Taukamo v Police HC Wellington CRI-2011-485-18

[2011] NZHC 333

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-18

DALE TAUKAMO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 April 2011

Counsel:         E A Hall for Appellant

K S Grau for Respondent

Judgment:      21 April 2011 at 3:00 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 3pm on the 21st day of April 2011.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant pleaded guilty in the District Court at Porirua to one count of unlawfully taking a car and one count of driving while suspended (third or subsequent).    He  was  sentenced  to  three  months  community  detention  on  the unlawful taking charge and six months community detention on the driving while suspended charge, to be served concurrently.  He was also disqualified from driving for one year.  He appeals against the sentence of six months community detention imposed on the driving whilst disqualified charge, on the grounds that the Court erred in sentencing the appellant to community detention at all or, alternatively, that

the sentence of six months community detention was excessive in the circumstances.

TAUKAMO V NEW ZEALAND POLICE HC WN CRI-2011-485-18 21 April 2011

[2]      The unlawful taking charge arose in circumstances where the appellant and the victim had been in a relationship which had ended at the time of the offending. On 10 April 2010 the victim’s motor vehicle was parked in the driveway of her home address in Lower Hutt.  The vehicle was locked and she had possession of her key. The appellant walked to the victim’s house to get the victim to drop him home.  No one was home.  He saw the car in the driveway.  He had a key and used that key to take the car.  The car was later returned.  The driving while suspended charge arose when the appellant was apprehended on 5 August 2010 while driving.  His licence had been suspended for three months on 12 July 2010 because of excess demerit points.

[3]      The appellant entered an early guilty plea to the charge of driving whilst disqualified and was remanded for sentencing at the same time as the unlawful taking charge.  Sentencing was delayed a number of times because in a pre-sentence report the Probation Service advised the Court that there was an outstanding breach of community work charge.  That charge was withdrawn by the Probation Service just before a defended hearing of that charge and the appellant was eligible for community work at the time when he was sentenced.   Counsel submits that the sentence  of  six  months  community  detention  on  the  driving  whilst  disqualified charge was, in the circumstances, unreasonable and therefore wrong in law.

[4]      It is common ground that the appellant has nine relevant convictions for driving whilst disqualified.   The reasons for sentencing are contained both in the record of the Judge’s formal sentencing notes, and in the transcript of submissions on the  sentencing  date,  18 February 2011.    The  pre-sentence  report  recommended community detention and the Judge, before hearing submissions, indicated that she agreed with the recommendation.  Counsel submitted that the terms of community detention should be kept to a minimum that the Judge felt able. The Judge noted that there was a further driving whilst disqualified and that for the unlawful taking she accepted  that  it  arose  in  the  context  of  a  previous  relationship.    In  her  brief sentencing notes following that exchange Judge Kelly recorded the sentence of three months detention on the unlawful taking and six months on the driving while suspended.

[5]      Counsel for the appellant submits, in support of the appeal, that the Court was bound to impose the least restrictive outcome and that given the appellant’s recent history for driving whilst disqualified (there being one previous conviction in the last

23 years), the sentence imposed was excessive and ought to be reduced on appeal.

[6]      Counsel  for  the  respondent  submits  that  the  sentence  imposed  was  well within the range available to the Judge.  It was not manifestly excessive in that this was the appellant’s ninth conviction for driving whilst disqualified or suspended. The respondent accepts that the majority of those convictions arose between 1984 and  1992  but  submits  that  they  remain  relevant.    Counsel  refers  to  a  recent conviction for driving whilst disqualified from 2009.  Counsel also notes a total of

65 convictions over 27 years.  Counsel notes that the maximum penalty available is two years imprisonment and in the light of the appellant’s numerous previous convictions, when viewed against the maximum, the sentence of six months community detention cannot be said to be manifestly excessive.   Counsel further notes that the effective end sentence of six months community detention related to both  the  driving  whilst  disqualified  and  the  unlawful  taking  charges.    Counsel submits that, having regard to the totality principle, the end sentence imposed on both charges of six months community detention cannot be said to be manifestly excessive.   Counsel for the Crown refers to two cases where offenders have been sentenced to higher penalties for driving whilst disqualified than that imposed in the

present case.  The first is Ngaata v Police,[1] a decision in which I upheld a sentence

of  six  months  imprisonment.     The  second  is  Tahara  v  Police,[2]in  which Winkelmann J, on appeal, imposed a sentence of nine months imprisonment with leave to apply for home detention.

[1] Ngaata v Police HC Wellington CRI-2010-485-73, 27 August 2010.

[2] Tahara v Police HC Auckland CRI-2004-404-370, 5 October 2004.

[7]      The question for this Court is whether the sentence was manifestly excessive. I  have  reached  the  conclusion  that  the  sentence  was  clearly  within  the  range available to the sentencing Judge.  In terms of the hierarchy of sentences, a sentence of community detention was appropriate and not inconsistent with the principle that the least restrictive outcome be imposed.   While this appeal relates solely to the

sentence imposed on the driving whilst disqualified charge, the ultimate sentence

imposed had to reflect the totality of the offending.  A sentence of six months was within the available range.

[8]      For these reasons, the appeal is dismissed.

Solicitors:           Elizabeth Hall, Barrister, Wellington, for Appellant

Crown Solicitor, Wellington, for Respondent

“A D MacKenzie J”