Rangi v Police

[2024] NZHC 1460

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-170

[2024] NZHC 1460

BETWEEN

TUAINEKORE CHARLIE RANGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 June 2024
Appearances:	A Kala and SNR Evans for appellant S J Cox for respondent
Date of judgment:	5 June 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 5 June 2024 at 12.30pm.

………………………… Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Auckland Kayes Fletcher Walker, Manukau

RANGI v POLICE [2024] NZHC 1460 [5 June 2024]

[1]    With leave to appeal out of time,1 Tuainekore Rangi appeals against the 1 April 2021 decision of Judge R J McIlraith in the District Court at Manukau,2 sentencing him to three months’ home detention and disqualifying him from driving for two years on his guilty pleas to charges of unlawfully using a motor vehicle,3 failure to stop for flashing lights (third or subsequent),4 dangerous driving,5 possession of a utensil,6 common assault,7 and breach of release conditions.8

[2]    Mr Rangi’s appeals specifically are against his conviction and sentence on the charge of failing to stop for flashing lights, as not being a ‘third or subsequent’ offence in terms of s 52A of the Land Transport Act 1998 and therefore not attracting the otherwise mandatory two-year disqualification.9

Background

[3]    In relation to his driving at Auckland’s Clover Park on 19 July 2020, Mr Rangi relevantly was charged with and pleaded guilty to having:

… failed to comply with a lawful requirement given  to  [him]  under  section 114(2) of the Land Transport Act 1998 by an enforcement officer in that [he] being the driver of a vehicle and being followed by a motor vehicle displaying flashing blue and red lights or sounding a siren failed to stop, [he] having, on at least 2 previous occasions, been convicted of an offence against section 114.

Mr Rangi previously was convicted of such failures to stop on 17 August 1996,       5 July 2003 and 14 September 2003 (twice). Also in relation to his driving at Auckland’s Clover Park on 19 July 2020, Mr Rangi was charged with and pleaded guilty to a charge of dangerous driving brought under s 35(1)(b).

1      Rangi v Police HC Auckland CRI-2024-404-0170, 18 April 2024 (Minute of Andrew J) at [8].

2      Police v Rangi [2021] NZDC 6103.

3      Crimes Act 1961, s 226. Maximum penalty seven years’ imprisonment.

4      Land Transport Act 1998, s 52A(1)(a)(i).

5      Section 35(1)(b) and (2)(a). Maximum penalty three months’ imprisonment or $4,500 fine.

6      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty one year’s imprisonment or $500 fine.

7      Crimes Act, s 196. Maximum penalty one year’s imprisonment.

8      Parole Act 2002, s 71(1). Maximum penalty one year’s imprisonment or $2,000 fine.

9      Land Transport Act, s 52A(5)(b).

Judgment under appeal

[4]    Judge McIlraith noted he was “to complete the sentencing process for the six charges” Mr Rangi faced.10 The Judge addressed Mr Rangi’s conviction for unlawful use of a motor vehicle as the lead offending, taking a starting point of 12 months’ imprisonment, uplifted by three months “for the other offending” and a further three months for Mr Rangi’s “relevant criminal history”.11 He applied a total discount of 50 per cent on account of mitigating factors, equating that to four and a half months’ home detention, which he reduced to three months as Mr Rangi’s final sentence after “taking into account the time that [he was] on EM bail earlier in this process and in custody very early on as well”.12

[5]    With specific reference to Mr Rangi’s s 52A(1) conviction, Judge McIlraith said:13

[T]here will be a disqualification from driving of 24 months, it is the minimum because of it being a third and subsequent. Now, I would have the ability to backdate that to the date of the guilty plea at least. So your guilty plea was entered on 9 December 2020 is what my records show, Ms Feyen.

So you will be disqualified from driving for 24 months, and there is nothing I can do other than that, but what I can do is I can make that 24 months start from the 9th of December last year. So at least you have a few months of that already underway.

[6]The Judge did not otherwise expressly address Mr Rangi’s s 35(1) conviction.

Relevant law

[7]Section 114(2) provides:

An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.

and s 52A relevantly provides:

(1)    A person commits an offence if the person—

(a)is the driver of a vehicle that fails to stop—

10     Police v Rangi, above n 2, at [1].

11     At [5]–[7].

12     At [13]–[14].

13     At [15]–[16].

…

(ii) when required to stop under section 114(2);

…

(2)    The maximum penalty on conviction for an offence against subsection (1) is a fine not exceeding $10,000.

