Rawiri v Police
[2023] NZCA 171
•17 May 2023 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA708/2022 [2023] NZCA 171 |
| BETWEEN | DANIEL RAWIRI |
| AND | NEW ZEALAND POLICE |
| Hearing: | 1 May 2023 |
Court: | Brown, Moore and Fitzgerald JJ |
Counsel: | A Y H Young for Appellant |
Judgment: | 17 May 2023 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
On 30 June 2022, Mr Rawiri, having pleaded guilty to a number of charges in the District Court, was sentenced to a term of imprisonment of 27 months.[1]
[1]Police v Rawiri [2022] NZDC 12444.
He appealed that sentence to the High Court on the primary ground that the starting point was too high. Although Downs J agreed that the global starting point of three years and seven months’ imprisonment was too high, he was not persuaded that the end sentence was manifestly excessive.[2] He considered that the District Court Judge had been overly generous in giving Mr Rawiri the maximum 25 per cent credit available for his guilty pleas. In all the circumstances of Mr Rawiri’s case, the Judge considered that the orthodox credit should only have been 15 per cent. Had that been applied, the end sentence would have been the same. The appeal was dismissed.
[2]Rawiri v Police [2022] NZHC 2466 [High Court judgment].
Mr Rawiri then applied to this Court for leave to bring a second appeal. Leave was granted on 12 April 2023.[3]
[3]Rawiri v R [2023] NZCA 104 [Leave judgment].
This judgment deals with Mr Rawiri’s second appeal, which the Crown opposes.
Background
The background was comprehensively summarised by Downs J:[4]
[4]High Court judgment, above n 2.
[2] On 4 November 2020, Mr Rawiri was sentenced to 18 months’ intensive supervision and a term of community work. He was also disqualified from driving for 18 months. Mr Rawiri breached the sentence of intensive supervision on 27 January and 3 February 2021 by failing to report. On 5 March 2021, he again breached the sentence by changing homes without the approval of his probation officer. Mr Rawiri also breached a community work sentence on 5 February 2021 by failing to report.
[3] On or about 1 June 2021, Mr Rawiri unlawfully took a 2002 Mazda Atenza in Hamilton. Police located the car [on] 9 June 2021. Mr Rawiri was driving. It was displaying a stolen registration plate. Mr Rawiri failed to stop and was chased, including by the Police helicopter. Mr Rawiri drove dangerously. He wove in and out of traffic and drove on the wrong side of the road. Mr Rawiri eventually stopped, then fled. He was found on a nearby property. Mr Rawiri was charged in relation to this sequence. He appeared in the Manukau District Court on 24 January 2021 and was granted bail.
[4] On 19 July 2021, Mr Rawiri was found, as a passenger, in a car that had been unlawfully taken.
[5] This introduces the most serious offending:
(a)On 15 July 2021, hence four days before the events of [4], Mr Rawiri was at the home of his then partner. He had with him a sawn-off shotgun. Mr Rawiri discharged the gun into the bedroom floor. Three children were in another part of the home. Mr Rawiri assured them he had fired the gun accidentally.
(b)Mr Rawiri returned to the home [on] 26 July 2021 and after a brief argument about the victim’s baby daughter, threatened to shoot the victim if she did not hand her daughter to him. Mr Rawiri did not then have the shotgun with him.
(c)Police went to the home [on] 29 July 2021. They found the shotgun and two rounds of ammunition.
[6] Consequently, Mr Rawiri faced these charges:
Date of offending
Charge
January to March 2021
Breach intensive supervision (x 3)
Breach of community work
1 – 9 June 2021
Unlawfully takes a motor vehicle
Dangerous driving
Driving while disqualified
Failing to stop for Police
19 July 2021
Unlawfully gets into a motor vehicle
15 – 29 July 2021
Reckless discharge of a firearm
Threatening to do grievous bodily harm[5]
Unlawful possession of a firearm
Unlawful possession of ammunition
[5]This charge was described in the District Court judgment and elsewhere in the High Court judgment as one of threatening to kill, which is consistent with the description used in the charging documents. However, this difference in description is not material for sentencing purposes: per s 306(1)(a) of the Crimes Act 1961, the maximum term of imprisonment for both threatening to kill and threatening to do grievous bodily harm is seven years.
[7] Mr Rawiri pleaded guilty [on] 8 April 2022. On 30 June 2022, Judge C J Field imposed a term of 27 months’ imprisonment. The Judge adopted a global starting point of 43 months’ imprisonment. It comprised a host of smaller sentences, which were made cumulative. The Judge deducted 25 percent for Mr Rawiri’s guilty pleas and 10 percent for personal mitigating features identified in a cultural report. The Judge disqualified Mr Rawiri from driving for two years.
