Takimoana v The Queen
[2021] NZHC 1028
•10 May 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2021-488-12
[2021] NZHC 1028
BETWEEN PHILLIP LANCE TAKIMOANA
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 May 2021 Appearances:
D Blaikie for Appellant
R Annadale for Respondent
Judgment:
10 May 2021
JUDGMENT OF DUFFY J
This judgment was delivered by me on 10 May 2021 at 2.30pm.
Registrar/ Deputy Registrar
Solicitors/Counsel:
D Blaikie, Barrister, Kaikohe Crown Solicitor, Whangarei
TAKIMOANA v POLICE [2021] NZHC 1028 [10 May 2021]
[1] The appellant, Phillip Takimoana, pleaded guilty in the District Court to three driving charges: dangerous driving causing death,1 failing to stop and ascertain injury and render assistance after an accident where a person has been killed2 and driving while disqualified.3 On 15 February 2021, Judge Shortland sentenced Mr Takimoana to two years, two months’ imprisonment.4 He now appeals against this sentence on the basis the sentencing Judge erred in imposing the sentence and a different sentence should be imposed.5
Facts
[2] The victim of the offending, Ms Ruffiner, and Mr Takimoana had been in a relationship for six years. The events which led to Ms Ruffiner’s death happened on 6 November 2019. That evening she collected Mr Takimoana from the AFFCO works at Moerewa, where he had finished a 10 hour shift, and drove to the Ōhaeawai Hotel, where they lived. At the time Mr Takimoana was disqualified from driving. On 31 October 2019, just under a week earlier, he was convicted of driving with excess breath alcohol.
[3] Shortly after their arrival at the hotel the couple began arguing. Ms Ruffiner wanted to socialise with Mr Takimoana in the hotel bar; he was tired after a long shift at work and wanted a quiet night. She had already been drinking alcohol; he had not. The argument reached a point where Mr Takimoana felt he had to leave. He took the car keys, left the hotel and went to the car, which was parked in the rear carpark. Once in the car he started the engine. Ms Ruffiner, who was on her way out of the hotel, heard the car start and responded by going to the car and climbing on its bonnet to prevent Mr Takimoana from driving off. She moved up on to the roof of the car. Despite her actions Mr Takimoana drove off while she was on the roof of the car. He first turned out of the carpark onto State Highway 1 and then immediately turned right into State Highway 12. Ms Ruffiner remained on top of the vehicle.
1 Land Transport Act 1998, s 36AA(1)(b). Maximum penalty: ten years’ imprisonment or fine of
$20,000.
2 Land Transport Act 1998, s 36(1)(c). Maximum penalty: five years’ imprisonment or fine of
$20,000.
3 Land Transport Act 1998, s 32(1)(a). Maximum penalty (first or second offence): three months’ imprisonment or fine of $4,500.
4 R v Takimoana [2021] NZDC 2786.
5 Criminal Procedure Act 2011, s 250(2).
[4] What happened next was the subject of a disputed facts hearing before Judge Shortland in the District Court at Kaikohe.6 The Judge accepted Mr Takimoana was unsure about whether Ms Ruffiner was still on the roof of the car but found he should have stopped to check. The Judge ruled the car did not leave the carpark at speed, even if the tyres skidded on loose gravel, and Mr Takimoana did not deliberately swerve to dislodge Ms Ruffiner from the roof of the car. The Judge determined Mr Takimoana’s driving was reckless rather than dangerous and that as the car turned Ms Ruffiner fell from the vehicle onto the road. Mr Takimoana drove away. This was not the first occasion that Ms Ruffiner had jumped on a vehicle driven by Mr Takimoana; however, on the earlier occasions she had jumped off the vehicle without injury.
[5] The Judge accepted that at the material times Mr Takimoana did not realise Ms Ruffiner was still on the roof of the car or that she had fallen from the car and sustained fatal head injuries. However, the Judge also found that at the time Mr Takimoana drove off he was determined to leave and her attempting to stop him would have only added to his irritation with her. Thus, he never stopped the vehicle to check if she was still on it or not. The Judge summarised the offending in this way:
The point really is that Mr Takimoana just wanted to get away, he was not sure whether [Ms Ruffiner] was on the roof, and if she was, if she fell off, she would be okay, and unfortunately it was not the situation.
