Riwai v Police
[2018] NZHC 2283
•31 August 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-485-000059
[2018] NZHC 2283
BETWEEN TEPIWA MICHAEL PETER KEREMETE RIWAI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 31 August 2018 Counsel:
C J Nicholls for Appellant
A W M Britton for Respondent
Judgment:
31 August 2018
JUDGMENT OF COLLINS J
Introduction
[1] Mr Riwai was sentenced to two months’ home detention for operating a vehicle in a race1 by Judge Tompkins on 22 August 2018 in the District Court at Hutt Valley.2
[2] Mr Riwai appeals his sentence on the basis that two months’ home detention is the equivalent of four months’ imprisonment, which exceeds the maximum sentence.
Summary of offending
[3] On 8 March 2018, Mr Riwai was driving a Holden Commodore north on State Highway 2 near Lower Hutt. This stretch of road has a 100 km/h speed limit.
1 Land Transport Act 1998, s 36A(1)(a); maximum penalty three months’ imprisonment.
2 New Zealand Police v Riwai [2018] NZDC 17883.
RIWAI v NEW ZEALAND POLICE [2018] NZHC 2283 [31 August 2018]
Mr Riwai held a learner licence at the time, and was driving in breach of the conditions of that licence as he was not accompanied by a fully licenced person. He was, however, accompanied by his partner, who holds a restricted licence.
[4] Somewhere between Avalon and the Haywards Hill interchange, the driver of another Holden Commodore pulled up alongside Mr Riwai. The two drivers then engaged in a race, with Mr Riwai reaching speeds of 212 km/h, and the other driver reaching speeds of 186 km/h. There were other vehicles present on the road at this time. The two vehicles were observed by a stationary police officer, who “clocked” their speeds using speed detection equipment. Mr Riwai was then stopped and arrested. His licence was suspended and his Holden Commodore was impounded.
[5] Mr Riwai explained to police that he had thought he had recognised the other driver and wanted to get away from him. However, he admitted that this developed into a race and he accepted that this was dangerous to the public and to himself.
District Court decision
[6] Judge Tompkins sentenced Mr Riwai to two months’ home detention and disqualified him from driving for 18 months. In imposing this sentence, the Judge referred to Mr Riwai’s driving history:3
In November 2016 Mr Riwai was sentenced to imprisonment for a number of charges which included dangerous driving, failing to stop for red and blue flashing lights, failing to stop to ascertain injury, and a separate incident of dangerous driving.
… Mr Riwai [also has] convictions for dangerous driving in 2004 and 2006, and, in addition, has a number of convictions for driving whilst disqualified and driving whilst suspended.
Sentence appeals
[7] Section 250 of the Criminal Procedure Act 2011 requires the Court to allow an appeal against sentence if:
3 New Zealand Police v Riwai, above n 2, at [4]–[5].
(1)for any reason, there is an error in the sentence imposed on conviction; and
(2)a different sentence should be imposed.
[8] The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.4 The Court of Appeal has also explained:5
The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
[9] If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error in the steps it took to reach that end sentence.6
Grounds of appeal
[10] The appeal is advanced on the basis that two months’ home detention is the equivalent of four months’ imprisonment, which exceeds the maximum sentence. Mr Riwai objects to the fact he was not given a discount to reflect his guilty plea.
Submissions
[11] Mr Nicholls, counsel for Mr Riwai, takes no issue of the fact that a sentence of home detention was given, but objects to the length of that sentence. He accepts that a starting point around the maximum sentence of three months’ imprisonment was warranted, but submits that Judge Tompkins gave no express discount for his guilty plea. He also submits that the end sentence of two months’ home detention was manifestly excessive because the equivalent sentence of imprisonment would be over the three-month maximum penalty for the offence.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
5 At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].
6 Ripia v R [2011] NZCA 101 at [15].
[12] Mr Nicholls accepts that the Court of Appeal in R v Bisschop held that the practice of halving a notional sentence of imprisonment to determine the appropriate length for a sentence of home detention is just a convention (the halving convention).7 However, he seeks to distinguish cases that have differed from the halving convention8 from the present case on the basis that those cases did not involve a sentence that was effectively over the maximum penalty. He seeks to draw an analogy with Gerrard v Police, where Nation J allowed an appeal on the basis that the halving convention had not been followed in the context of a pre-existing statutory release date.9 Mr Nicholls submits that failing to take into account the statutory release date is similar to failing to take into account the maximum penalty.
[13] Mr Nicholls submits that a sentence of five weeks’ home detention would have been appropriate in this case.
Analysis
Gerrard v Police
[14] I do not regard the decision in Gerrard v Police as helpful in the present circumstances. I do not understand Nation J to have been departing from the established principles set out by the Court of Appeal in Bisschop. I note that Moore J made the same observation about Gerrard v Police in Henry v Police.10
[15] The context for Gerrard v Police was that the defendant had successfully appealed his 25-month sentence of imprisonment and had applied to the District Court to have his new sentence of 23 months’ imprisonment substituted for home detention. The District Court substituted a sentence of eight months’ home detention, taking into account seven months that the defendant had already served in prison. The effect of this was that the defendant’s home detention would not have ended until approximately three months after what would have been the statutory release date.
