Reihana v The Queen
[2016] NZHC 2557
•27 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2016-404-308 [2016] NZHC 2557
BETWEEN HONE REIHANA
Appellant
AND
THE QUEEN Respondent
Hearing: 25 October 2016 Counsel:
M English for Appellant
R M A McCoubrey for RespondentJudgment:
27 October 2016
JUDGMENT OF HEATH J
This judgment was delivered by me on 27 October 2016 at 10.00am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, AucklandCrown Solicitor, Auckland
REIHANA v THE QUEEN [2016] NZHC 2557 [27 October 2016]
The appeal
[1] Mr Reihana appeals against an effective term of imprisonment of two years and five months imposed by Judge Ronayne, in the District Court at Waitakere, on
14 September 2016.1 The sentencing exercise was not easy. It involved a
consideration of an array of diverse charges brought by the Crown, Police and
Department of Corrections respectively.2
[2] Mr English, for Mr Reihana, contends that the sentencing miscarried as a result of the methodology chosen by the Judge to construct the end sentence. Mr Reihana’s complaint is that once the totality principle is applied,3 the sentence must be characterised as manifestly excessive.
[3] Mr McCoubrey, for the Crown, supports the sentence imposed by the District Court Judge. While acknowledging that the end sentence might be seen as stern, Mr McCoubrey submits it was within the range available to the Judge.
Facts
[4] I summarise the facts in chronological sequence.
[5] On 21 August 2015, Mr Reihana appeared for sentence in the District Court at Waitakere having pleaded guilty to two charges of breaching conditions attaching to a sentence of intensive supervision, one of failing to stop, two of possession of an offensive weapon, one of driving while disqualified, one of driving a motor vehicle in a dangerous manner, one of operating a motor vehicle recklessly, one of refusing a request for a blood specimen, one of resisting Police and two of breaching terms of a community work order.
[6] On 21 August 2015, Mr Reihana was sentenced to four months’ home detention, with six months’ post detention conditions. Concurrently, a sentence of 60
hours’ community work was imposed.
1 R v Reihana [2016] NZDC 17868.
2 See para [14] below.
3 The “totality principle” is reflected in s 85 of the Sentencing Act 2002, set out at para [21]
below.
[7] On 15 January 2016, Mr Reihana failed to report for his assigned community work. On 2 and 3 February 2016, he breached terms of his standard post-detention conditions. On 3 February, the breach involved a failure to attend a drug and alcohol programme required by a probation officer.4
[8] On 10 February 2016, the Police went to the appellant’s address and found a Holden Calais vehicle which had been stolen from the Point Chevalier area some two weeks earlier. It was valued at roughly $2000 but was in a state of disrepair having had several parts stripped. Mr Reihana admitted that he had purchased it for
$500 and that he suspected it had been stolen. A methamphetamine pipe was also found in his possession. Mr Reihana received bail but breached his conditions on 26
February. Three days later, he drove while disqualified, having twice been convicted of the same offence in the preceding year.5
[9] At 11.27pm on Saturday 14 May 2016, Mr Reihana was riding a Yamaha motor cycle east along Glen Road, Massey. That is a residential area, with a posted speed limit of 50km/h. Mr Reihana was speeding, and police officers attempted to stop him by activating red and blue lights and sirens. At the time, Mr Reihana was a disqualified driver, having previously been convicted on two separate occasions of the same offence.
[10] Mr Reihana failed to stop. Instead, he accelerated along Glen Road, reaching a speed of approximately 100km/h. He continued to travel east along Glen Road, turning left onto Don Buck Road, reaching speeds of between 90km/h and 100km/h. Mr Reihana was pursued for approximately two kilometres by vehicle, before he was subjected to surveillance from the Police helicopter. Mr Reihana’s riding was considered so reckless that pursuing vehicles ceased to chase.
[11] Despite no visible Police presence, Mr Reihana continued to ride at speed. The lights on the motorcycle were turned off. In that condition, Mr Reihana rode his
motorcycle in various parts of West Auckland, weaving in and out of traffic,
4 Breach of post detention conditions x2, Sentencing Act 2002, s 80U; breach of community work, Sentencing Act 2002, s 71.