[6]Later the Judge found:
There was an honest belief that you thought she was not on the roof, but all the facts suggest at the time that she was on the roof, and if anything, you failed to check whether she was there or not.
Personal circumstances
[7] Mr Takimoana is 42 years old. He is Ngapuhi, Ngati Kura. He affiliates, through his mother, to the Marae in Matauri Bay, and, through his father, to Waitangi. He was born and raised in Whangarei. He is close to both his parents and has recently been living with them. Mr Takimoana has a son with a former partner, who is now
6 R v Takimoana [2020] NZDC 24966.
deceased. Whanau is important to him and Mr Takimoana told the pre-sentence report writer that his mother and his son have been important supports for him.
[8] Mr Takimoana was formerly associated with a well-known criminal group but that apparently ceased when he met Ms Ruffiner. Nevertheless, the relationship was not easy and there were multiple family violence incidents involving them both between 2015 and 2019. On six occasions, Ms Ruffiner was the aggressor against Mr Takimoana and on five occasions he was the aggressor against her. He was convicted of two charges of common assault and another of wilful damage in 2015. Ms Ruffiner was the victim of that offending.
[9] The pre-sentence report writer records that Mr Takimoana was emotional at the interview. He feels not only remorse for his offending but grieves the loss of his partner, Ms Ruffiner. His relationship with her was one he valued deeply even if it was difficult at times. He would like to participate in restorative justice with Ms Ruffiner’s family, and to apologise to them, but acknowledges that they do not wish to have any contact with him.
[10] As noted, Mr Takimoana has violence convictions in relation to Ms Ruffiner. Since 2010, he also has two driving related convictions. The most recent conviction before 2010 was for dishonesty offending in 2003. This, and older convictions, can properly be regarded as historical.
[11] The pre-sentence report writer identified that Mr Takimoana may benefit from a specialist Māori cultural assessment. Mr Takimoana was reported as being interested in involvement in programmes which acknowledge his culture. Mr Takimoana described his childhood home as not violent but said there was much violence with friends. He reported that his mother and father, when younger, “went heavy into drink and drugs”. Mr Takimoana reported that he had a lifetime of alcohol problems in large part due to his drinking with the friends he grew up with. He said he used to drink about a box of 15 small bottles of beer at a sitting and has attended Alcoholics Anonymous in the past. He says he has not had any alcoholic drinks since the death of Ms Ruffiner. Based on his self-reported assessment the pre-sentence report assessed that Mr Takimoana now has a low risk of developing problems related to alcohol use.
In terms of his health he suffers from gout – which is controlled with medication and is on the edge of diabetes. Otherwise, he describes his health as “pretty good”. Since the death of Ms Ruffiner, he has thought about suicide but has made no attempts largely because of concerns for his whanau.
District Court sentencing
[12] The Judge adopted a starting point of four years’ imprisonment. This took account of the recklessness of Mr Takimoana’s actions in pulling out onto the road while Ms Ruffiner was on the roof. This starting point also incorporated other aggravating features, which the Judge identified as loss of traction, failing to stop and check, driving while disqualified and causing death.
[13] The Judge acknowledged Mr Takimoana’s genuine remorse and restrictive bail conditions for most of 2020. Discounts of six months for remorse and four months for restrictive bail conditions were allowed. Further, Mr Takimoana had pleaded guilty at what the Judge considered the earliest point possible and a further 25 per cent discount was applied.
[14] This led to a final sentence of two years, two months’ imprisonment, which the Judge considered appropriate after taking account of totality. Mr Takimoana was also disqualified from driving for two years, six months.
Grounds of appeal
[15]Mr Blaikie, on Mr Takimoana’s behalf, advances two grounds of appeal.
[16] First, he submits the starting point of four years’ imprisonment adopted by the Judge was too high. Mr Blaikie says the starting point should have been no more than three years. It was an error of judgment that arose in the context of a continuing domestic dispute.
[17] Mr Blaikie rejects the respondent’s contention that the presence of several aggravating factors in terms of Gacitua v R,7 warranted a higher starting point.