(3)    If a person is convicted of a first offence against subsection (1)(a) or (b) and committed the offence while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver licence for 6 months.

(4)    If a person is convicted of a second offence against subsection (1), a court must order the person to be disqualified from holding or obtaining a driver licence for a period of not less than 1 year and not more than 2 years.

(5)    If a person is convicted for a third or subsequent offence against subsection (1),—

(a)the maximum penalty is imprisonment for a term not exceeding 3 months; and

(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 2 years.

(6)    A disqualification ordered under subsection (3), (4), or (5) is cumulative on, and not concurrent with, any other disqualification that a court may order in respect of the facts that gave rise to the person’s conviction for an offence described in subsection (1).

…

[8]    The Land Transport Act generally came into force on 1 March 1999;14 s 52A was inserted on 11 August 2017.15 This Court repeatedly has affirmed s 52A’s imposition of higher penalties for such repeat offending was “prospective”.16

[9]Section 7(2) provides:

A person may not drive a motor vehicle, or cause a motor vehicle to be driven, at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person.

and s 35 relevantly provides:

14 Section 1(5).

15 Land Transport Amendment Act 2017, s 41. Section 52A(4) further was amended from 1 March 2024 to substitute “a period of not less than 1 year and not more than 2 years” for the previous “1 year”: Land Transport (Road Safety) Amendment Act 2023, s 7.

16 Martin v Police [2021] NZHC 1356 at [14]; Hallmond v R [2021] NZHC 2369; Tongalahi v Police [2022] NZHC 1409; Ryder-Ware v Police [2022] NZHC 3172; Pearse v Police [2023] NZHC 2023.

Contravention of section 7 …

(1)    A person commits an offence if the person—

…

(b) drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; …

… .

(2)    If a person is convicted of an offence against subsection (1),—

(a)the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

…

(3)    The imposition of a mandatory disqualification under this section is subject to section 81 (which allows a court not to order disqualification for special reasons relating to the offence).

Submissions

[10]   Counsel agree Mr Rangi wrongly was charged with reference to s 52A(5). As convicted only of a first offence against s 52A(1)(a)(ii), his earlier convictions for such offending not being of offending against s 52A but its predecessor,17 a mandatory six-month disqualification was required. But police argue also for a mandatory six-month disqualification on Mr Rangi’s conviction for dangerous driving, for cumulative imposition.

Approach on appeal

[11]The appeals are by way of rehearing.18

[12]   I must allow Mr Rangi’s appeal against conviction only if a miscarriage of justice has occurred, meaning something has gone wrong either at trial to create a real

17 Land Transport Act, s 52(4).

18 See Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32], where the Supreme Court noted that the principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 apply to appeals under s 232(2)(b) of the Criminal Procedure Act 2011.

risk the outcome of the trial was affected or to result in the trial itself being unfair or a nullity.19 Otherwise I must dismiss the appeal.20

[13]   The magnitude of the former error must be of “sufficient seriousness to warrant the verdict being set aside without further inquiry”.21 In Walker v R, this Court explained of s 232(4)’s definition of “miscarriage of justice”:22

A miscarriage in the former of those senses was held under the law as it previously was to involve two issues, and that continues to be so:

First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.

A miscarriage in the second sense, one which has “resulted in an unfair trial”, must be set against s 25(a) of the New Zealand Bill of Rights Act 1990, which confers an absolute right to “a fair and public hearing by an independent and impartial court”.

[14]   I must allow Mr Rangi’s appeal against sentence only if satisfied both there is error in the sentence, and a different sentence should be imposed.23 In any other case, I must dismiss the appeal.24 The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in the approach to sentencing appeals.25 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether the sentence is “manifestly excessive” is to be assessed in terms of the sentence given; the process by which it is reached rarely will be decisive.26 I am to allow “a respectable margin of appreciation for the judgment of the trial Judge, particularly bearing in mind that sentencing is not a science”, by not ‘tinkering’ with the sentence.27

19     Criminal Procedure Act, s 232.

20     Section 232(5).

21     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [41], adopted by the Supreme Court in Haunui v R

[2020] NZSC 153, [2021] 1 NZLR 189 at [50].

