Riddle v Police
[2020] NZHC 1706
•15 July 2020
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2020-443-12
[2020] NZHC 1706
BETWEEN TERRANCE RIDDLE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 July 2020 Counsel:
K R Pascoe for Appellant G N Milne for Respondent
Judgment:
15 July 2020
JUDGMENT OF SIMON FRANCE J
[1] Mr Riddle appeals a final sentence of 13 months’ imprisonment imposed in relation to a number of charges.1
[2] There are two sets of charges. The first set involves two breaches of prison release conditions. The other set stems from what was initially a driving incident on 6 February 2020.
[3] The two charges of breach of prison release conditions involve different circumstances. In December Mr Riddle sought permission to attend a memorial service in Taranaki for a relative who had died in Australia. Permission was declined, but Mr Riddle went anyway. The second offence concerns breaches during the Covid- 19 lockdown. Arrangements were put in place that people required to report could do so by telephone. Mr Riddle failed to do so on three successive weeks. The summary
1 New Zealand Police v Riddle [2020] NZDC 9320.
RIDDLE v NEW ZEALAND POLICE [2020] NZHC 1706 [15 July 2020]
to which he pleaded recorded that he had absconded and his present whereabouts were unknown.
[4] In relation to the second group of charges, on 6 February 2020, just before midnight, police activated their flashing lights in order to pull over the car Mr Riddle was driving. He did not stop and a chase ensued. It lasted 50 minutes, involved speeds up to 160 kph and ended only because Mr Riddle ran out of petrol. The road over which the chase occurred is a gorge road with narrow corners, blind spots and at one point a one-lane bridge.
[5]When arrested following the chase, Mr Riddle was found in possession of
0.8 grams of methamphetamine and a single bullet which was for use in a .44 Magnum pistol. Police believed Mr Riddle to be in an impaired condition, but he declined to give a blood sample.
[6] Mr Riddle pleaded guilty to all charges in circumstances that saw him receive the full guilty plea discount.
[7] Mr Riddle has a significant criminal record. He is 31 years of age. Since 2010 he has received 15 sentences of imprisonment in relation to 19 offences (not counting current offending). Prior to 2010, there was a steady diet of driving offending and lower-level violence and property offending. The most significant jail term is one of five years and three months’ imprisonment in 2014 for aggravated robbery. He was released from this sentence on 23 October 2019.
[8] Relevant to the present sentencing exercise, Mr Riddle has previously been convicted of a large number of driving offences including failing to stop, driving in a dangerous manner and drink driving. This offending stopped when he was jailed in 2014, but prior to that the driving offending was persistent and regular.
Sentencing
[9] The sentencing Judge did not identify a lead offence but instead identified a sequence of individual starting points for each offence, with all starting points being cumulated on the others. The sequence was:
(a)possession of ammunition, three months (four-year maximum);
(b)breach of release conditions, two months for each (12-month maximum);
(c)failing to stop, two months (three-month maximum);
(d)reckless driving, two months (three-month maximum);
(e)refusing blood sample, two months (three-month maximum); and
(f)possessing methamphetamine, two months (six-month maximum).
There was a three-month uplift for “previous breaches of court orders”, leaving a total of 18 months. The Judge did not address totality but applied the guilty plea discount rounded out to five months, leaving the final sentence of 13 months’ imprisonment.
[10] Each aspect of the process is challenged on appeal with the ultimate question being whether any alleged errors have produced a manifestly excessive sentence.
(a) The combined starting point for the offences
[11] Within this topic I consider both the various links that produced the 15-month total, and the issue of totality.
[12] Ms Pascoe focused initially on the penalties for the driving offending. She submitted the Court erred in identifying a chain of cumulative sentences. Other cases had approached these groupings of charges by identifying a single figure for the package. While I agree the latter approach is possible, and may indeed be more common, how the Judge went about the task is of no consequence. The key issue is whether the figure taken as the appropriate starting point for the three driving offences was excessive.