5 Receiving, Crimes Act 1961, s 246; driving while disqualified (3rd or subsequent), Land
Transport Act 1998, ss 32(1)(a) and (4); Possession of utensils, Misuse of Drugs Act 1975, s 13.
travelling at speed through blind corners and, on occasions, on the wrong side of the road.
[12] In particular, the pilot of the Police helicopter observed Mr Reihana riding along the wrong side of the North Western motorway, over some 3.6 kilometres, at a speed in excess of 150km/h, with the motorcycle lights off. It was almost an hour later that Mr Reihana stopped outside an address.
[13] Mr Reihana was, at the time of the offending, aged 22 years.
Sentencing in the District Court
[14] In July 2016, Mr Reihana pleaded guilty to charges arising out of the events I
have summarised. He came before Judge Ronayne for sentence on 14 September
2016. The charges to which Mr Reihana pleaded guilty were:
(a) One charge of receiving stolen property, for which the maximum penalty is one of 7 years’ imprisonment
(b)Two charges of driving while disqualified third or subsequent occasion, for which the maximum penalty is 2 years’ imprisonment
(c) One charge of criminal nuisance, for which the maximum penalty is 1 years’ imprisonment
(d)One charge of possession of utensils, for which the maximum penalty is 1 years’ imprisonment
(e) Two charges of breach of post detention conditions, for which the maximum penalty is 6 months’ imprisonment
(f) One charge of reckless driving, for which the maximum penalty is 3 months’ imprisonment
(g)One charge of aggravating failing to stop, for which the maximum penalty is 3 months’ imprisonment
(h)One charge of breach of community work, for which the maximum penalty is 3 months’ imprisonment.
[15] For the purposes of sentencing, the Judge took the two driving while disqualified on a third or subsequent occasion as the lead offences. A starting point of 12 months’ imprisonment was taken for that offending. Lower starting points were chosen for other charges. They were accumulated up to a notional starting point, inclusive of all aggravating factors, of three years’ imprisonment. Credits for mitigating factors were deducted from that adjusted starting point.
[16] Judge Ronayne regarded the reckless nature of Mr Reihana’s driving as a significant aggravating factor.6 The Judge described the driving conduct as “prolonged”, the resulting “danger” as “extreme”, and that “danger” exacerbated by Mr Reihana’s decision to turn off his lights while riding.7
[17] In sentencing, Judge Ronayne said:
[16] I take a starting point on the two driving while disqualified charges third or subsequent, that is CR number ending 1545 on 29 February 2016, and the Crown driving while disqualified, CR number ending 3632 on 14
May 2016, of 12 months’ imprisonment. For the reckless driving charge that is CR number ending 3629, I take the view that a starting point for that should be the maximum of three months’ imprisonment. For the criminal nuisance that is CR number ending 3630, it is my view that an appropriate starting point for that discretely would be one of nine months’ imprisonment and for the failing to stop, two months’ imprisonment.
…
[20] However to the 27 months starting point, that is the one that I adopted for both of the disqualified driving charges, the reckless driving, the criminal nuisance and the failing to stop, an overall uplift for all of the remaining charges for which I have just identified discrete starting points should be nine months. That means, again at a notional level at this stage Mr Reihana, I add nine to 27 and get to 36 months, three years. I do not consider, bearing everything in mind, that there should from that be any adjustment for totality. That starting point in my view adequately addresses the purposes and principles of sentencing and your overall criminality. From
6 By reference to Sekai v Police [2014] NZHC 1348 at para [19].
7 R v Reihana [2016] NZDC 17868 at para [15].
the 36 months’ notional sentence I give you approximately a 20 percent discount for your guilty plea of seven months. That then reduces the sentence down to one of 29 months’ imprisonment. That, of course, is two years and five months.
Analysis
[18] A first appeal against sentence is determined by reference to s 250 of the Criminal Procedure Act 2011. Section 250(2) requires a first appeal court to allow the appeal if satisfied that there were an error in the sentence imposed and a different sentence ought to be imposed.
