Rowe v Police
[2022] NZHC 3549
•19 December 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-000205
[2022] NZHC 3549
BETWEEN BLAKE ADAM TOROA ROWE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 December 2022 Counsel:
P J Mooney for Appellant R L Hicklin for Respondent
Judgment:
19 December 2022
JUDGMENT OF GRICE J
(Sentence Appeal)
Summary
[1] Mr Blake Rowe was sentenced to three months’ imprisonment and a driving disqualification of one year on charges of driving while disqualified (third or subsequent offence)1 and breaching release conditions2 in the New Plymouth District Court on 30 September 2022.3 The Judge ordered that the sentence of imprisonment be served cumulatively with the sentence Mr Rowe was serving at the time.
[2] Mr Rowe now appeals the sentence, on the sole issue of whether the sentence should have been imposed cumulatively or concurrently.
1 Land Transport Act 1998, ss 32(1)(a) and 32(4) carry a maximum penalty of 24 months’ imprisonment or a fine of $6,000 and a driving disqualification of one year or more.
2 Sentencing Act 2002, s 96(1) carries a maximum penalty of 12 months’ imprisonment or a fine of
$2,000.
3 Department of Corrections v Rowe [2022] NZDC 19158. (District Court decision)
ROWE v NEW ZEALAND POLICE [2022] NZHC 3549 [19 December 2022]
Facts
[3] On 24 January 2022, Mr Rowe was found by the police driving a vehicle while he was subject to a one-year driving disqualification imposed in October 2021. Mr Rowe has twice previously been convicted of driving while disqualified, suspended or revoked. This forms the basis of the driving while disqualified (third or subsequent offence) charge.
[4] Upon his release from prison in December 2021, Mr Rowe was subject to release conditions. These included a condition to report to a probation officer as directed. On 24 December 2021, Mr Rowe failed to report to his probation officer and had not provided the Department of Corrections with an accurate address or phone number. This forms the basis of the breach of release conditions charge. Mr Rowe’s release conditions expired on 1 November 2022.
[5] Mr Rowe is 35 years old and has an extensive criminal history. He is currently serving his term of imprisonment in Manawatū Prison.
[6] On 19 September 2022, 11 days before Mr Rowe’s sentencing on the current charges, he was sentenced to 24 months’ imprisonment on another set of charges. This meant that, under s 75 of the Parole Act 2002, Mr Rowe’s earlier sentence of 24 months’ imprisonment and later sentence of three months’ imprisonment were to be considered a single notional sentence of 27 months’ imprisonment when determining whether the sentence was a long-term or a short term one, Mr Rowe’s parole eligibility date and the statutory release date.
[7] The release date for a short-term sentence is the date when the offender has served half of their sentence. The release date for a long-term sentence is the sentence expiry date.
[8] Section 4 of the Parole Act provides that a notional single sentence of more than 24 months’ imprisonment is a “long-term sentence”.
District Court’s Decision
[9] The Court noted that Mr Rowe was, at the time of sentencing, serving a term of two years’ imprisonment. Accordingly, the Judge considered that he had no option but to impose a cumulative term of imprisonment for the current charges because the offending was completely separate to the prior offending, for which Mr Rowe was already serving a sentence.
[10] Nevertheless, the Judge recognised that Mr Rowe’s brain injury had made it very difficult for him to follow directions, such as those given by probation officers. This had led Mr Rowe to accumulate a number of convictions relating to breach of release conditions. The Judge observed that such circumstances may have allowed for a more “creative” sentence, had Mr Rowe not already been serving a sentence of imprisonment.
[11] The Judge also observed that throughout Mr Rowe’s lengthy period of interaction with the justice system, he had not received counselling or other forms of treatment for his substance abuse, worsening the effects of his brain injury, despite his expressing a motivation to engage with support.
[12] His Honour imposed on Mr Rowe a final sentence of imprisonment of three months: one month for the driving while disqualified charge and three months for the breach of release conditions charge reduced by 25 per cent for pleading guilty. In addition, a one-year driving disqualification was imposed.
Grounds of Appeal
[13]Mr Rowe appeals on the grounds that the sentence was manifestly excessive.