7 Gacitua v R [2013] NZCA 234.
Mr Blaikie submits the key aggravating features are that Mr Takimoana did not stop to check if Ms Ruffiner was still on the roof of the vehicle before he drove off and he drove despite being disqualified from driving.
[18] Second, Mr Blaikie seeks higher discounts for Mr Takimoana’s personal circumstances. Mr Blaikie, comparing this case to R v Grace,8 submits a discount for remorse should have been nearer to 20 per cent. And, the restrictive bail conditions for 16 months should have led to an adjustment of five or six months. Lastly, Mr Takimoana’s efforts at rehabilitation, particularly his total abstinence from alcohol since Ms Ruffiner’s death, should have been recognised in a discrete discount.
[19] Mr Blaikie submits a sentence of home detention would have been appropriate if the final adjusted sentence was two years’ imprisonment or less.
Respondent submissions
[20] The respondent submits the starting point of four years’ imprisonment was within the available range. Like Mr Blaikie, the respondent relies on the factors in Gacitua to assess Mr Takimoana’s culpability. Based on the sentencing ranges given in Gacitua, the respondent submits that the starting point was at the bottom of that range, and therefore it was appropriate given the Judge found the defendant did not know if Ms Ruffiner was still on the roof but was reckless in failing to check. The respondent further submits that the adjustments for personal mitigating factors were appropriate given Mr Takimoana’s circumstances.
[21] At the appeal hearing the respondent responsibly accepted that following the findings at the disputed facts hearing, the key factor here was that Mr Takimoana drove recklessly through his failure to stop and ascertain if Ms Ruffiner was still on the roof of the car.
8 R v Grace [2020] NZHC 3145.
Approach on appeal
[22] An error warranting interference by this Court on appeal will arise either because the sentence was manifestly excessive or wrong in principle.9 In Tutakangahau v Police the Court of Appeal stated that the concept of “manifestly excessive” is a means of examining the significance of the error in a sentence, to decide whether a different sentence should be imposed.10 The court’s focus should be on the final sentence imposed rather than its component parts or how the sentence was eventually reached.11
Discussion
Starting point
[23] In Richards v R, the Court of Appeal noted there is no guideline judgment for sentencing on the offence of dangerous driving causing death.12 The Court of Appeal further recognised, in Gaticua v R, that sentencing in such cases is highly fact dependent:13
Sentencing in cases in which death has been caused by dangerous or reckless driving or driving when under the influence of alcohol or drugs is highly fact- specific. This Court has said on numerous occasions that so much depends on the particular circumstances of the offending.
[24] However, in the same judgment, the Court of Appeal found some assistance in the judgment of the Court of Appeal of England and Wales in R v Cooksley,14 which identified 16 aggravating factors and six mitigating factors relevant to sentencing.
[25] Because the respondent relies on these aggravating factors I propose to consider them in some detail. The 16 aggravating factors were divided into four categories and grouped as follows. (a) nine factors were grouped under the category headed “highly culpable standard of driving at time of offence”; (b) two factors were grouped under the category “driving habitually below acceptable standard”; (c) two
9 R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Ripia v R [2011] NZCA 101 at [15].
12 Richards v R [2013] NZCA 234 at [15].
13 Gaticua v R, above n 22 at [22].
14 R v Cooksley [2003] EWCA Crim 996, [2003] 3 All ER 40 at [15].
factors were grouped under the category “outcome of offence”; and (d) three factors were grouped under the category “irresponsible behaviour at time of offence”. 15 Starting points for sentencing were related to the identified categories.16 In cases in which no aggravating features were present starting points of between 12-18 months were suggested. Where the offence involved “a momentary dangerous error of judgment” or “a short period of bad driving” with the addition of aggravating factors that came within the second to fourth categories starting points of 2-3 years were suggested. When the standard of driving was more dangerous, which was typically associated with one or two factors in the first category, starting points of 4-5 years were suggested. Cases with three or more factors in the first category were regarded as involving an extremely high level of culpability that warranted a starting point of six years’ imprisonment.