[19] In Tutakangahau v R8 the Court of Appeal considered whether that approach differed from that previously applied. The Court emphasised that the question for the first appeal Court is whether the end sentence was wrong. Delivering the judgment of the Court of Appeal, Ellen France J said:
[36] We also need to address the appellant’s criticism of Brown J’s observation that the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.35
That statement reflects the current approach in the sense that the focus is on the sentence imposed rather than the process by which the sentence is
reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases. However, we need to acknowledge that there may be cases, although not common, where what has gone wrong is
such as to require correction albeit the sentence imposed is within range. A
straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the
sentencing judge at the time. In those circumstances, we expect the appeal
court will impose the corrected sentence, giving effect to the sentencing
judge’s intentions.
[20] Counsel for both Mr Reihana and the Crown recognised the difficulties inherent in choosing an end sentence to mark Mr Reihana’s varied offending. Nevertheless, Mr English took issue with the way in which the Judge used his power to accumulate sentences in order to reach an outcome designed to reflect the totality of the offending.
[21] The power to accumulate sentences and the need to impose an end sentence that reflects the totality of the offending is reflected in ss 83, 84 and 85 of the
Sentencing Act 2002:
8 Tutakangahau v R [2013] 3 NZLR 482 (CA).
83 Cumulative and concurrent sentences of imprisonment
(1) A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given.
(2) Despite subsection (1), a court may not impose a sentence of imprisonment cumulatively on another sentence of imprisonment if, at the time of sentencing, the offender is subject to a sentence of imprisonment but, having commenced serving the sentence, is no longer detained under it.
(3) For the purposes of subsection (2), a person who is detained under an interim recall order under the Parole Act 2002 is not detained under the sentence to which the interim recall order applies.
(4) An indeterminate sentence of imprisonment must not be imposed cumulatively on any other sentence.
(5) Any sentence of imprisonment may be imposed concurrently with any other sentence of imprisonment.
(6) For the purpose of this section, a term of imprisonment imposed on an offender (whether by committal, sentence, or order) in respect of the non- payment of a sum of money, contempt of court, or disobedience of a court order is deemed to be a determinate sentence of imprisonment.
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.
[22] I am satisfied that it was open to the Judge to impose cumulative sentences. The offending for which Mr Reihana was sentenced can be characterised under four different headings:
(a) Road safety: The charges of reckless driving and failing to stop fall into this category
(b)Administration of justice offending: Breaches of Court orders fall into this category; most notably the previous orders disqualifying Mr Reihana from holding or obtaining a driver licence
(c) Dishonesty: The charge of receiving stolen property falls into this category
(d)Drugs: Albeit at the very low level, the possession of a utensil, a methamphetamine pipe, falls into this category.
[23] The circumstances in which it may be appropriate for cumulative sentences to be imposed, where offences are different in kind, was discussed by the Court of Appeal in Hughes v R.9 In that case, the Court considered whether it was appropriate
for cumulative sentences to be imposed in respect of offences of driving while
9 Hughes v R [2012] NZCA 388.
disqualified and driving with an excess breath or blood alcohol concentration where the offences arose out of the same events. Confirming the effect of its earlier judgment in R v McQuillan,10 the Court of Appeal held that jurisdiction to impose cumulative sentences existed.11
[24] In endeavouring to provide guidance as to the circumstances in which cumulative sentences are appropriate, Randerson J, delivering the judgment of the Court of Appeal in Hughes, said:
[26] Applied to the present case:
(a) If concurrent sentences of imprisonment were to be imposed:
·
·
They must reflect the seriousness of each offence.
They could not exceed the maximum available sentence
of two years imprisonment in each case. ·
The most serious offence must receive the penalty that is appropriate for the totality of the offending and the lesser offence must receive the penalty appropriate to that offence.
(b)
If
cumulative sentences of imprisonment were to be
imposed:
· They must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
· Longer concurrent sentences (or a combination of concurrent and cumulative sentences) must be preferred if the need to ensure the total cumulative sentence is not disproportionately long, would result in a series of short sentences that individually fail to reflect the seriousness of each offence.