(Footnotes omitted.)
The appeal
This being Mr Rawiri’s second appeal against sentence, s 256 of the Criminal Procedure Act 2011 (CPA) applies. Section 256(2) requires the Court to allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
In any other case, the Court must dismiss the appeal.[6]
The High Court decision
[6]Criminal Procedure Act 2011, s 256(3).
Downs J considered that the 43-month starting point adopted in the District Court was too high. He noted that “[t]he mainstay of the starting point was the period of 33 months’ imprisonment for the firearms offences and threat to kill”.[7] It comprised 18 months’ imprisonment for the reckless discharge of a firearm offence, a cumulative sentence of nine months for the possession and ammunition offences and a further cumulative sentence of six months for the threat to kill.[8] In the Judge’s view, that combination presented as too high because the possession and ammunition offences were partially subsumed by the reckless discharge offence. He considered a starting point of 24 months’ imprisonment for these offences, uplifted by six months for the threat to kill, was the correct approach. That resulted in a lower starting point of 30 months’ imprisonment.[9]
[7]High Court judgment, above n 2, at [10].
[8]At [10].
[9]At [11].
Furthermore, Downs J considered that the uplift of 10 months’ imprisonment for the remaining offences[10] was also too high because the breaches of intensive supervision and community work occurred around the same time. Instead, the Judge was of the view that an “overarching starting point of six months’ imprisonment would be about right”, producing a global starting point of 36 months’ imprisonment as against the 43 months imposed in the District Court.[11]
[10]Comprising four months for the breaches of intensive supervision, three months for the breach of community work, and three months for the driving-related charges.
[11]High Court judgment, above n 2, at [12].
However, having accepted that the starting point was too high, the Judge turned to consider the 25 per cent discount given for Mr Rawiri’s guilty pleas in the District Court. Citing the Supreme Court’s judgment in Hessell v R, his Honour observed:[12]
[13] … Maximum credit for a guilty plea is ordinarily reserved for the situation when a defendant pleads guilty at the first reasonable opportunity. Even then, other factors, such as the strength of the prosecution case, and whether a defendant has benefitted from a plea arrangement, are relevant. Mr Rawiri pleaded guilty to all charges [on] 8 April 2022, and in consequence of a plea arrangement. Mr Young [for Mr Rawiri] contends the Judge was right to give full credit because the relationship between Mr Rawiri and his previous lawyer broke down, and there were delays because of the pandemic.
[14] Full credit was benevolent notwithstanding these factors. The guilty pleas were not early, and Mr Rawiri benefitted from a plea arrangement. Discount of 15 percent would be orthodox. Applying this to the adjusted starting point with the 10 percent for personal mitigating features produces a term of 27 months’ imprisonment, the same sentence as that imposed.
(Footnote omitted.)
[12]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Downs J declined to give a youth discount noting that it would be offset by Mr Rawiri’s extensive criminal history both in the adult jurisdiction and the Youth Court. He was also not persuaded that the 24-month driving disqualification was too long, noting that the relevant offending was serious.[13]
[13]High Court judgment, above n 2, at [15]–[16].
It followed that the Judge determined the sentence was not manifestly excessive and the appeal was dismissed.[14]
Second appeal
[14]At [17]–[18].
This Court granted leave for two reasons. First, it was arguable that a full discount for guilty pleas, or something approaching a full discount, was available to Mr Rawiri as a result of COVID-related delays which adversely affected the timely and orderly progress of the charges, complicated communication with counsel and led to significant delays in the prosecution providing disclosure. None of these factors was within Mr Rawiri’s control, as implicitly acknowledged by the respondent when supporting the full discount.[15]
[15]Leave judgment, above n 3, at [22].
Secondly, the Court considered a separate ground of appeal which was not raised by counsel in either the District Court or the High Court. Mr Rawiri was given no discount in recognition of the approximately 10 months he spent on electronically monitored bail (EM bail). It would appear that as a result of incorrect advice given by the Department of Corrections (Corrections) about the length of the final sentence, it was wrongly assumed by counsel that the time spent on EM bail had been taken into account. The error was apparently noticed only when Mr Rawiri made enquiries into his eligibility for parole after the High Court appeal.[16]
Discussion
[16]At [23].
The central issue on this appeal is whether the end sentence of 27 months’ imprisonment was manifestly excessive. Mr Young, for Mr Rawiri, submitted it was and that a sentence below 24 months would have been appropriate. We turn to consider each of the grounds of appeal against that backdrop.
