Reynolds v Police

[2025] NZHC 1483

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2025-425-000008

[2025] NZHC 1483

BETWEEN

ETHAN ARTHUR REYNOLDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

3 June 2025

Appearances:

J A T Ross for Appellant

M B Brownlie for Respondent

Judgment:

6 June 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 6 June 2025 at 2.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

REYNOLDS v NEW ZEALAND POLICE [2025] NZHC 1483 [6 June 2025]

Introduction

[1]    Mr Reynolds appeals his sentence of 19 months’ imprisonment imposed on his tenth conviction for driving while disqualified, and charges of possession of a restricted weapon, possession of methamphetamine, and possession of drug utensils.1

[2]    Mr Reynolds says the sentence is manifestly excessive. He argues the starting point of 15 months on the driving while disqualified was out of range and the uplifts applied for the remaining offending and for Mr Reynolds’ history of illegal possession of weapons were, in the circumstances, excessive.

Offending

[3]    As noted, the driving while disqualified was Mr Reynolds tenth such conviction and the seventh in the aggravated form (for a third or subsequent offence).2

[4]    This occurred on 17 September 2024: Mr Reynolds had been disqualified in June.   Police saw his vehicle approaching  an intersection in Invercargill, before   Mr Reynolds completed a U-turn onto Brooke Street. As police entered that street, they observed Mr Reynolds parking the vehicle outside an associate’s address. He admitted driving, stating he had just changed the tyre and was testing it.

[5]    The offending involving drugs and weapons occurred on 17 November 2024. Mr Reynolds was at an Invercargill hotel.

[6]    Cleaning staff observed a methamphetamine pipe and what was described as a pistol in his room. Police were called. They executed a power of search without warrant, of Mr Reynolds, his vehicle and his hotel room. Police found a plastic bag containing 0.38 grams of methamphetamine, five pipes for the use of methamphetamine, a stun gun taser and a replica pistol. Mr Reynolds was charged

1      Police v Reynolds [2025] NZDC 2889.

2      Land Transport Act, s 32(1)(a) and (4)—maximum penalty two years’ imprisonment or $6,000 fine.

with unlawful possession of a restricted weapon,3 possession of methamphetamine4 and possession of utensils.5

Sentence indication

[7]    At a case review hearing before Judge Walker, Mr Reynolds requested a sentence indication on the restricted weapon charge. The Judge indicated six-months’ imprisonment for that charge.

[8]    Counsel for Mr Reynolds, Mr Ross, submits this was given as an indication of the lead charge. Ordinarily, this would suggest that term would be the lengthiest in any multiple charge sentencing outcome. As explained below, this was not the case in the sentence ultimately imposed where the aggravated disqualified driving was adopted as the lead offending.

[9]    I note that while he relies on the indication to challenge the six-month sentencing uplift applied for that offending, Mr Ross does not suggest the sentence overall, as imposed, entails a material departure from the sentence indication.

[10]   If so, this would require opportunity for the appellant to seek leave to vacate his pleas. Mr Reynolds does not wish to do so.

[11]I return to this aspect below as relevant on the appeal.

Sentencing

[12]Sentencing took place before Judge Williams.

[13]   The Judge outlined the nature and extent of Mr Reynolds’ relevant previous convictions. He noted that, at age 30, Mr Reynolds had nine previous convictions for driving while suspended or disqualified and that on the last occasion he was before the

3      Arms Act 1983, s 50(1)(b)—maximum penalty three years’ imprisonment or $4,000 fine.

4      Misuse of Drugs Act 1975, s 7(1)(a) and subs (2)—maximum penalty six months’ imprisonment or $1,000 fine.

5      Misuse of Drugs Act, s 13(1)(a) and subs (3)—maximum penalty one year imprisonment or $500 fine.

court for driving while suspended (third or subsequent) he received a five-month term of imprisonment, with a 12-month further disqualification.

[14]Additionally, the Judge recorded:6

[5]        You also have convictions for other driving matters, possession of utensils, in 2024 possession of an offensive weapon and, in particular, unlawfully carrying or possessing a firearm to which you received a term of imprisonment with leave to apply for home detention.

[6]        Going back from that, in 2023 you were dealt with for unlawfully possessing a pistol or a restricted weapon. It also appears at the same time you were dealt with you do have convictions protection orders, threatening violence, and other matters going back earlier than that.