[26] In their written submissions for the appeal the respondent relied on the aggravating features identified in Cooksley and submitted six are present here: (a) driving while disqualified; (b) failing to stop to ascertain injury; (c) offence committed while subject to a sentence for driving with excess breath alcohol; (d) previous convictions for motoring offences; (e) driving with knowledge victim was on the roof following a heated domestic dispute; (f) driving at a speed (with the victim on the roof of the car) that was clearly unsafe. These factors are said to fall under the Cooksley categories of “driving habitually below an acceptable standard” and “irresponsible behaviour at the time of the offence”. Having regard to the number and combination of aggravating factors and the guidance in Gaticua, the respondent submits that a starting point in the range of 4-5 years’ imprisonment would be appropriate.
[27] However, in Gaticua the Court of Appeal did not “necessarily endorse the suggestive sentencing bands in Cooksley”, which is something the respondent acknowledges.17 Nevertheless, the respondent relies on Scott v R18 where Clifford J opined that sentences applying the Cooksley factors, including in Gaticua itself, have resulted in starting points broadly in line with those indicated in Cooksley. This leads the respondent to submit that the four year starting point the Judge adopted here was
15 Gaticua v R at [25].
16 Gaticua v R at [27].
17 Gaticua v R at [29].
18 Scott v R [2014] NZHC 1598.
at the bottom of the postulated range and therefore appropriate. I reject that submission.
[28] I consider the respondent has applied the Cooksley criteria in a mechanistic and inappropriately technical way. In Gaticua v R the Court of Appeal counsels against such an approach in sentencing when it states that a sentencing judge should take account of the specific facts of the case, the culpability of the defendant and his or her personal circumstances before arriving at a sentence, even where guideline judgments are available.19 Further, in Gaticua, the Court of Appeal stated:20
For the present, however, the Cooksley guidelines are useful in identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind. Of course, the weight to be attached to these factors will be a matter to be determined in individual cases. We would not necessarily endorse the suggested sentencing bands in Cooksley.
[29] In my view, only one of the aggravating features in Cooksley fits comfortably with the facts of this case. That is, Mr Takimoana was disqualified from driving and therefore he should not have been driving on the day of the offending.
[30] As to the separate charge of failing to stop to ascertain injury, this factor is neutralised by the Judge’s finding that Mr Takimoana drove off with no knowledge that Ms Ruffiner was still on the roof of the car. This means he could not have later known that she had fallen off and injured herself. The most that can be said here is that he should have stopped to check whether she was still on the roof or not. At the appeal hearing the respondent accepted that the separate charge of failing to stop to ascertain injury was based on the disputed summary of facts that had alleged Mr Takimoana intentionally drove off knowing Ms Ruffiner was on the car roof and had then failed to stop when she fell off and injured herself. Once the Judge found against those facts the conduct supporting this charge had to be viewed in light of the Judge’s findings, which is the same as the reckless conduct that underlies the dangerous driving causing death charge. Accordingly, I regard the failing to stop to be a neutral factor as the poor conduct it signifies is already covered by the more serious offending.
19 At [22].
20 At [29].
[31] Regarding the other aggravating factors that the respondent relies on, I acknowledge that at the time of the offending Mr Takimoana was serving a sentence of nine months’ supervision for the earlier excess breath alcohol offence, which was in addition to his disqualification. However, I consider it double counting to take separate notice of the driving disqualification and the other sentence he received when they all stem from the one offence.
[32] I acknowledge that Mr Takimoana also has prior convictions for driving under the influence of alcohol. However, little weight can be attached to this factor as there is no suggestion that he consumed excessive alcohol before driving the car on this occasion. Also, apart from the excess breath alcohol offence that led to his disqualification, the other drink driving offences were in 2011 and 1997. Given their age I consider those offences are neutral factors here.
[33] The respondent was wrong in written submissions to submit Mr Takimoana drove with knowledge that Ms Ruffiner was on the roof of the car. This is contrary to what the Judge found in the disputed facts hearing. Similarly, the submission Mr Takimoana drove at an unsafe speed in circumstances where Ms Ruffiner was on the roof of the car overlooks the fact the Judge found Mr Takimoana did not know she was there. At the appeal hearing the respondent responsibly resiled from this submission.