Was the High Court correct to determine that a 15 per cent discount was appropriate for the guilty pleas?
It was common ground on this appeal that the global starting point of 36 months’ imprisonment adopted by Downs J was appropriate. Mr Rawiri was sentenced on 13 charges for relatively serious offending. The Arms Act 1983 charges were the most serious; discharging a firearm in the victim’s bedroom when others, including four adults and three children, were in the house[17] and then, just a little over a week later, threatening to shoot the victim if she did not hand over her daughter. Although Mr Rawiri did not have a firearm with him at the time, some days later the police found a shotgun and two rounds of ammunition at the house. We also consider it a significantly aggravating factor that at the time of this offending Mr Rawiri was both on bail and subject to a sentence of intensive supervision. The driving charges, especially the June 2021 series, were also moderately serious in that after taking the car, he drove at high speed to avoid police, weaving in and out of traffic and crossing the centre line multiple times, necessarily putting other road users in danger. He stopped only after road spikes were deployed and, even then, attempted to flee on foot.
[17]The summary of facts records that the weapon was a sawn-off, double-barrelled shotgun. The shot was fired when the appellant was alone in the bedroom. After the shot was fired, he immediately left the room to assure other occupants of the house it was accidental. He suggested to the pre‑sentence report writer that the shot was fired with the intention of killing himself.
We also agree with the Judge’s reasoning for not allowing the full 25 per cent discount for guilty pleas, notwithstanding the Crown’s apparent concession that it was available. The timing of a guilty plea is but one factor to be considered in the assessment of the appropriate discount. It is not determinative. As the Supreme Court observed in Hessell, the value to be attributed to a guilty plea is to be assessed having regard to all the circumstances of the case, rather than by reference to a prescriptive scale of discounts that depend on when the plea was entered.[18] Other non-exhaustive considerations include the scale and complexity of the trial which was avoided, the justification for any delay, the inevitability (or otherwise) of conviction and, relatedly, the genuineness of the defendant’s acceptance of responsibility, whether the pleas follow charge and plea negotiations and the benefits to victims and witnesses of not being required to give evidence.[19] A fact-specific evaluative exercise is required.
[18]Hessell v R, above n 11, at [51].
[19]At [45], [61]–[62] and [65].
Mr Young submitted that the consequences of COVID-related interruptions effectively conspired to frustrate Mr Rawiri’s ability to enter guilty pleas in a more timely way. For example, just a month or so after the last traffic offending, in September 2021, he applied for a sentence indication but this was administratively adjourned to a date in November 2021 due to the pandemic. The November fixture, too, was vacated for the same reason. Ultimately no sentence indication was given. There were other administrative adjournments as well as remote appearances via AVL. On 8 February 2022, Mr Rawiri advised he wished to resolve all charges other than the threatening to kill charge, which was the subject of further discussions between the parties resulting in an amended summary of facts on 19 April 2022.[20] Mr Rawiri pleaded guilty to all other charges on 8 April 2022.
[20]We were advised that the amendment of the summary of facts was to delete reference to Mr Rawiri being in possession of a firearm at the time. It appears the amendment was consistent with the witnesses’ formal written statements.
There was some discussion about when full disclosure was complete. The significance of disclosure reflects the right of a defendant to be informed by counsel of the implications of pleading guilty, the submission being that until full disclosure is made, counsel is not in a position to properly undertake that function. However, as this Court observed in Hessell v R, a defendant who does not enter an early guilty plea is entitled to wait until disclosure is complete but may, in doing so, lose some of the advantages of an early plea.[21] Again, the relevant analysis will be fact-specific.
[21]Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [32].
In our view, it is unnecessary to determine when full disclosure on all charges was complete. On the facts of this case, it seems most unlikely that full disclosure would have materially changed the essential factual basis on which pleas would be entered. According to Mr Young, full disclosure was received in respect of the Arms Act and family violence charges in September 2021. The evidence supporting those charges came from the victim and others in the house at the relevant times. Another five months passed before Mr Rawiri intimated that guilty pleas would be entered. The delay is unexplained. The assertion that COVID-19 precluded earlier resolution does not withstand close scrutiny. For example, it was in September 2021 that Mr Rawiri had his EM bail hearing. Notably, at that time Auckland was at Alert Level 4. As appears to be the case with Mr Rawiri, hearings were being conducted remotely including some substantive matters. In December 2021 the country moved to the traffic light settings. It was not until February that Mr Rawiri indicated an intention to plead. That was certainly not at the earliest practical opportunity.