22 Walker v R [2016] NZCA 152 at [15]–[16] (footnotes omitted), citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Gault, Keith and Blanchard JJ as to a miscarriage of justice for the purposes of s 385(1)(c) of the Crimes Act 1961; Wiley v R, above n 21, at [27], and Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [65]. Similarly, see Do v R [2024] NZCA 97 at [18]; and Sachu v R [2023] NZCA 610 at [28], both citing R v Sungsuwan at [110].

23 Criminal Procedure Act, s 250(2).

24 Section 250(3).
25 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

26 Ripia v R [2011] NZCA 101 at [15].

27 Kay v R [2024] NZCA 1 at [36], citing R v Boyd (2004) 21 CRNZ 169 (CA) at [38].

Discussion

[15]   Concurrent cases establish divergent approaches to determining appeals in like circumstances.28 The matter turns on if conviction is to be comprehended as for “an offence” against s 52A(1), or for a “first”, “second” or “third or subsequent” offence in terms of subs (3)–(5) respectively. If the former, appeal against conviction has little prospect even if the conviction errs as to the offending’s repetition.

[16]   Given s 52A(3)–(5)’s express references to an “offence against subsection (1)”, and as express predication on there being such conviction, Mr Rangi’s conviction plainly is of offending against subs (1). Nothing has gone wrong in that in terms of Mr Rangi’s guilty plea or, even if so in terms of Mr Rangi pleading guilty to a charge including reference to s 52A(5), led to a real risk of an unsafe verdict. No element of the offence includes its repetition. In that respect, the charge’s reference to s 52A(5) is irrelevant and immaterial; Mr Rangi’s conviction should not be recorded in those terms. Mr Rangi always was going to plead guilty to the offence in itself.

[17]   Rather, in imposing the necessary subsequent disqualification order, the Judge comprehended that conviction to be Mr Rangi’s third or subsequent offence against subs (1). That was wrong. Mr Rangi had not previously offended against s 52A(1). His last failure to stop in terms of s 114 was in 2003, long before s 52A(1)’s offence was established in law. As part of a court’s ‘dealing with’ an offender,29 disqualification is part of the Judge’s sentence. Even if an order for disqualification is to be viewed as a sentence “fixed by law” (against which there is no right of appeal),30 the law fixes it in Mr Rangi’s case at six months, not two years. The Judge thus erred in imposing a two-year disqualification when a six-month disqualification should have been imposed. Given the mandatory nature of the disqualification, the error has resulted in a ‘manifestly excessive’ sentence at least in that manifestly it exceeds that which was required by statute, which would be the case if it exceeded that required at all, let alone by the magnitude here.

28     See cases cited at n 16 above. Similarly, O’Rourke v Police [2023] NZHC 1805.

29     Sentencing Act 2002, ss 7–9.

30     Criminal Procedure Act, s 244.

[18]   The Judge was required to impose an order of six months’ disqualification on Mr Rangi’s dangerous driving conviction. Inferentially, the Judge also erred if having the two-year disqualification subsume that six-month disqualification. Given the Judge imposed an order of disqualification, the alternative inference the Judge had decided not to order disqualification under ss 35(3) and 81 is not available. Accordingly, the inference is the Judge imposed a six-month disqualification on    Mr Rangi’s dangerous driving conviction running from 9 December 2020.

[19]   I therefore will dismiss Mr Rangi’s appeal against conviction, but allow his appeal against sentence. On such allowance, I must:31

… within the limits allowed by law,—

(a)   set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

(b)   vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

(c)   remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by [me].

[20]   To do the least damage to the Judge’s sentence on Mr Rangi’s s 52A(1) conviction, and noting there is no appeal against his sentence on Mr Rangi’s s 35(1) conviction, I will vary the former only by quashing the Judge’s 24-month disqualification order from 9 December 2020, and replacing it with a six-month disqualification order from 9 June 2021, to run cumulatively with the Judge’s inferred six-month disqualification order from 9 December 2020.

Result

[21]   The appeal against conviction is dismissed but the appeal against sentence is allowed.

[22]I vary the Judge’s sentence of Mr Rangi on his s 52A(1) conviction by:

(a)quashing his 24-month disqualification order from 9 December 2020; and

31     Section 251.

(b)replacing it with a six-month disqualification order from 9 June 2021, to run cumulatively on the Judge’s inferred six-month disqualification order from 9 December 2020 as arising from Mr Rangi’s s 35(1) conviction.

—Jagose J