[34] Mr Takimoana’s actions do not reflect other aggravating factors recognised in Cooksley. He had not consumed drugs or alcohol. He was not driving his car with excessive speed. He did not disregard warnings from fellow passengers (or nearby bystanders). He did not engage in a persistent course of very bad driving, nor was he driving aggressively. There is nothing to suggest his attention was avoidably distracted by the use, for example, of his mobile phone. He did not drive knowing he was suffering from a medical condition which impaired his driving skills nor knowing that he was deprived of sleep. His car was not poorly maintained or dangerously loaded. Mr Takimoana was not subject to bail at the time he offended.
[35] As to mitigating factors, a timely guilty plea and remorse were considered relevant in Cooksley but I will address these elsewhere in this appeal.
[36] The key feature of Mr Takimoana’s offending, which was recognised by the Judge, was that he recklessly drove away without checking whether Ms Ruffiner was still on the roof of his car. Further, he was not entitled to drive his car anywhere. Had he complied with the driving disqualification, Ms Ruffiner would still be alive. The extent of Mr Takimoana’s recklessness, however, was limited to the decision to drive away. He was not under the influence of alcohol at the time and he did not drive away at speed. Nor did he attempt to dislodge Ms Ruffiner from the roof by driving his car in an erratic manner.
[37] In Gaticua v R, the Court of Appeal acknowledged the increase in the maximum penalty for dangerous or reckless driving which followed from law reforms in 2011.21 Parliament increased the maximum penalty nearly ten years ago from five years’ imprisonment to ten years’ imprisonment. Heavier penalties were to follow for those who cause death while under the influence of alcohol or drugs, or who drive dangerously or recklessly, to discourage those who would drive in a dangerous or grossly irresponsible manner.22 In my view, Mr Takimoana’s actions do not reflect the type of excessive risk-taking Parliament was primarily concerned with when it substantially increased the penalty for dangerous and reckless driving.
[38] In support of his submission that the starting point should have been three years or less, Mr Blaikie compares Mr Takimoana’s offending to that of the defendant in R v Tawa, where the sentencing Judge adopted a starting point of four years’ imprisonment.23 However, as Mr Blaikie acknowledges, that was a case involving vehicle manslaughter. I agree that the offending in that case was more serious, but drawing comparisons between reckless driving and manslaughter is a difficult task in which there is a high risk of perverse sentencing outcomes. Accordingly, I will set Tawa aside.
[39] A much more useful comparison to this case is R v Lyon.24 It is almost on point as far as offending goes. The defendant in that case pleaded guilty to reckless driving causing death, reckless driving causing injury and driving while disqualified.
21 At [10].
22 At [30].
23 R v Tawa [2019] NZHC 95.
24 R v Lyon [2018] NZHC 1434.
Thomas J adopted a starting point of four years’ imprisonment. In that case, the defendant was driving his car at high speed in a residential street in Paekākāriki. The road had recently been resealed and there was loose metal on the surface. Temporary speed restrictions had been lifted, in breach of a traffic management plan, but the defendant had driven along the road earlier that morning and was aware of the loose metal.
[40] The Judge found the defendant had deliberately allowed his car to lose traction. However, he was unable to regain control and the car mounted the curb and collided with a pedestrian on the footpath before coming to stop against a tree. The pedestrian died from the injuries she sustained in the collision. A passenger in the car received a minor head injury. There was no suggestion that the defendant had been consuming alcohol or was under the influence of drugs.
[41] As I have noted, Thomas J took a four year starting point for this offending. I consider Mr Takimoana’s offending is less serious than the offending in that case and, in consequence, I conclude that the four year starting point settled on by the Judge in sentencing him was too high.
[42] This preliminary conclusion is further confirmed by Gaticua v R. In that case, the defendant was convicted of reckless driving causing death and reckless driving causing injury. He was driving his car in convoy with another car late at night. There was a passenger in the car with him. They were travelling at speed and in excess of the posted speed limit on a narrow winding semi-rural road. As he drove along the road, the defendant passed cars by crossing the median strip. As he approached an intersection, at which he intended to turn right, there were two cars ahead of the defendant. He passed one and came in behind the other, braking hard to avoid a collision.