The extent of disclosure around the driving charge series is less clear. Ms Wynne, for the Crown, attached to her written submissions the police record of disclosure. This indicates that full disclosure on the driving series was given in August 2021. She noted that if there was any dispute which the Court considered material, leave would be sought to admit an affidavit from the police. We do not consider that course necessary. The evidence supporting both sets of driving charges came from the police officers who were involved in those events and their accounts would be unlikely to materially influence counsel’s task of advising Mr Rawiri on the advantages and disadvantages of pleading guilty.
As for the other circumstances affecting the guilty plea discount, we are satisfied that Downs J explicitly took the relevant factors into account. While it may have been open to give a slightly more generous discount, it cannot be said that he erred. The 15 per cent discount was within the available discount range for guilty pleas in all the circumstances of this case.
Should a discount be given for time spent on EM bail?
It is common ground that despite counsel at sentencing (who was not Mr Young) seeking a discount for time spent on EM bail in written submissions, the issue was not pursued in the District Court. It appears that counsel was under the mistaken impression that any such discount would be calculated by Corrections. The mistake was not realised until after Downs J delivered his judgment.
On its face, this oversight would amount to an error in terms of s 256(2) of the CPA. However, that is not the end of the enquiry. This Court is still required to determine whether a different sentence should be imposed; here whether time spent on EM bail is deserving of a discrete discount and whether it would change the sentence imposed. That is the question to which we next turn.
Time spent on EM bail is a mandatory mitigating factor in terms of s 9(2)(h) of the Sentencing Act 2002. Mr Rawiri was arrested on the index offending on 30 July 2021. He remained in custody for approximately six weeks before being released on EM bail. He spent approximately 10 months on EM bail before entering his pleas of guilty.
Discounts for time spent on EM bail are matters of judicial discretion having regard to all the circumstances.[22] Time spent on EM bail is not equivalent to pre‑sentence custodial remand.[23] There is no arithmetical formula capable of universal application.[24] Mr Young submitted that Mr Rawiri’s time on EM bail was “without incident”. Ms Wynne refuted that. She pointed to the pre-sentence report, which notes three instances of non-compliance although no charges for breach were brought:
(a)7 November 2021: Mr Rawiri’s tracker allegedly shut down. He was arrested on 9 November 2021 and re-admitted to EM bail on 10 November 2021.
(b)10 November 2021: Mr Rawiri was not home when officers attended to reconnect his monitoring equipment.
(c)26 December 2021: Mr Rawiri left his address without permission. He was reported to have attributed this to attending hospital with his partner who was in labour.
[22]Chea v R [2016] NZCA 207 at [110].
[23]Parata v R [2017] NZCA 48 at [10]–[14].
[24]A (CA90/2017) v R [2017] NZCA 278 at [90].
Mr Young’s submission was that Corrections must have accepted Mr Rawiri’s explanations for non-compliance otherwise he would have been charged with breaching his bail conditions. In the absence of evidence on the point, it is difficult for the Court to make a considered assessment of Mr Rawiri’s bail compliance, although three incidents of non-compliance across two months does suggest Mr Young’s reference to “without incident” is overstated. In any event, we agree with Ms Wynne that if Mr Rawiri was to receive a discount for the 10 months he spent on EM bail, it would likely have been in the range of two to four months.[25] We also agree that it would have been open to the Judge to give uplifts for Mr Rawiri’s previous relevant criminal history and his offending while on bail and subject to a sentence.[26]
[25]Agar v R [2021] NZCA 350 at [49]; and Parata v R, above n 22, at [15].
[26]Sentencing Act 2002, s 9(1)(c) and (j).
Despite Mr Rawiri being 24 at the time of the offending, he has an extensive criminal history in both the District Court and the Youth Court. For example, there is violence and driving related offending in November 2020, including aggravated assault, threatening to kill and two convictions for presenting a firearm (for which he was sentenced to one year and six months’ intensive supervision). There are convictions in June 2020 for serious driving offending and assault with intent to injure (for which he was disqualified from driving and sentenced an effective term of five months’ imprisonment) and before that, convictions in May 2019 and July 2017 for breaching release conditions. The combination of these, together with the fact that the index offending was committed while Mr Rawiri was on bail and subject to sentence, might well have justified an uplift which would have subsumed any relatively modest discount for time spent on EM bail.
For these reasons, we are satisfied that even though Mr Rawiri may have been eligible for a discount for time spent on EM bail, a different sentence should not be imposed.
Furthermore, standing back and reviewing the sentence in its totality, it is difficult to see how an end sentence of 27 months’ imprisonment could be described as manifestly excessive having regard to the nature and number of charges, their seriousness, and the temporal spread of the offending across several separate incidents.
It follows that we are satisfied that the sentence imposed was not manifestly excessive.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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