Rawiri v Police

[2022] NZHC 2466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000221

[2022] NZHC 2466

BETWEEN

DANIEL RAWIRI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 September 2022
Counsel:	AYH Young for Appellant SE Arnerich for Respondent
Judgment:	29 September 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 29 September 2022 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Manukau. AYH Young, Auckland.

RAWIRI v POLICE [2022] NZHC 2466 [29 September 2022]

The case

[1]    Daniel Rawiri appeals a 27-month term of imprisonment for a raft of offences, including some that are serious. Mr Rawiri’s primary contention is that the starting point was too high. An appeal must be allowed if there is an error in the sentence and a different one should be imposed.1

Background

[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 the 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 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 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

1      Criminal Procedure Act 2011, s 250(2).

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 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 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
	Unlawful possession of a firearm
	Unlawful possession of ammunition

[7]    Mr Rawiri pleaded guilty 8 April 2022. On 30 June 2022, Judge C J Field imposed a term of 27 months’ imprisonment.2 The Judge adopted a global starting point of 43 months’ imprisonment. It comprised a host of smaller sentences, which

2      Police v Rawiri [2022] NZDC 12444.

were made cumulative.3 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.

The appeal

[8]    Mr Rawiri contends the starting point was too high. He invites attention to the use of cumulative sentences which, on his behalf, Mr Young argues breached the totality principle. Mr Young also argues the Judge should have made some allowance for “youth”; Mr Rawiri was 24 years of age when he committed most of the offences.

Analysis

[9]    Although Mr Young focussed on the use of cumulative sentences as against longer concurrent terms, this “sort of debate is rather sterile”.4 More important is the overall length of the sentence, which I now explore.

[10]   The mainstay of the starting point was the period of 33 months’ imprisonment for the firearms offences and threat to kill. It comprised 18 months’ imprisonment for the reckless discharge 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.

[11]   This presents as a little too high because the possession and ammunition offences were partially subsumed by the reckless discharge offence. Or, approached the other way, the reckless discharge aggravated Mr Rawiri’s possession of the firearm and ammunition. A starting point of 24 months’ imprisonment for these offences, uplifted by six months for  the threat to kill, results in a lower starting point of       30 months’ imprisonment.5

3      A starting point of 18 months’ imprisonment for the reckless discharge of a firearm offending; a cumulative sentence of nine months’ imprisonment for the possession of a firearm and ammunition offending; a cumulative sentence of six months’ imprisonment for the threatening to kill offending; a cumulative sentence of four months’ imprisonment for the breaches of intensive supervision; and a cumulative sentence of three months’ imprisonment for the driving-related offending.

4      R v Faifua CA287/05, 27 March 2006 at [33].

5      See R v Taikato [2018] NZHC 77 and Blair v Police HC Dunedin CRI-2010-412-10, 13 May 2010.

[12]   The Judge added another 10 months’ imprisonment: four months for the breaches of intensive supervision; three months for the breach of community work; and another three months for the remaining offences. This mix also presents as a little too high because the offences in relation to the breaches of the sentences occurred at around the same time. An overarching starting point of six months’ imprisonment would be about right, in turn producing a global starting point of 36 months’ imprisonment as against 43 months.6

[13]   It follows I accept Mr Young’s submission the starting point was too high, albeit by a somewhat different analysis. This is not the end of the story, however. The Judge deducted 25 percent for Mr Rawiri’s guilty pleas. 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.7 Mr Rawiri pleaded guilty to all charges 8 April 2022, and in consequence of a plea arrangement. Mr Young 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.

[15]   Mr  Young  contends  the  Judge  should  have  reduced  the   sentence   for Mr Rawiri’s age. However, Mr Rawiri already has an extensive criminal history, both in the adult jurisdiction and the Youth Court. Any discount for age would be offset by this factor.

[16]   The Judge disqualified Mr Rawiri from driving for 24 months. I am not persuaded this period is too long. The driving offending was serious.

6      This global starting point also recognises the commission of offences on bail.

7      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[17]   It follows the sentence is not manifestly excessive, the key consideration in any sentence appeal.

Result

[18]The appeal is dismissed.

……………………………..

Downs J