[7]        In 2021 you were dealt with for a number of matters of which you were sentenced to home detention. You breached that home detention sentence relatively  early  on  in  the  proceedings  and  you  were  re-sentenced  on  23 December 2021. At the same time you were also dealt with for two charges of breaching your home detention conditions.

[15]   Noting Mr Reynolds had received a sentence indication on the charge of possession of the stun gun taser, the Judge confirmed he would honour the indication in relation to that.

[16]   The Judge’s methodology adopted the aggravated driving charge as the lead offence. He assessed the present offending would rightfully attract a starting point of 15 months’ imprisonment. The combined starting point of 15 months for driving while disqualified, plus the six months for possession of the taser, was uplifted by one month for the remaining offending (being the possession of methamphetamine and utensils). This gave a global starting point of 22 months.

[17]   Although pleas were not entered at the first opportunity, the Judge was prepared to allow just over 20 per cent (five months) credit.

[18]   Mr Reynolds’ relevant history of possession of offensive weapons and restricted weapons resulted in an uplift of two months to reflect that aggravating personal factor. No further uplift was applied in relation to Mr Reynolds’ history of

6      Police v Reynolds, above n 1.

driving while disqualified: the Judge noted he had taken that into account setting the starting point for the present offending.

[19]   The end sentence was 19 months imprisonment. The Judge carefully considered whether to convert that term to home detention. He noted Mr Reynolds had cut off the monitoring bracelet when subject to such a sentence in 20217 and his compliance on previous orders had been “superficial” with a “sporadic effort … to engage” in rehabilitative programmes, and a lack of engagement in alcohol and drug counselling and a family violence programme.8 Further, he noted Mr Reynolds’ breaches of electronically monitored bail on the present offending, before observing:9

[22] Your likelihood of re-offending is assessed as high based on your extensive history with very minimal periods of desistance. Your assessment as to harm to others is assessed as medium, due to the presence of violent offending and firearms related offending in your history and the potential for harm in your current driving and drug related offending. What it says is electronic monitoring is not recommended as this is currently not a deterrent to you.

[20]   As he had no confidence at all that Mr Reynolds would comply with the conditions of home detention, the Judge declined to convert the sentence.10

Discussion

[21]   In context of an appeal brought on the basis of manifest excess, the focus is necessarily upon the end sentence, rather than the process by which the sentence is reached.11 I must allow the appeal if I am satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 The appeal court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.13

7      Resulting in a substituted term of imprisonment.

8      Police v Reynolds, above n 1, at [21].

9      Emphasis added.

10     The Judge imposed the mandatory minimum period of disqualification of 12 months, to be cumulative on the current period of disqualification.

11     Ripia v R [2021] NZCA 101 at [15].

12     Criminal Procedure Act 2011, ss 250(2) and 250(3).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Was the starting point available on the disqualified driving (third and subsequent)?

[22]   There are two approaches to setting a starting point for driving while disqualified (third or subsequent).14 The first approach sets the starting point accounting for previous convictions, and the second allocates a starting point for the offence and then uplifts to reflect the defendant’s previous convictions, including driving convictions. Both are principled approaches.15 The Judge adopted the first approach, although both should lead to the same result and reflect the offender’s overall culpability.16

[23]   Mr Ross submits the 15 months starting point for the aggravated driving while disqualified was manifestly excessive, as out of range. He suggests the cases the Judge referred to were of limited utility because they dealt with multiple occasions of disqualified  driving.  Counsel   emphasises   the  “relatively   benign”   nature  of  Mr Reynolds’ driving here, noting there were no other driving offences associated with this incident. Further, having regard to the sentences imposed on the appellant’s most recent such convictions—his eighth and ninth of their kind—the starting point was “a significant step up”. Mr Reynolds’ ninth conviction in 2023, which was accompanied by an aggravated charge of failing to stop and reckless driving, had resulted in five months’ imprisonment,17 and in 2022 on the eighth conviction one month imprisonment was imposed concurrently with other prison sentences on other charges.

[24]   Mr Ross refers to three decisions of this Court, Gordon v Police, Beattie v Police, and Fataiki v Police18 and concedes the cases indicate a starting point “between 12 and 15 months” might have been appropriate on the facts in Mr Reynolds’ case. Nonetheless, Mr Ross relies on  the  comments  of  Gault  J  in  Fataiki  to suggest 15 months was outside that available range based on the much lower previous terms imposed for the appellant’s most recent convictions of this kind.

