Riddle v The the Queen
[2022] NZHC 2226
•1 September 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-443-41
CRI-2022-443-42 [2022] NZHC 2226
TERRANCE RIDDLE v
THE QUEEN
Hearing: 31 August 2022 Appearances:
S Hunt and K R Pascoe for the Appellant
L A Blencowe and R Hicklin for the Respondent
Judgment:
1 September 2022
JUDGMENT OF COOKE J
(Sentence appeal)
[1] The appellant appeals against a sentence of 28 months’ imprisonment, three years’ disqualification from driving, and $3,000 in reparations imposed by the District Court.1 He appeals this sentence on the basis it is manifestly excessive, and that the sentence involves two sets of offending where the sentences should not have been imposed cumulatively.
Background
[2] On 29 October 2021 Mr Riddle had earlier been sentenced to six months home detention for disqualified driving, intentional damage and family violence charges.2
1 New Zealand Police v Riddle [2022] NZDC 13213.
2 R v Riddle [2021] NZDC 21311.
RIDDLE v R [2022] NZHC 2226 [1 September 2022]
The facts leading to this sentence were set out in an earlier sentencing indication of Judge Greig. The appellant was in a relationship with a 23 year old female. He got into an argument with her and she locked herself in her car. The appellant demanded she get out or he would smash the windows. She refused and he then smashed the right rear passenger window and then the driver’s window. She ran to her friend’s house screaming. He ran after her grabbing her from behind and holding her in a bear hug, then walking her to his vehicle before they left together.
[3] A few days later she was at a petrol station and the appellant pulled up. He demanded she tell him who she was sleeping with and to give him her cellphone. She gave him her cellphone and drove off, but he then followed her in his car. After they parked he walked up to her car and punched her in the head through the broken driver’s window. He told her to get out and then he grabbed her and escorted her to his car. When they drove off he repeatedly punched her in the head. He also threatened to kill her. The punches were hard enough to make her see stars. She attempted to climb out of the passenger’s seat window head first while they were driving and he pulled on her to get her back into the car. Her clothing was ripped. When they stopped she ran towards a nearby house screaming for help. He then left the address and was later found by police.
[4] He was charged with three counts of driving while disqualified, two counts of assaulting a female, injuring with intent to injure and threatening to kill. On sentencing Judge Greig noted that his earlier sentencing indication had involved a term of imprisonment somewhere between 24 and 28 months, and that there was opposition to a home detention sentence.3 But he decided to sentence the appellant to home detention acknowledging “that the risk is one that I am taking, one that is opposed by other people”.4 He indicated that the ultimate term of imprisonment would have been 22 months, but bearing in mind the seven months he had already spent in detention six months’ home detention was appropriate.
[5] Some two weeks into this sentence, on 14 November 2021, the appellant cut off his electronically monitored bracelet and absconded. On 22 February 2022, he was
3 At [7].
4 At [7].
sighted by police in a motor vehicle. The appellant drove off at speed, in an attempt to evade the police. He achieved speeds of around 80 to 100 km/h in a 50 km/h zone. The driving was reckless, involving deliberately crossing into the opposing lane, failing to stop at a stop sign and overtaking dangerously. The appellant eventually lost control of the vehicle and crashed into another vehicle, causing injury to its 67 year old driver. He got out of the car and ran away, hiding at a nearby property until located and arrested. Police seized the vehicle he was driving and located 1.2 grams of crystal methamphetamine and 36.6 grams of cannabis head.5
[6] As a result of this offending, the appellant was charged with breaching home detention conditions, reckless driving, failing to stop for blue and red flashing lights and siren (third or subsequent), failing to stop after an accident to ascertain injury, possession of methamphetamine and possession of cannabis.
[7] On the resentencing exercise Judge Cooper first resentenced on the initial charges. He noted that the starting point reached by Judge Grieg across all charges was 38 months, reduced by 10 months for his guilty pleas and a further six months for s 27 factors. The adjusted starting point before conversion to a sentence of home detention had been 22 months.6 The Judge accepted appellant counsel’s submission that the starting point of 22 months’ imprisonment should be reduced by two months.7 This led to a sentence of 20 months’ imprisonment.8
[8] With respect to the new charges, the Judge accepted the submission for the appellant that a global starting point of 15 months was appropriate.9 The Judge then gave discounts of 25 per cent discount for his guilty pleas and 20 per cent for remorse and restorative justice efforts, resulting in an end sentence of eight months’ imprisonment.
[9] The sentences were imposed cumulatively, leading to an end sentence of 28 months.
5 New Zealand Police v Riddle, above n 1, at [13].
6 At [11].
7 At [12].
8 At [15(a)].
9 At [14].
Approach on appeal
[10] Appeals against a sentence arise under s 244 of the Criminal Procedure Act 2011. Under s 250(2) the appeal must be allowed if the appeal Court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. The focus is on the end sentence reached and whether it is within the available range, rather than the process by which it is reached.10
Assessment
[11] On appeal the appellant contends that the procedure that has been followed for the resentencing and the new sentencing has led to an excessive sentence. It is focused on more procedural or technical aspects of the sentencing exercise.