[43] Without waiting for the car in front to turn, the defendant attempted to pass it and turn right. Approaching the intersection from the opposite direction was another car. It was not seen by the defendant and the driver of that car was unable to react in time. The two cars collided; the passenger in the defendant’s car sustained serious injuries and died at the scene. A passenger in the other car suffered injuries too.
[44] In that case, the sentencing Judge identified a prolonged period of dangerous driving for an extended period. Speed was a factor but a lesser one. More important was the repeated passing, at least once by crossing yellow no passing lines. The Judge did not accept the collision was the result of an isolated lapse of judgment. The defendant engaged in consistently poor and dangerous driving at night. Although not in excess of the legal limit, the defendant’s consumption of alcohol that evening was also an aggravating feature.25 The Judge also took account of the separate charge of reckless driving causing injury to the passenger in the other car and settled on a starting point of five years’ imprisonment.
[45] The Court of Appeal concluded this starting point to be within the available range of four to five years.26 Three aggravating factors identified in Cooksley applied. They were excessive speed and competitive driving (but not racing), a persistent course of very bad driving and aggressive driving. The Court of Appeal characterised the first aggravating factor as the “sort of driving behaviour [which] promotes just the sort of risk-taking that caused the accident”.27
[46] My assessment is that Mr Takimoana’s actions were much less serious than those of the defendant in Gaticua and less serious than those of the defendant in Lyon. Mr Takimoana did not drive at speed, he did not drive erratically, he did not take inappropriate risks. He should have checked to make sure Ms Ruffiner was no longer on the roof of his car before driving away and did not. But his culpability is less than that of the defendant in Lyon, who was also charged with a second driving offence, or Gaticua, who was also charged with another serious driving offence. Accordingly, I consider the correct starting point should be something less than four years’ imprisonment. In light of the circumstances I consider three years, six months’ imprisonment is the appropriate starting point.
25 R v Gaticua, above n 22, at [11].
26 R v Gaticua, above n 22 at [44].
27 R v Gaticua, above n 22 at [42].
[47] To the starting point I would add an uplift of one month to reflect the separate offending of driving while disqualified,28 which brings the starting point to three years and seven months’ imprisonment.
Personal mitigating factors
[48] The Judge allowed discounts of approximately eight per cent for time spent on restrictive EM bail conditions and 12.5 per cent for remorse. I am satisfied the adjustments for personal mitigating factors were appropriate and will adopt them as a proportion of the starting point.
[49] Mr Blaikie submits Mr Takimoana is entitled to a discount of 20 per cent for remorse, and relies on R v Grace to support of submission.29 However, adjustments for personal mitigating factors are fact specific to each sentence. In Grace, the defendant’s driving while under the influence of alcohol had led to the death of her pre-school child. There were other personal features of the defendant which informed the Judge’s determination. I accept Mr Takimoana’s remorse and his continuing grief and ongoing pain, not just at the loss of his partner but also for his role in causing her death. However, I am satisfied that the discount the Judge settled on is the right one in this case.
[50] Nor do I consider that a discrete adjustment for rehabilitation is available for Mr Takimoana. He self-reports total abstinence from alcohol since the accident. However, evidence of participation in alcohol harm reduction programmes would be necessary to justify a discrete discount on this basis. Further, alcohol consumption was not a feature of this offending. Nevertheless, Mr Takimoana’s present decision to abstain from alcohol is an encouraging sign, and I commend his efforts.
[51] Mr Takimoana pleaded guilty at the earliest possible opportunity which, as the Judge correctly recognised, warranted a 25 per cent discount.
28 The maximum penalty for driving while disqualified is three months’ imprisonment: Land Transport Act 1998, ss 32(1)(a) and 32(3).
29 R v Grace [2020] NZHC 3145 at [20].
[52] The result is a total discount of 45.5 per cent. The result is an end sentence of approximately one year and 11 months’ imprisonment. This shows the sentence imposed to be manifestly excessive. The three-month reduction in sentence carries more than temporal consequences because a sentence of two years’ imprisonment or less is defined in the Parole Act 2002 as a short sentence of imprisonment, which would qualify Mr Takimoana for automatic release once half the term is served and makes him eligible for consideration for a sentence of home detention. This finding would be enough for me to quash the present sentence and consider whether to re- sentence Mr Takimoana or as the respondent suggested to refer the matter back to the District Court for re-sentencing. However, before embarking on those considerations I find it necessary to consider whether the Judge made a further error by failing to consider whether Mr Takimoana would qualify for an additional discount that recognised the deleterious effects of Māori systemic deprivation.