14 Opetaia v R [2015] NZHC 2532 at [36], citing Peterson v Police HC Hamilton CRI-2009-419- 000011, 20 February 2009 and Drinkwater v Police [2013] NZHC 1036. See also Clark v Police [2019] NZHC 984 at [14]; Beattie v Police [2022] NZHC 2673 at [22]; and Fataiki v Police [2021] NZHC 3446at [28].

15     Fataiki v Police, above n 15, at [29].

16     Clark v Police, above n 15, at [14].

17     Imposed concurrently with a one-month term on the reckless driving charge.

18     Gordon v Police [2023] NZHC 2053; Beattie v Police above n 15; and Fataiki v Police, above  n 15.

[25]   I am not persuaded the starting point the Judge adopted was unavailable, or manifestly excessive.

[26]   While the comparator cases the Judge noted concerned starting points fixed on sentencing for multiple charges of disqualified driving,19 I do not agree they were of limited utility as counsel submits or that they lead the Judge into error.

[27]   I note in particular the Court of Appeal decision of Finch v R.20 The offender was 18 years old and sentenced to 18 months’ imprisonment for one charge of attempting to pervert the course of justice and three charges of disqualified driving (his fifth, sixth and seventh offences for disqualified driving). The High Court Judge had adopted a 14-month uplift for the driving offences (on the six months for perverting justice) and uplifted a further six months to reflect the defendant’s record and offending on bail, before deductions for personal factors and to reflect totality. Reliance on these cases has not produced a starting point which is out of range and the authority of Finch v R indicates the Judge took the correct approach to Mr Reynolds’ sentencing.

[28]   As the cases cited to me by the respondent indicate, the sentence was well within range for a tenth disqualified driving conviction.21 Indeed, there is force in  Mr Brownlie’s submission that the starting point is arguably generous as a higher starting point was available on this offending standing alone, notwithstanding the absence of any other aggravating features of the offending. I note Williams J in Iwikau v Police, upholding a sentence of nine months’ imprisonment for one charge of driving while disqualified (the appellant’s seventh offence) and one charge of failing to remain stopped, observed:22

Authorities … suggest a sentence of between six and 10 months was open to the Judge for a seventh offence. The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences. For instance, a fifth conviction warranted a starting point of two months, while an

19     Finch v R [2012] NZCA 446; McLean v R [2022] NZHC 2902; and Royal v New Zealand Police

HC Palmerston North, CRI 2008-454-41.

20     Finch v R, above n 20.

21     Fataiki v Police, above n 15; Clark v Police, above n 15; Lambert v Police [2022] NZHC 49; and

Jenkins v Police [2018] NZHC 2055.

22     Iwikau v Police [2015] NZHC 2515 at [13] (footnotes omitted).

eleventh conviction was held to warrant a starting point at or around the maximum of two years.

[29]   Further, caution is always required with reference to comparator cases. As decisions of this Court have noted, previous sentencing authorities are of limited assistance, turning as they do on the individual circumstances of the offence and the offender in the particular case.23

[30]   In Fataiki, the appellant’s most recent driving while disqualified convictions were approximately seven years prior. Absent any other aggravating driving features, Gault J noted authorities indicated a range between nine to 15 months was indicated for an eighth charge of  driving while disqualified.  He adopted  a starting point of  12 months, having regard also to the material increase this represented on the term of three months imposed for Mr Fataiki’s historic seventh offence.

[31]   In Mr Reynolds’ case, at (now) 31 years, this offending is his tenth instance of driving while disqualified/suspended in the previous nine years. While there was no additional aggravating aspect of the present offending, it is the combination of the number, duration and recency  of  Mr  Reynolds’  previous  offending  which  sets Mr Reynolds in a different position than was Mr Fataiki. As Gault J noted in Fataiki, it is an aggravating factor of the offence where a sentence of imprisonment imposed for previous driving while disqualified convictions has insufficiently deterred reoffending.24 Regrettably, the sentences imposed in 2022 and 2023 did not deter the appellant from again driving while disqualified.

[32]   Multiple breaches of a disqualification (or suspension) order require a stern response not only because they evince a contempt of the legal process but also a disregard for the public safety risk that such orders aim to prevent. For all these reasons,  no   error  is  disclosed  in  the  15-month  starting  point  identified  for   Mr Reynolds’ persistent driving offending, given the evident lack of deterrence from prior sentences he has received.

