Te Kira v Police

[2016] NZHC 2735

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-22 [2016] NZHC 2735

BETWEEN

JOHN TE KIRA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 November 2016
Appearances:	A Stevens for Appellant M Grills for Respondent
Judgment:	15 November 2016

JUDGMENT OF MANDER J

[1]      Mr  Te  Kira  appeals  against  a  sentence  of  250  hours  community  work imposed on him in the District Court after he pleaded guilty to driving whilst his driver licence was suspended, being a third or subsequent offence.1

[2]      Mr Te Kira initially appealed the sentence on the ground the length of community work imposed was manifestly excessive.  However, at the hearing of the appeal the focus turned to the appropriateness of the sentence rather than whether its length was outside the range available to the sentencing Judge.  No issue was taken with the imposition of the mandatory disqualification period.2

The offending

[3]      On 24 November 2015, Mr Te Kira was suspended from driving any motor vehicle for a period of three months due to excess demerit points.

1      New Zealand Police v Te Kira  [2016] NZDC 17030; Land Transport Act 1998, ss 32(1)(c) and

32(4).

2      Land Transport Act 1988, ss 32(1)(c) and 32(4)(b).

TE KIRA v NEW ZEALAND POLICE [2016] NZHC 2735 [15 November 2016]

[4]      On 12 February 2016, Mr Te Kira was stopped by police while driving his vehicle in Balclutha.   While at the time he told the police that he believed the suspension was invalid, he admitted that he knew his suspension period had not expired.  In any event, he ultimately pleaded guilty.

District Court Judge’s decision

[5]      Mr Te Kira was sentenced by Judge Flatley in the course of a busy criminal list, during which there was little time to hear submissions in mitigation, or much opportunity to focus on Mr Te Kira’s personal circumstances.   Unsurprisingly, no pre-sentence report was called for and Mr Te Kira was summarily sentenced.

The appeal

[6]      Mr Te Kira has five previous convictions for driving whilst disqualified for which he received the following sentences:

·    23 May 1990:  one month imprisonment (concurrent with a three month sentence for unlawfully taking a motor vehicle).

·    3 January 1991:  four months imprisonment (concurrent with a one month sentence for unlawfully taking a motor vehicle).

·    18 July 1995:  four months periodic detention (concurrent with two other four month periodic detention sentences for smoking and possession of cannabis, and obstructing police).

·    5 August  1995:    six  months  periodic  detention  (concurrent  with  six months periodic detention for escaping custody).

·    3 April 2004:  300 hours community work.

[7]      In support of his appeal, Mr Te Kira submitted his last offence of this type was some 12 years ago and that there were no features or associated breaches of the Road Code which aggravated his non-compliance.   It was submitted that Mr Te

Kira’s offending had markedly decreased in seriousness and frequency by 2014, and that these features had not been adequately reflected in the level of the sentence.

[8]      On the hearing of the appeal, Mrs Stevens, on behalf Mr Te Kira, while not resiling from those submissions, acknowledged it was difficult to argue the 250 hours community work, particularly when set against the background of the previous sentence of 300 hours for the same offence, albeit 12 years earlier, could be considered  excessive.     However,  counsel  maintained  her  submission  that  the sentence did not provide sufficient credit for the period since he had last offended by driving whilst disqualified or suspended.

[9]      It was submitted that Mr Te Kira presents as much older than 48 years.  He is a  diabetic  and  in  poor  health,  and  that  he  would  struggle  to  obtain  suitable community work where he lives in Balclutha.  A further difficulty is that because of his disqualification he would have difficulty getting to the community work centre.

[10]     The appeal in essence focussed on the difficulty Mr Te Kira would have in completing such a large number of hours of community work with a breach being inevitable.  Reference was made to how Mr Te Kira had struggled with a sentence of

100 hours community work imposed on 4 December 2015, and which resulted in him being in breach on 8 July for failing to attend in June of that year.  Judge Phillips had made a point of persevering with Mr Te Kira.   This resulted in Mr Te Kira completing the 100 hours on 26 July 2016 and him being convicted and discharged. Despite the judicial oversight, Mr Te Kira had struggled to complete 100 hours.

The Crown’s position

[11]     The  Crown  submitted  the  250  hours  community  work  could  not  be considered manifestly excessive, particularly when regard was had to Mr Te Kira’s history.   The Crown acknowledged that Mr Te Kira has various personal factors which may make compliance difficult, and that the suitability of the community work sentence, rather than whether it is manifestly excessive, should be the focus.

Decision

[12]     The sentence of 250 hours community work is not manifestly excessive.  I do not consider the apparent hiatus in Mr Te Kira’s offending of this type justifies a lesser sentence.    Nor does  it  appear that  Mr Te Kira’s  offending has  markedly decreased in seriousness and frequency.   Following his release from a sentence of imprisonment in 2004, Mr Te Kira amassed 23 convictions, of which 15 attracted sentences of imprisonment.  It is likely the apparent reduction in the frequency of his offending is as a result of having been sentenced to lengthy periods of imprisonment during that time.

[13]     However, I do accept that because of Mr Te Kira’s personal circumstances and the length of the sentence of community work there is a significant risk that he will inevitably find himself in breach of the sentence.  Efforts have been made in the past to manage Mr Te Kira to try and ensure that he abide with his responsibilities and see the sentence through.  Against that background, the present length of community work would seem unrealistic and likely result in breaches with accompanying punitive consequences.

[14]     In  light  of  these  considerations  the  appeal  effectively  distilled  to  a resentencing exercise and a consideration of whether a more appropriate sentence could be imposed that still reflected Mr Te Kira’s culpability, including the deliberate nature of his breach and his prior convictions for the same type of offending.  It was accepted that a lesser sentence of community work combined with a short sentence of community detention would achieve that result.

[15]     I am willing to indicate that the appeal can be allowed if the sentence of 250 hours community work can be substituted with a sentence of 150 hours together with a sentence of three months community detention.  In order to progress that option it is necessary for me to direct a probation officer to prepare a pre-sentence report in accordance with  s  26A of the  Sentencing Act  2002.   Accordingly,  I make  that direction.

[16]     Subject to the content of a satisfactory report I am prepared to deal with the appeal on the basis outlined.  In that event, I will issue an addendum to this judgment allowing the appeal and formally substituting the proposed sentence.

Solicitors:

A Stevens Barrister, Dunedin

RPB Law, Dunedin