[12] The appellant argues that by the time of the resentencing exercise in July 2022 the appellant had already spent the amount of time that he would have been required to spend in prison under the sentence for the original offending. Under s 86(1) of the Parole Act 2002 the release date for a sentence of two years’ imprisonment or less is half the sentence. In effect it is submitted that his total period in custody should have been treated as time served on a 22 month sentence, such that it was only the sentence for the second set of offending that was relevant (which would also have been a sentence of short duration). But because the two matters have been sentenced together his combined sentence of 28 months is no longer under two years, and he loses the right to be released after serving half the sentence. His sentence end date is now 5 November 2023, he must now appear before the Parole Board for any earlier release, and his chances of parole are now potentially affected by the absconding and associated offending.
[13] He advances this argument in a number of related ways. The appellant first contends that the eight month period of imprisonment should not have been imposed cumulatively on the 20 month period of imprisonment for the first set of offending. It is argued that s 83(2) of the Sentencing Act 2002 applies. This provides:
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
83 Cumulative and concurrent sentences of imprisonment
…
(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.
…
[14] It is argued that, because the appellant had served half the time that would have been involved in the sentence of 22 months by the time of the resentencing exercise this sub-section applies.
[15] I do not accept that submission for two related reasons. First I do not accept that the appellant was subject to a sentence of 22 months’ imprisonment which he had begun serving, but which he was no longer detained under. He had in fact been sentenced to home detention, a sentence which he had absconded from. The sentence of 20 months’ imprisonment had yet to be imposed on the resentencing exercise. The words “no longer detained” in s 83(2) are not directed to someone who has escaped or absconded. Secondly, as Ms Blencowe submitted, under of s 82 pre-sentence detention must not be taken into account in the sentencing exercise. That is because pre-sentence detention is automatically addressed as part of the calculation of the time a prisoner serves on a sentence. In effect the appellant is seeking to argue that the total period he has spent on remand should be taken into account, and that it should have been recognised he had already served all the time he needed to under the first sentence, and that this falls within s 83(2). That is not appropriate given the terms of s 82.
[16] The appellant’s next point is that, in any event, the sentences should have been imposed as concurrent sentences rather than cumulative sentences under ss 83 and 84. But that cannot be appropriate in circumstances where a defendant fails to comply with an original sentence of imprisonment (by escape, or absconding from a home detention sentence) and they are caught and are brought back before the Court. Any sentence for the escape/absconding, and any further offending committed during that period, would likely need to be imposed cumulatively on the first sentence. Otherwise
the offender would effectively receive no further sentence associated with the absconding/escaping and any further offending. Cumulative sentences would very likely be appropriate in those circumstances.
[17] Ms Hunt also argued that each of these sentences should have been dealt with separately from an administrative perspective. She argued that two separate sentencing hearings could have taken place — one in relation to the resentencing of the original offending (following which the appellant could have been released on the 20 month prison term on the basis of time served), followed by a separate sentencing exercise for the new offending where he could have been sentenced to eight months’ imprisonment (where he could then have been released after four months). She argued that this is how this sentencing should have occurred.
[18] I do not accept this. Separating out the two sentencing exercises administratively to manipulate the outcome would not have been appropriate. The legislation contemplates how further offending is to be addressed in the sentencing exercise by the provisions that regulate when concurrent and cumulative sentences should be imposed, and in providing that pre-sentence detention should be ignored. It is not appropriate to avoid that statutory regime by administrative decision-making. The legislation does not contemplate separate sentencing exercises in cases such as this. It is also unrealistic to separate out the requirement to re-sentence an offender following a failure to comply with an original sentence from the sentencing for the offending for his failure to comply with it. They are inherently inter-related.
[19] The appellant’s real point comes down to one based on the totality principle arising under s 85. His only real argument can be that the overall sentence of 28 months’ imprisonment is manifestly excessive given the nature of his offending. That point was not addressed in the appellant’s written submissions, or pressed in oral argument. But it seems to be the only basis upon which the sentence could be criticised. Given the nature of the offending described above I do not accept that the overall sentence is manifestly excessive. There was serious domestic violence involved in the first set of offending, a breach of a home detention sentence almost immediately after the first sentence was imposed, and then further offending of some seriousness in attempting to evade police by driving in a reckless manner, and causing
an accident that injured a further person without stopping. It cannot be said that 28 months is a manifestly excessive sentence in those circumstances.
[20] What has really happened here is that the appellant’s further offending has pushed his sentence from one of two years or less, where release is automatic after serving half the sentence under s 86(1) of the Parole Act, to one that is over two years where he can only be released by decision of the Parole Board after serving one third of the sentence under s 84(1). But the fact that his further offending pushes him over that line so that it is no longer a sentence of short duration does not mean that the sentence is manifestly excessive.
[21]For these reasons the appeal is dismissed.
Cooke J
Solicitors:
Nicholsons Lawyers, New Plymouth for Appellant C & M Legal, New Plymouth for Respondent
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