23     Haig v New Zealand Police [2017] NZHC 2751 at [25] citing Lord v New Zealand Police [2015] NZHC 1756 at [13].

24     Fataiki v Police, above n 15, at [31].

Was the uplift for the restricted weapon: stun gun taser excessive?

[33]   Mr Ross argues the six-month uplift applied for the charge of possession of a restricted weapon, the taser was excessive.

[34]   He submits that as Mr Reynolds accepted a six-month indication for this charge on the basis it was the lead offence, it should have been adjusted for totality because the sentencing Judge subsequently adopted the disqualified driving as the lead offending. There is an inherent difficulty with this argument as, as noted at [7]–[10], the appellant does not suggest there was a material departure from the sentence indication or seek leave to vacate his guilty pleas and, as I have found, the starting point range for the disqualified driving alone was significantly higher than the indication on the taser charge. Further, these were two sets of discrete offending which warranted cumulative terms. But given the Judge did not specifically address the issue of totality, I accept this component should be re-examined on appeal as counsel seeks. Mr Ross argues three months was appropriate, by reference to two cases where uplifts were upheld on appeal in respect of similar charges but in context of much more serious drug offending comprising the lead offending.

[35]   The charge  of unlawful  possession  of a pistol  or restricted weapon, under   s 50(1)(b) of the Arms Act 1983, carries a maximum term of three years’ imprisonment or a $4,000 fine. The Judge indicated that comparative case law suggested a starting point of 10 months’ imprisonment would be available for this offending standing alone but honoured the sentencing indication of six months on this charge. As counsel notes, the Judge did not cite any particular authority in support of that view.

[36]   Mr Ross relies on Ripia v R and Harris v R.25 In Ripia the appellant pleaded guilty to the following charges: possession of methamphetamine for supply (x 3), possession of cannabis for supply (x 3), supplying cannabis, and possession of cannabis, cannabis oil and cannabis utensils. In addition, he pleaded guilty to two charges of being in unlawful possession of a restricted weapon and one charge of receiving a caravan knowing it had been stolen.

25     Ripia v R [2022] NZHC 984; and Harris v R [2021] NZCA 143.

[37]   The charges were laid resulting from three separate searches at Mr Ripia’s residential address. The first search, on 11 May 2020, uncovered 925 grams of cannabis and evidence of supply.   One taser was found on the second search on     30 September 2020, police also found 73.1 grams of cannabis and 15.5 grams of methamphetamine on this occasion. On 20 November 2020, while Mr Ripia was on bail, police discovered another taser at Mr Ripia’s address and also found

2.1 kilograms of cannabis, evidence of supply and the stolen caravan.

[38]   On appeal, the starting point of seven years’ eight months’ imprisonment was found to be outside the available range; the starting point should have been no more than five years’ nine months’ imprisonment. The Court considered however the Judge “was entitled to apply the uplifts of three months each to reflect the fact that Mr Ripia was found in possession of a taser on two occasions”.26

[39]   In Harris the appellant was sentenced in relation to two discrete sets of offending. In the first, Ms Harris was charged with possession of methamphetamine for supply, possession of heroin, cocaine and GBL, and the unlawful possession of a restricted weapon being a contact taser. The District Court adopted a starting point of four years’ imprisonment for possession of methamphetamine for supply, and a six- month uplift for the taser and other drugs.27

[40]   A further case Ratu v Police28 is instructive; bearing some similarity to the present case but where the sentence construction adopted the weapons charge as the lead offence. The defendant was sentenced to 19 months’ imprisonment on charges of possessing a taser, possession of cannabis and driving while suspended (third or subsequent). The District Court Judge adopted a 12-month starting point for possession of a taser (noting it was aggravated as the defendant was still subject to a court sentence for the same offence) and applied a six-month uplift for driving while

26 Ripia v R, above n 26, at [29].

27 Ms Harris  was  sentenced also for manufacturing methamphetamine which attracted a starting  point of five years’ imprisonment, uplifted by six months for possession of a pistol. Ms Harrison also received a three-month uplift for aggravating factors including removing her EM bail bracelet for which she was convicted.

