Riwai v Police - [2018] NZHC 2283

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2283
Decision Date: 31 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Riwai appealed his sentence imposed by Judge Tompkins in the District Court at Hutt Valley. Mr. Riwai was sentenced to two months' home detention for participating in a street race. The appeal hinged on whether the length of the home detention sentence was equivalent to four months' imprisonment, which exceeded the maximum penalty. The court needed to determine if the sentence was within the available range, and if not, whether a different sentence should be imposed.

The court first considered the practice of halving a notional sentence of imprisonment to determine the appropriate length for a sentence of home detention, known as the halving convention. The court rejected Mr. Riwai's argument that the halving convention should be strictly followed, and held that the maximum penalty is not a mandatory consideration in setting the length of a home detention sentence. The court also held that the sentencing judge was not required to provide reasons for departing from the halving convention if the length of the sentence equated to close to the maximum sentence of imprisonment that could have been imposed.

The court found that a sentence of two months' home detention was appropriate for Mr. Riwai, taking into account all the circumstances and the principles of sentencing. The court was satisfied that the end sentence was within the available range, and for that reason, the appeal was dismissed.

The final order was that the appeal was dismissed.

Orders