Relevant Law
[14] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that,
for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.4
[15] Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to sentence appeals.5
Analysis
[16] The sole issue in this appeal is whether the sentence should have been imposed cumulatively or concurrently. Although the sentence imposed is relatively short— three months’ imprisonment—the effect of the cumulative/concurrent distinction is significant for Mr Rowe as it will determine whether he is subject to a long-term sentence of imprisonment of 27 months or a short-term sentence of imprisonment of 24 months. This, in turn, affects eligibility for parole (in the case of a long-term sentence) and for release, that is, whether Mr Rowe becomes eligible for release at the expiry of the 27-month sentence, or at the halfway point of the 24-month sentence. In the case of a long-term sentence, the offender must appear before the Parole Board and it will impose conditions on the offender, if released.
[17] The appellant says that the operation of the Parole Act in the manner described above makes Mr Rowe’s sentence manifestly excessive. Mr Mooney submits that the Judge was in error by failing to consider the consequences of imposing a cumulative sentence on the overall sentence Mr Rowe would serve. And those consequences are serious: the cumulative sentence of three months’ imprisonment effectively delays Mr Rowe’s release by 15 months. The appellant concedes that the two sets of offending were separate in nature and time. However, Mr Mooney submits, considering the principle of totality, the current charges warrant a concurrent sentence. Although, due to time served, Mr Rowe became eligible for parole on 15 November 2022, he will not be entitled to release until granted release by the Parole Board or at the expiry of his sentence. Whereas, in the case of a short-term sentence, he would be entitled to release at the halfway point.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 At [35].
[18] Ms Hicklin, counsel for the respondent, says that such operation of the Parole Act in Mr Rowe’s case is a mere by-product of an appropriate sentence being imposed for the current charges and that imposing a concurrent sentence would result in Mr Rowe effectively receiving no punishment for the offending. Mr Mooney said the conviction alone, particularly for the breaches, would operate as a penalty in the particular circumstances of this case.
[19] Section 84 of the Sentencing Act 2002 provides “guidance” on the use of cumulative and concurrent sentences. The provision describes where each type of sentence may be “generally appropriate”. In contrast, s 85, on the use of the totality principle, contains much stronger, mandatory language. I set out the relevant parts below with emphasis my own:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
…
[20] In this case, the sentence imposed, which converted the short-term sentence to a long-term sentence was imposed only 11 days after the original sentence. It is plain the offending was separate. However, I agree with the appellant that the effect of imposing a cumulative sentence for the current charges on Mr Rowe’s total sentence was not adequately addressed in the District Court. There is a significant difference between becoming eligible for parole and becoming entitled to release. The latter guarantees release from prison whereas the former only allows for the possibility of release with the imposition of potential release conditions, as seen fit by the Parole Board. This means that the cumulative sentence imposed on the appellant, in effect, amounted to an extension of his release date by 15 months.
[21] An extension of Mr Rowe’s term of imprisonment by 15 months for two relatively minor charges, with maximum penalties of 24 months’ and 12 months’
imprisonment for each, and in circumstances where three months’ imprisonment was considered to be the appropriate sentence, is wholly out of proportion to the gravity of the offending and does not reflect the principle of totality.
[22] While the Judge, in sentencing Mr Rowe cumulatively, alluded to the fact that Mr Rowe would now have to appear before the Parole Board, the judgment did not address the significance of the effect a cumulative sentence would have on Mr Rowe’s overall sentence. This was an error.
[23] No issue was otherwise taken with the length of the determinate sentence and the term is appropriate in the circumstances.
[24] Accordingly, I consider, a concurrent sentence is the appropriate sentencing choice for the offending.
Conclusion
[25]The appeal is allowed.
[26] Mr Rowe is sentenced to three months’ imprisonment on the charges of driving while disqualified and breach of release conditions, to be served concurrently with his existing sentence. As well, Mr Rowe is disqualified from holding or obtaining a driver’s licence for a period of one year beginning 5 April 2023.
Grice J
Solicitors:
Mooney & Webb, New Plymouth C & M Legal, New Plymouth
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