28 Ratu v Police [2022] NZHC 3450.

suspended, in the aggravated form.29 The Judge applied a further uplift of three months for Mr Ratu’s previous convictions. The Judge declined to convert the sentence to home detention. On appeal the High Court rejected the appellant’s argument that the Judge had erred in his assessment of the facts and determined there was no error in the sentencing process in relation to the facts.30 The appeal was allowed solely on the basis the Judge should have converted the sentence to home detention.31

[41]   Mr Brownlie referred me to the decision of Simon France J in Capstick v New Zealand Police.32 In that case an effective starting point of six months’ imprisonment for possession of an offensive weapon, a sword present in Mr Capstick’s vehicle when he was stopped by police, was not challenged and not disturbed on appeal. I accept Capstick, as the respondent submits, involving similar circumstances for a similar charge with the same maximum penalty, demonstrates a six-month uplift was within range.

[42]   A further decision, R v Catley, is also relevant.33 While the lead offence was possession of methamphetamine of supply and the Judge took a global starting point incorporating all the charges, six months’ imprisonment was imposed on the unlawful possession of a taser, tending to show six months was available and within range.34

[43]   As the cases demonstrate, circumstances and combinations of charges inevitably vary and caution is necessary. But the fact Mr Reynolds’ was not in possession of a commercial quantity of the class A drug—an aspect which was appropriately marked by the unchallenged further uplift of one month—does not render the uplift for the taser excessive, or unavailable.

29     Police v Ratu [2022] NZDC 22369 at [19] and [7] where Judge Greig noted “I think I said nine, perhaps it is eight [previous such convictions]”.

30     Ratu v Police, above n 29, at [15].

31 At [24].

32     Capstick v New Zealand Police [2020] NZHC 714.

33     R v Catley [2017] NZHC 1152.

34 At [38]. The full list of charges was: possession of methamphetamine for supply, possession of methamphetamine, possession of methamphetamine utensil, possession of a pistol and possession of restricted weapon being a taser.

Was the uplift for previous history available?

[44]   As noted, the Judge had regard to Mr Reynolds’ previous history. Plainly this was relevant and I agree with Mr Brownlie it warranted an uplift. Mr Ross submits no more than two weeks’ uplift was warranted.

[45]As the Court of Appeal held in Orchard v R:35

Previous convictions are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.36

[46]   Mr Reynolds has an extensive criminal history with 60 previous convictions in the adult court. Relevantly, he has seven prior convictions for weapons and firearms offences, including charges of possession of an offensive weapon and of unlawful carriage of a firearm or restricted weapon occurring in January 2024.

[47]   The uplift for previous convictions must be proportionate to the previous offending and the starting point for the current offending.37 Mr Reynolds had been sentenced recently to eight months’ imprisonment for possession of an offensive weapon. The uplift the Judge applied represented one third of that imposed on the restricted weapon charge. I accept, as Mr Brownlie submits, the uplift while stern was available. I further note Mr Reynolds’ other previous convictions include assaults, contravening protection orders, threatening to kill/do grievous bodily harm, and behaving threateningly. Given this history of persistent violent offending, I consider a two-month uplift was unimpeachable.38

Totality and conclusion

[48]   I acknowledge that the Judge made no explicit reference to the totality principle. However, I consider the Judge’s acknowledgement that he must impose the

35     Orchard v R [2019] NZCA 529 at [39].

36     Matthew Downs (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA9.15]. See also Te Hau v R [2013] NZCA 431 at [18].

37     Enoka v R [2018] NZCA 185 at [28].

38  There is nothing in the brief sentence indication to suggest the 6-month starting point did or did   not include any uplifts for previous offending. It was therefore open to the sentencing Judge to apply a two-month uplift.

least restrictive sentence available suggests he did not overlook this principle.39 Ultimately, on appeal the enquiry is whether, in all the circumstances, the end sentence was manifestly excessive.

[49]   Stepping back and considering the sentence in its component parts and in totality, I am not persuaded the sentence imposed was out of range or manifestly excessive for Mr Reynolds’ offending. This involved deliberate and continued disregard of court-imposed orders disqualifying him from driving, and repetition of his dangerous habit of possession of illegal weapons, alongside the possession of class A drugs. While the sentence imposed may be on the sterner side, it is not open to me to interfere with the principled decision of the sentencing Judge.

Result

[50]The appeal is dismissed.

………………………………………

Preston J

Solicitors:

Crown Solicitor, Invercargill

Counsel:
J A T Ross, Barrister, Invercargill

39     Police v Reynolds, above n 1, at [14].