Rewi v Police

[2016] NZHC 2928

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000330/331 [2016] NZHC 2928

BETWEEN

DILLON REWI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 December 2016
Counsel:	N G Cooke for Appellant H D Benson-Pope for Respondent
Judgment:	5 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel: N Cooke, Auckland.

Kayes Fletcher Walker, Manukau.

REWI v POLICE [2016] NZHC 2928 [5 December 2016]

[1]      On 2 September 2016 Judge Bergseng sentenced the appellant to a term of 21 months’ imprisonment in relation to eight charges: two of driving while disqualified; dangerous driving; failing to stop; refusing to provide a blood sample; giving the Police false particulars; possessing methamphetamine; and finally, breaching release conditions.1   The appellant contends the sentence is manifestly excessive and ought not to have been any longer than 18 months’ imprisonment.

Background

[2]      The offending comprised two incidents.

[3]      On 19 April 2016, the appellant was driving in Otara.  He was stopped by the Police.  The appellant admitted he was a disqualified driver.  He was charged with driving while disqualified, being a third or subsequent offence.  The appellant was released on bail.  Nothing about his driving on this occasion—but for the fact he was driving while disqualified—was remarkable.

[4]      That is not true of events of 9 July 2016.  The appellant was driving, again in Otara.    He  was  stopped  by  the  Police.    The  appellant  gave  his  name  as  a Mr Jack Anderson.     He  drove  away  before  the  Police  could  ask  for  further information.   They gave pursuit.   The appellant failed to stop.   He drove at high speeds for approximately three kilometres.  He crossed the centre line on more than one occasion.  He eventually stopped the car and ran away.  The appellant was found in the laundry or wash-house of a nearby home.  Found with him was 0.9 grams of methamphetamine.  The appellant appeared to have recently consumed alcohol.  He refused to carry out a breath screening test or permit a blood sample to be taken.

Sentencing below

[5]      The   Judge   noted   the   pre-sentence   report   recommended   a   term   of imprisonment.  The Judge also noted the appellant’s responses to earlier community- based sentences had been poor.   His Honour was mindful of the appellant’s 14 previous convictions for Land Transport Act offences and troubled that there was

little sign of abatement.

1      Police v Rewi [2016] NZDC 17217.

[6]      The Judge adopted a starting point of 14 months’ imprisonment in relation to the charge of refusing a blood specimen.  His Honour uplifted that starting point by six months for the other July offences, by four months for the April offending, and by four months for the appellant’s criminal history.  The Judge afforded the appellant a 25 percent discount for his guilty pleas, resulting in a sentence of 21 months’ imprisonment.

[7]      The Judge was anxious of risk:2

The sad reality for you Mr Rewi is, you are either going to kill someone, or kill yourself, and if you continue to offend in this way, the only responsible outcome, as far as the Court and society is going to be concerned, is to put you away out of circulation for periods that become longer and longer.  The sentence I have imposed is the least that in my view I can responsibly impose.  So, you know from this point on it is only going to get longer.

Appellant’s case

[8]      For the appellant, Mr Cooke responsibly accepts a term of imprisonment was required, but submits the term is manifestly excessive and ought not to have been longer than 18 months’ imprisonment.  Mr Cooke referred to what he described as an “unusual jump” in terms of severity from the previous sentences imposed upon the appellant in relation to Land Transport Act offending.  He invited attention to what he described as a breach of the totality principle, submitting even if the individual components of the sentence were justifiable, the overall result was not.

Analysis

[9]      A number of cases were cited in argument.   It is sufficient to refer to two:

Muhinda v Police,3 and Paparoa v Police.4

[10]     In   Muhinda   the   defendant   was   sentenced   to   a   term   of   two   years’ imprisonment in relation to two charges of driving while disqualified, refusing to supply a blood specimen, wilful damage, common assault and careless driving.  As

here, some of the offending was committed while on bail.  On appeal, Dunningham J

2      Police v Rewi, above n 1, at [18].

3      Muhinda v Police [2015] NZHC 2024.

4      Paparoa v Police HC Auckland CRI-2009-404-000189, 18 August 2009.

considered the individual components of the sentence were justifiable, but that the Judge at first instance had erred in failing to apply the totality principle.  The Judge reduced the sentence by three months, to 21 months’ imprisonment.

[11]     In Paparoa the defendant also received a term of two years’ imprisonment. That case involved two charges of driving while disqualified, failing to stop, refusing to provide a blood specimen, an assault on Police, provision of false information to the Police, and breach of home detention.  The offending was spread across three incidents.  Some of it occurred while the defendant was on bail.  Wylie J concluded the two-year term was available but “stern”.   His Honour found there had been insufficient  credit  for the defendant’s  guilty pleas.    He  reduced  the  term  to  18 months’ imprisonment to reflect that.

[12]     I refer to one case not cited in argument.  In Kahukura v Police the defendant was  convicted  of  driving  while  disqualified,  dangerous  driving,  failing  to  stop, driving with excess breath alcohol causing injury, and refusing a blood specimen.5

The sentencing Judge adopted a starting point of 15 months’ imprisonment, which was uplifted by six months, and discounted by 25 percent to arrive at a final sentence of 16 months’ imprisonment. An appeal to this Court was dismissed.

[13]     These cases reveal substantial terms of imprisonment may be imposed on a defendant who commits a cluster of Land Transport Act offences over two or more incidents, at least when there is repeated driving while disqualified offending and offending on bail.

[14]     This case has similarities to Muhinda and Paparoa, both in terms of its nature and its seriousness.  As will be recalled, those cases involved substituted terms of 21 and 18 months’ imprisonment respectively.  So, in terms of authority, the sentence is not obviously manifestly excessive.

[15]     There are two answers to Mr Cooke’s submission the sentence represents a

sharp escalation in penalty.  The first is this offending is more serious.  The second is

the appellant continues to offend, and so a much more serious sentence was to be expected.

[16]     Mr Cooke submitted that the appellant is not in the category of extreme offenders.  I agree.  However, that does not address the nature of his driving or the risk of harm to others on this occasion.

[17]     As to totality,  I accept  the Judge failed to expressly have regard to  this consideration.    However,  the Judge was  plainly mindful  of the need  for public protection.   That is an important consideration protected by s 7(1)(g) of the Sentencing Act 2002, and a sentencing principle of long pedigree.6

[18]     Standing back, I am not persuaded the Judge’s failure to have explicit regard to totality, or to the level of sentence more generally, constitutes reversible error. The Judge below was plainly troubled by what he saw as the appreciable danger posed to the public by the appellant.  That view was available.  Indeed, the appellant was only released from prison on 17 March 2016.  This offending occurred shortly thereafter.

[19]     The case also has a number of troubling features.   They include offending while on bail, dangerous driving, the likely involvement of alcohol, failure to stop, and the provision of false information—all against the background of a poor Land Transport Act record.   In my view the sentence, while severe, was not manifestly excessive.

[20]     There was argument before me as to whether a reduction of three months in this context would constitute tinkering.   Reasonable minds could disagree on that particular proposition.  I have found it more useful to inquire whether, overall, the sentence was manifestly excessive having regard to its facts and to the cases I have discussed.   As I have said, with reference to them it is stern but not manifestly excessive.

[21]     The appeal is dismissed.

……………………………..

Downs J