting next to you. Evidential breath test procedures were carried out, which led to you refusing to provide a blood specimen when requested.

Victim impact statement

[9]    When I gave the sentencing indication a victim impact statement was not available. Some information about the impact on the victim was, though, available from her DVD interview. She described feeling “real powerless”, “scared, like my body was there but my soul wasn’t”, “shit scared” and like “a roller-coaster”. Those comments underline how terrifying the events were for the victim.

[10]   I now have a victim impact statement. She describes herself as a friend of yours at the time. She no longer associates with you. She describes the events as very stressful and frightening. Fortunately, she did not suffer physical injuries but she has had flashbacks and does not like driving on the roads that you were driving on with her that day. She has received threats from some of your associates, which have made her nervous going out in public and affected her ability to hold down a job. These effects the victim describes are unsurprising, given what you put her through.

Personal circumstances

[11]   You were aged 30 years at the time of these events. You have a lengthy list of previous convictions involving [disorderly] behaviour, theft and shoplifting, wilful damage, breaching conditions and some dated and low level drug offending. Most relevantly, you have multiple convictions for driving while disqualified (and similar offences), three convictions for dangerous driving (most recently in 2018), a conviction for failing to stop when signalled by red and blue flashing lights (2016) and a dated conviction for driving with excess breath alcohol. You also have convictions

for assault (2017), threatening damage with intention to frighten (2013) and much more dated indecent assault convictions.

[12]   Following your arrest on the present matters, you spent four months in custody. At the time of the sentencing indication you had been on EM bail for approximately six and a half months. You have now spent a further two months on EM bail. The conditions of bail have been reasonably restrictive.3

[13]   I did not have a pre-sentence report when the sentencing indication was given. It is a positive report.4 You expressed some remorse and you were upset with yourself for your behaviour. You were fully engaged in a drug-using lifestyle at the time. You have since stopped using methamphetamine and alcohol. You have complied with your EM bail and your release conditions and have completed all your outstanding community work sentence.

[14]   I am advised that there were two bail breaches, one in early November on the day that you completed your community work, when you went to visit your partner because you were proud of yourself for having completed community work. You accept that you shouldn’t have done that and you spent the night in the cells as a result of that breach. You also breached your EM bail recently when you went to see your mother and for that the Police gave you a warning. The way those matters have been dealt with mean that they are really of no concern from my perspective, especially as you acknowledge that you shouldn’t have done it, albeit that there were reasons why you did.

[15]   You have been doing a six-week health and wellbeing programme and have expressed interest in a police-facilitated alcohol impairment programme. You also wish to find employment. You have talked to me today about completing the programme that you have been on, and how much you have enjoyed and gained benefit from it, which has as a component a te reo Māori aspect. And today you will be collecting your certificate and you are right to be proud of that.

3      The EM bail was subject to a 24-hour curfew, but Mr Riosa was permitted absences for supermarket shopping and to go to the gym and to carry out a sentence of community work.

4      As I said to Mr Riosa at the sentencing hearing, from the bad place he was in at the time of the offending, it was pleasing to see his rehabilitative progress.

[16]   During your EM bail you were residing with your mother. And recently you have moved to stay with your partner. And that has been explained to me as largely because of the COVID situation in Nelson where there is a vulnerable, your mother or grandmother, somebody at the address anyway, is vulnerable. Again, that is understandable and the fact that you have moved addresses does not count against you.

Starting point

[17]   The aggravating features of the offending on the day are that the victim was isolated with you and your associate in the car and also when you were at Cable Bay; she felt scared for her life due to the manner of your driving, and unable to leave when the car was stopped because you could overpower her physically; the threats were made repeatedly and directly to the victim; and the victim was aware that you had a knife because you had showed it to her. I accept that the presence of the other male is not aggravating because there is nothing in the summary of facts to indicate whether he was participating or complicit in your offending. Of the aggravating features referred to in the Court of Appeal’s decision in Faaleaga v R, only premeditation is not present.5

[18]   In accordance with the sentencing indication, in light of the aggravating factors, I consider a starting point of 12 months’ imprisonment is appropriate for the threat to kill when compared with other cases.6 Again, in accordance with the sentencing indication, to this I add an uplift of two months for the dangerous driving, taking into account that this was a bad piece of driving for a reasonably extended period and that you have previous offences for dangerous driving and also taking into account totality. I add a further uplift of two months for the assault on the police officer and one month for failing to provide a blood specimen. This takes into account

5      Faaleaga v R [2011] NZCA 495 at [11].

6      The case is more serious than Miller v Police [2021] NZHC 1104 and Faaleaga v R, above, due to the absence of proximity when the threats in those cases were made. It is less serious than Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011, which involved a rifle pointed at the victim’s head and an arguably more specific threat to kill (the rifle’s ammunition was not in the chamber but the victim did not know that). And I take into account that, although a starting point of 12 months was upheld by the High Court in that case, the Court considered 18 months to two years might have been appropriate. It is also less serious in my view than Hurring v Police [2020] NZHC 3309, where the threat with the weapon (a spear) was more direct and there were two victims. I consider R v Falke [2017] NZHC 951 has some parallels because of the dangerous driving context and is probably the best comparator, even though the nature of the threat and how it was carried out was different.

that the assault on the police officer was at the minor end but this offending is against your history of non-compliance with authority, including non-compliance with conditions, disqualifications and failing to stop, and some limited assault offending.

[19]This comes to 17 months’ imprisonment before personal factors.

Personal aggravating and mitigating factors

[20]   You are entitled to some credit for your guilty plea, taking into account the closeness to trial. I deduct 15 per cent for this.7 I also deduct three months for the time spent on EM bail. This would mean an end sentence of a little under 12 months’ imprisonment before other factors. If this were being commuted to home detention, it would mean a period of home detention of less than two months, once the time you spent in custody is taken into account and also taking into account the time spent on EM bail, which I have referred to earlier.8

[21]   So where that gets to is, as I say, a sentence of a little under two months’ home detention. As discussed with counsel this morning, they both submit that the appropriate sentence is a combination of intensive supervision to assist with rehabilitation, and community work to have an appropriate punitive element to the sentence.

[22]   Having considered what counsel have to say about that, I consider the appropriate length of intensive supervision is 12 months and that the community work should be a period of 40 hours.

Disqualification

[23]   The dangerous driving and refusing blood charges require a minimum period of disqualification from driving of six months.

7      Mr Riosa also received the benefit of amended charges.

8      The four month period in custody equates to a term of imprisonment of eight months, which in turn is equivalent to four months’ home detention, deducted from a little under six months’ (the equivalent of 12 months’ imprisonment) home detention: Longman v Police [2017] NZHC 2928 at [8]-[9]; Paul v Police [2021] NZHC 1924; and R v Tai [2021] NZHC 2769 at [37]-[38].

[24]   Taking into account that you have not been driving for the period of your EM bail and the necessity to mark what was bad driving against a history of bad driving, I consider that the appropriate disqualification is six months for the blood specimen charge and six months for the dangerous driving, to be served concurrently and to run from the date of sentencing.

[25]   I order a notice under s 129(b) of the Sentencing Act 2002 to be sent to the registered owner of the vehicle you were driving during the offending.

Postscript

[26]   I omitted to refer to the conditions of intensive supervision. They are the special conditions referred to in the pre-sentence report and the standard conditions.

Mallon J