[13] The cases to which I was referred involved the combination of flashing lights and a chase.2 They suggest that for bad examples of reckless driving the maximum reckless driving penalty of three months as a starting point for both offences is appropriate. Here the Judge identified that figure as four months and I agree it is higher than is needed. Accepting a three-month maximum for the reckless driving is appropriate, I do not consider the failing to stop merited a further month penalty. As for the refusal to provide a blood specimen charge, this involves different culpability from the reckless driving, and was not part of the aggravating features meriting the three-month starting point. A separate cumulative sentence was appropriate.
[14] I consider a four month starting point for the breach of release conditions was appropriate. The balance could be different in that the breaches during lockdown are particularly serious whereas the first breach, though wrong, had an underlying context that mitigated the poor decision-making. The whereabouts condition is important both to rehabilitation and public safety. The breaches during lockdown, involving three successive occasions, merited a firm response.
[15] On its face the starting point of two months for the possession of methamphetamine is too severe. At just below a gram it is not a trivial amount but there is no suggestion it was other than for personal use by someone with addiction issues. Imprisonment would not be the normal response, and a two-month cumulative sentence is excessive.
[16] In relation to the three-month sentence for possession of ammunition, there is little precedent to be guided by. However, the circumstances of the possession do not indicate particular risk – it is not associated with drug offending nor with any weapon it is known Mr Riddle had access to. It is offending that is plainly towards the bottom end of this type of offending. Again, standing alone it would not attract imprisonment. Given a sentence of imprisonment was to be the overall outcome, some penalty is appropriate but a cumulative sentence of one month would suffice.
[17] Applying this analysis to the judgment under appeal, I would adjust the cumulative starting point package downwards by four months, which produces a base
2 For example, Sekai v New Zealand Police [2014] NZHC 1348.
figure of 11 months’ imprisonment. I do not consider totality requires any further adjustment to this new figure, but I observe some adjustment for this factor should have occurred in relation to the initial 15 month total. Where the sentencing approach is to cumulate on an individual basis a number of offences, some of which are interconnected, there should be a totality consideration.
(b) The uplift
[18] Ms Pascoe challenges the three-month uplift, noting it was expressed to be imposed only as a response to the number of previous breaches of court orders. I agree that, if that were the sole reason for its imposition, it would be disproportionately high (being 75 per cent of the sentence being imposed for that type of offending).
[19] That said, a three-month uplift is appropriate in the overall circumstances of the case. Mr Riddle’s offending had occurred only around three months after release from a lengthy jail sentence. He was in possession of drugs in breach of his release conditions, and he was again driving recklessly and endangering public safety, this being regular conduct prior to his incarceration. There is a clear need for personal deterrence and protection of the public.
[20] With this uplift, the final starting point now becomes one of 14 months. Applying the same guilty plea discount, the end sentence becomes one of 10 months and two weeks. I recognise that it could be seen as a relatively small adjustment to make on appeal, but it is nevertheless a 20 per cent adjustment, which I consider makes the original outcome manifestly excessive.
Outcome
[21] Perusal of Mr Riddle’s offending history indicates that the sentences finally imposed do not reflect the sentencing notes. Contrary to the structure discussed in this judgment, the Judge signed a warrant that imposed concurrent 10-month sentences for the breach of release conditions, made the three-month sentence for the possession of ammunition cumulative and then imposed concurrent sentences for the balance. Recognising that occasionally modest corrections may be necessary to give effect to
the intent of the sentencing, I do not consider such a significant change should occur as part of the warrant process, even if the final effective sentence is the same. As matters stand there is little correlation between the sentencing remarks and the actual sentences imposed. It further creates an impression of much more serious breaches of the release conditions than is the reality.
[22] I give effect to the appeal by quashing the sentences of 10 months imposed on each of the breach of release condition charges and substitute concurrent sentences of seven and a half months. It would not assist at this stage to further alter the structure of the imposed sentences to better reflect the sentencing remarks. The comments in the appeal judgment are sufficient explanation for the future of the nature of the offending should that become of importance.
[23]All other sentences are unchanged.
[24]The final total sentence is 10 months and two weeks.
Simon France J
Solicitors:
Nicholsons Lawyers, New Plymouth for Appellant Crown Solicitor’s Office, New Plymouth for Respondent
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