[53] The account given in the pre-sentence report of personal circumstances raises concerns which in my view would engage s 27(1) and (5) of the Sentencing Act 2002. The pre-sentence report writer had identified that Mr Takimoana may benefit from a specialist Māori cultural assessment. This could have been done in the context of a request pursuant to s 27(1) or the Judge could have suggested such a report be obtained, as is provided for in s 27(5). Even though I do not have the benefit of a s 27 report, s 9(4) permits a Court considering sentencing to take account of other aggravating or mitigating factors that it thinks fit, which would include whether Māori systemic deprivation played a part in this offending. I consider there is enough in the pre-sentence report to inform me of circumstances that point to systemic Māori deprivation having played a part in Mr Takimoana’s offending.
[54] In Zhang v R,30 the Court of Appeal referred to poverty and deprivation, potentially but not necessarily resulting from loss of land, language, culture, rangatiratanga, mana and dignity, as matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where such vulnerabilities were established, and whether associated with addiction or not, these factors would require consideration in sentencing.
30 Zhang v R [2019] 3 NZLR 648 at [10].
[55] In Borell v New Zealand Police,31 this Court recognised that systemic deprivation that affects Māori generally was traceable to linkages between the deprivation experienced by Mr Borell and his offending, thus satisfying the requirements outlined in Solicitor General v Heta and Arona v R.32
[56] In Solicitor-General v Heta, Whata J referred to discounts for deprivation per se and noted that they had initially been relatively modest in the range of 0 - 6 per cent, but more generally were now in the range of 12 - 30 per cent for deprivation and trauma. Deprivation was said to be difficult to separate from other factors such as trauma, youth, drug and alcohol abuse and mental health issues because these were associated with and explained by deprivation.
[57] Whilst the pre-sentence report does not overtly draw linkages between Māori systemic deprivation, Mr Takimoana and his offending, the underlying presence of such deprivation can be reasonably inferred from the information provided in the pre- sentence report. Mr Takimoana’s family background included early exposure to his parents’ alcohol and drug abuse as well as a mix of violence by others associated with him. His family background together with his criminal history reflect the classic outcomes of Māori systemic deprivation: (a) a childhood marred by parents who abuse alcohol and drugs; (b) exposure to violence when young; (c) criminal offending beginning at an early age; (d) Mr Takimoana’s own history of alcohol abuse; (e) gang affiliation; and (f) domestic violence, which in this case was meted out by each partner to the other. As was recognised in Zhang, such outcomes impair choice and diminish moral culpability. On the night of the offending their various impacts coalesced, which led Mr Takimoana to overreact and fail to manage the anger and irritation he was feeling towards Ms Ruffiner. But for those factors he may have responded differently by simply walking away or going back to the hotel room they occupied and refusing to be drawn away from it.
[58] Whilst I do not have the full account that would have been available in a s 27 report, I am satisfied from the information available to me that some albeit modest recognition is required for Māori systemic deprivation. I propose to adopt a discount
31 Borell v The New Zealand Police [2019] NZHC 1483.
32 Arona v R [2018] NZCA 427 at [59].
of 5 percent which is within the range of modest discounts identified in Solicitor- General v Heta.
[59] The additional discount I have arrived at brings the total discount for personal circumstances to 50.5 per cent. In accordance with the approach approved in Moses v R, I have added all personal discounts together and will subtract these from the starting point. From a starting point of three years and seven months’ imprisonment, discounts of 50.5 per cent bring the end sentence down to one year and nine months’ imprisonment. This confirms that the sentence imposed was manifestly excessive.
[60] Accordingly, the appeal should be allowed. Whilst the respondent argued that re-sentencing could take place in the District Court I consider it appropriate for me to re-sentence Mr Takimoana. He has already served two months of the sentence of imprisonment he received. This is a case where I consider the re-sentencing should be done promptly.
