Reihana v The Queen - [2016] NZHC 2557

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 Respondent

Judgment:

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, Auckland
Crown 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 2557
Decision Date: 27 October 2016

CaseChat Overview and Summary

Hone Reihana appeals against a two-year-and-five-month imprisonment sentence imposed by Judge Ronayne in the District Court at Waitakere on 14 September 2016. The appeal concerns the appropriateness of the sentence in light of the totality principle, as outlined in section 85 of the Sentencing Act 2002. Mr Reihana argues that the sentence is manifestly excessive when considering the totality principle. The Crown supports the sentence imposed by the District Court Judge, acknowledging it might be seen as stern but maintaining it was within the range available to the Judge. The court must determine whether the end sentence was appropriate and whether a different sentence should be imposed.

The court finds that it was open to the Judge to impose cumulative sentences for the diverse charges. The offending can be categorised into road safety, administration of justice, dishonesty, and drugs. The court acknowledges the difficulty of choosing an end sentence that reflects the totality of the offending. The court concludes that the uplift from the starting point of 15 months to reflect the driving charges and reckless driving by a further 15 months for all other offending was excessive. The court finds that an appropriate uplift would have been no more than 10 months. The court adjusts the starting point to two years and four months imprisonment, and applies a credit of 20 percent for the guilty pleas, resulting in an end sentence of one year and 10 months’ imprisonment.

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. The court substitutes specific sentences for those imposed by the District Court Judge, taking into account the totality principle and the nature and extent of the offending.

Orders