7 R v Bisschop [2008] NZCA 229 at [18]–[19].
8 Referring to Henry v Police [2018] NZHC 394; and R v Caine [2014] NZHC 2330.
9 Gerrard v Police [2016] NZHC 3130.
10 Henry v Police, above n 8, at [29].
[16] While Nation J’s judgment focused on the statutory release date, it is clear from reading the judgment that the District Court Judge had intended to apply the halving convention, but made a mistake in the subsequent calculations. Had the District Court applied the right methodology it would have reached an end sentence of five months’ home detention, which is what Nation J imposed on appeal.
[17] Accordingly, the result in Gerrard v Police is best understood as the correction of a mathematical error that arose out of the need to account for time served when resentencing a defendant to home detention. It was not a case where the sentencing Judge deliberately departed from the halving convention. Nation J’s comments should not be read as detracting from the general principle in Bisschop, nor should they be read as creating a general requirement for a sentencing Judge to give reasons for departing from the halving convention. As Moore J observed in Henry v Police, in approximately half of the relevant cases, the sentencing Judge did not give reasons for departing from the halving convention.11 Moore J concluded that it was “best practice” to give reasons, but that a failure to do so would not be fatal on appeal.12
Maximum penalties
[18] The question in this case is whether the maximum penalty has any relevance in setting the length for a sentence of home detention. Section 80A of the Sentencing Act 2002 provides that the Court may set the length for a sentence of home detention “for such period as the court thinks fit” between 14 days and 12 months. The Court will exercise this discretion by engaging in an “evaluative assessment of all the circumstances” including the purposes and principles of the Sentencing Act.13 It may well be that in the majority of cases, this assessment will coincide with half of the sentence of imprisonment that would otherwise have been imposed, but this will not always be the case. In that respect, the process of halving is a useful convention, but nothing more.
[19] For this reason, I do not consider that a sentencing Judge is constrained by half of the maximum prison sentence when setting the length for a sentence of home
11 Henry v Police, above n 8, at [36].
12 At [37].
13 R v Bisschop, above n 7, at [18].
detention. Nor, in line with my comments above, do I consider that the maximum penalty is a mandatory consideration in setting that length. As such, a sentencing Judge is not required to provide reasons for departing from the halving convention merely because (under that convention) the length of the sentence equates to close to the maximum sentence of imprisonment that could have been imposed.
Mr Riwai’s sentence
[20] Following that approach, I do not see how the appeal can be allowed. Mr Nicholls submits that the length of Mr Riwai’s sentence should be reduced by three weeks, while otherwise taking no issue with the kind of sentence imposed. Acceding to that request would amount to tinkering with the sentence. That is not the role of an appellate court.
[21] In any case, I am not convinced a different sentence should have been imposed. Two months’ home detention was an appropriate sentence for Mr Riwai taking into account all the circumstances and the principles of sentencing:
(1)Mr Nicholls rightly accepted that Mr Riwai’s offending was one of the most serious cases of its kind, involving speeds over twice the legal limit in the presence of other road users. In such circumstances, a sentence close to the maximum penalty must be imposed.14
(2)Mr Riwai has several relevant previous convictions, including four for dangerous driving, one for careless driving, four for driving while disqualified, two for failing to stop and one for driving with excess blood alcohol.15
(3)Although Mr Riwai pleaded guilty, the pre-sentence report records that he did not appear to display any remorse and displayed a sense of entitlement and impulsivity. He also maintains his denial that what he was involved in was a race.
14 Sentencing Act 2002, s 8(d).
15 Section 9(1)(j).
(4)The pre-sentence report assessed Mr Riwai’s risk of offending as medium and his risk of harm to others as high.16
[22]A sentence of two months’ home detention:
(1)holds Mr Riwai accountable;17
(2)denounces his conduct;18
(3)deters him and others from similar offending;19 and
(4)is the least restrictive outcome that is available in the circumstances.20
[23] While I am mindful of the fact that Judge Tompkins did not expressly refer to Mr Riwai’s guilty plea, I am nevertheless satisfied for the reasons I have already given that the end sentence was within the available range. For that reason, it cannot be said that a different sentence should be imposed, and so the appeal must be dismissed.
Result
[24]The appeal is dismissed.
D B Collins J
Solicitors:
Chris Nicholls, Lower Hutt for Appellant
Crown Solicitor, Wellington for Respondent
16 Sentencing Act 2002, s 7(f) and (g).
17 Section 7(1)(a).
18 Section 7(1)(e).
19 Section 7(1)(f).
20 Section 8(g).
5
0