Home detention
[61] The Judge never addressed the question of home detention because the sentence he imposed excluded this possibility. However, an end sentence of imprisonment of one year, nine months’ imprisonment permits the substitution of the sentence of imprisonment with one of home detention.33
[62] I am satisfied that this is a case where a long sentence of home imprisonment will properly satisfy the sentencing principles of deterrence and denunciation, as well as holding Mr Takimoana accountable for his offending.34 It will both recognise the seriousness of the offending and the extent of Mr Takimoana’s culpability. As I have endeavoured to explain above, this is not a case of excessive risk-taking or dangerous driving. It was an error of judgment with disastrous consequences for Ms Ruffiner. It is a case where denunciation and deterrence need to be balanced with compassion and
33 Sentencing Act 2002, s 15A.
34 R v Iosefa [2008] NZCA 453 at [41].
a focus on Mr Takimoana’s rehabilitation.35 It is the least restrictive sentence available in the circumstances.36
[63] The pre-sentence report records that the proposed home detention address is for Mr Takimoana to live with his parents Robin and Millie Takimoana at 3/70 Tapui Road, Matauri Bay. This address is suitable for electronic monitoring. His parents have consented to him serving home detention at the address. The pre-sentence report writer considered Mr Takimoana might struggle with sentence compliance given he is a disqualified driver and the home address is at a remote location. Neither his mother nor his father have drivers licences. They rely on others for transport. The pre- sentence notes “the departmental programmes will provide transport assistance where possible.” Despite these concerns, I consider the factors for imposing a sentence of home detention to be overwhelming here. To date, it seems Mr Takimoana’s parents manage with living at a remote location without the aid of a driver’s licence. I consider he can do so as well. Obviously any “departmental assistance” that can be given to this family should be.
[64] Accordingly, the sentence of imprisonment is quashed and a sentence of home detention will be substituted in its place. Ordinarily, I would have considered a sentence of between 11 and 12 months’ home detention. This is more than half of the prison sentence I had reached. However, the fact a life was lost in the offending seems to me to warrant a length of sentence that is close to the upper end of the range available for home detention. This is preferable to working from the principle that the sentence should be half the length of the prison sentence because Mr Takimoana would only serve half of any short term sentence of imprisonment that might be imposed on him.37 However, here Mr Takimoana has already served two months of the sentence
35 R v Hill [2008] 2 NZLR 381 at [36] where the Court of Appeal recognised that the starting point and factors that lead to the end sentence are also relevant to the decision to impose home detention. In particular, significant discounts for personal circumstances that produce a qualifying sentence of imprisonment are also relevant to the question of whether home detention should be imposed.
36 Sentencing Act 2002, s 8(g).
37 Twelve months is the maximum permissible length of a sentence of home detention. Adams on Criminal Law Sentencing at SA 80A.06 states that there is a rule of thumb that the sentence of home detention, which is served in full, will normally be one half of the prison sentence that would otherwise have been appropriate. However, this is not automatic and occasionally longer terms of home detention may be imposed: see Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [59]; and see Metua v R [2018] NZHC 246.
of imprisonment. When allowance is made for this I consider a sentence of 9 months’ home detention is appropriate.
Result
[65]The appeal against sentence is allowed.
[66] The sentence of two years, two months’ imprisonment is quashed, and a sentence of 9 months’ home detention is imposed with the following conditions:
(a)On release from prison, travel directly to the Kaikohe Community Corrections office and await further instructions.
(b)To reside within the monitoring boundaries of 70a Te Tapui Road, Matauri Bay and not to move address without the prior written approval of a Probation Officer for the duration of the sentence.
(c)Not to purchase, possess or consume alcohol and/or illicit drugs, nor possess equipment used for the consumption of illicit drugs for the duration of the home detention.
(d)To report to a Probation Officer as directed.
(e)To attend and complete such counselling/programme/treatment to address identified offending behaviour as may be directed by the Probation Officer and to the satisfaction of the Probation Officer and programme provider.
[67] The order disqualifying Mr Takimoana from driving for a period of two years, six months stands.
Duffy J
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