(footnotes omitted)
[25] Having set out relevant principles, Randerson J concluded that part of the
Court of Appeal’s judgment by saying:
[29] We see these principles having application to sentencing in cases such as the present. We would add that, in arriving at the appropriate
10 R v McQuillan CA129/04, 12 August 2004.
11 Hughes v R [2012] NZCA 388, at paras [19] and [20].
sentence, the Court must have regard to all the provisions of the Sentencing Act relevant to the case. We also accept Ms Vidal’s submission that the general approach to sentencing described by this Court in Taueki [R v Taueki [2005] 3 NZLR 372 (CA)] should be applied, although a busy District Court Judge sentencing in cases of this kind need not carry out this exercise with the degree of rigour called for in more serious cases. On appeal, it is the appropriateness of the final sentence that counts, not how it is made up.
[26] In this case, the sentencing Judge’s difficult task was to impose a series of sentences that, together, could adequately reflect the nature and extent of the offending. He was guided, particularly in relation to the driving charges, by the sentencing goals of denunciation, deterrence and accountability. The Judge was dealing with a relatively young man, aged 22 years, who had appeared previously before the Court on multiple occasions and who had already accumulated more than three convictions for driving while disqualified. Despite Mr Reihana’s age, the nature and extent of his offending called for a condign sentence.
[27] As required by Tutakangahau v R,12 I must determine whether the end sentence of two years’ and five months’ imprisonment was within the range available to the Judge. In making that determination, I leave to one side the credits given for mitigating factors and the uplift of three months to reflect previous offending, and focus on the appropriateness of the accumulated starting point of three years’ imprisonment.13
[28] The starting point of 15 months’ imprisonment to reflect the charges of driving while disqualified and reckless driving14 cannot, in my view, be gainsaid. The question is whether it was appropriate to uplift that by a further 15 months to reflect all other offending.
[29] In my view, such an uplift was excessive. When one considers the nature of the additional charges and (save for the failing to stop charge) the relatively low level for each, an appropriate uplift would have been no more than 10 months. I
reach that view, primarily, because the failing to stop charge was so intertwined with
12 Tutakangahau v R [2014] 3 NZLR 482 (CA) at para [36], set out at para [19] above.
13 R v Reihana [2016] NZDC 17868 at para [20], set out at para [17] above.
14 Ibid, at para [16], set out at para [17] above.
the reckless driving that a discrete uplift of nine months for that particular charge was excessive.
[30] On that view, the notional starting point from which an uplift for prior offending and credit for the guilty pleas should have been applied was two years and one month’s imprisonment, or 25 months.
[31] I add to that the uplift of three months imprisonment for prior offending, which adjusts the starting point upwards to two years and four months imprisonment. From that, I apply a credit of 20 percent for the guilty pleas. Rounding that to six months, the end sentence becomes one of one year and 10 months’ imprisonment. The difference between that end sentence and the effective term imposed in the District Court results in the sentence being manifestly excessive.
[32] As it is accepted that a sentence of imprisonment was required to mark the offending, no question of commuting the sentence to one of home detention arises.
Result
[33] The appeal is allowed. The end sentence imposed by the District Court is set aside and in substitution one of one year and 10 months’ imprisonment is imposed.
[34] To achieve that end result, the following sentences are substituted for those imposed by the District Court Judge:
(a) On each of the charges of driving while disqualified on a third or subsequent occasion and criminal nuisance, a sentence of one year and two months’ imprisonment is imposed, all to be served concurrently.
(b)On each of the charges of disqualified driving and reckless driving, a sentence of three months’ imprisonment is imposed, to be served concurrently with the sentences in respect of (a) above.
(c) On the failing to stop charge, Mr Reihana is convicted and discharged.15
(d)On the receiving charge, a sentence of six months’ imprisonment is imposed, cumulative on the sentence in respect of (a) and (b) above.
(e) On each of the remaining charges, a sentence of two months’ imprisonment is imposed. As among themselves, they are to be served concurrently but that sentence is to be cumulative on the sentences in respect of (a), (b) and (d) above.
(f) All other non-custodial sentences remain in place.
[35] I thank counsel for their assistance.
P R Heath J
Delivered at 10.00am on 27 October 2016
15 Although the District Court Judge imposed a sentence of two months’ imprisonment on this charge (R v Reihana [2016] NZDC 17868 at para [20], set out at para [17] above) the maximum penalty is a fine of $10,000. I decline to impose a fine as Mr Reihana has no means to pay.