Te Tau v Police
[2020] NZHC 1932
•4 August 2020
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2020-054-1143
[2020] NZHC 1932
NATHAN TE TAU v
NEW ZEALAND POLICE
Hearing: 4 August 2020 Appearances:
P A Foster for the Appellant
J J Harvey for the Respondent
Judgment:
4 August 2020
JUDGMENT OF COOKE J
[1] Nathan Te Tau appeals against a sentence of 18 months’ imprisonment and disqualification from driving for 12 months imposed by the District Court.1 This sentence was imposed following his guilty plea to one charge of breach of release conditions, three charges of driving whilst disqualified (third or subsequent), one charge of failing to remain stopped, and one charge of intentionally hindering an authorised person in breach of the COVID-19 requirements imposed during the Level 4 lockdown.2
1 Police v Te Tau [2020] NZDC 9268.
2 Sentencing Act 2002, s 96A (Cat 2, maximum imprisonment 1 year or fine not exceeding $2000); Land Transport Act 1998, ss 32(1)(a) and 32(4) (Cat 3, maximum imprisonment 2 years or fine of
$6,000); Land Transport Act 1998, ss 52A(1)(b) and 114 (Cat 1, Fine of $10,000); and Health Act 1956, s 72(a) (Cat 2, maximum imprisonment 6 months or fine of $4,000).
TE TAU v NEW ZEALAND POLICE [2020] NZHC 1932 [4 August 2020]
Factual background
[2] Mr Te Tau has a number of previous convictions, including convictions for driving related matters. On 19 July 2019 he was sentenced to one year and one month imprisonment for driving while disqualified on a third or subsequent occasion, and he was disqualified from driving for one year. He was released from prison during 2019. He was given a written instruction as part of his release conditions to report to the Foxton Reporting Centre on 10 October 2019, and fortnightly thereafter.
[3] The first of the present offences relate to his failure to report on 10 October 2019, despite reasonable efforts being made to contact him.
[4] On 24 October 2019 he was then found driving whilst disqualified at 2 am in the morning. This resulted in the second charge.
[5] On 28 January 2020 he was pulled over when police were concerned about the condition of the vehicle he was driving. This was at 9.50 am. He was again driving whilst disqualified.
[6] On 25 April 2020 he was again found driving whilst disqualified at 10.40 pm. On this occasion he was also in breach of the COVID-19 requirements which had by then been imposed. This formed the basis for the further charges of driving while disqualified, failing to remain stopped, and breach of the COVID-19 regulations during the Level 4 lockdown. The summary of facts records that after being pulled over, Mr Te Tau told police officers that the police had no business there. He then got back into his car. He was then warned that if he drove away he would be arrested. He then did so. Police undertook a search for his vehicle but it could not be located. The summary of facts also records that “in explanation the defendant declined to comment”.
[7] The summary of facts also records that Mr Te Tau had been warned or arrested on three previous occasions during the COVID-19 Level 4 lockdown. On 28 March 2020 he was found at 7 pm travelling for non-essential purposes as a passenger in a vehicle, and the occupants were educated about the lockdown rules. On 7 April 2020 he was a passenger in a vehicle with two associates and was verbally warned about
breaching the rules. On 11 April he was located at an address in Sanson with two associates, became obstructive, and arrested for a COVID-19 breach. He was then given a pre-charge warning.
[8] Judge Sygrove noted Mr Te Tau’s seven prior convictions in relation to driving while disqualified. He determined that the starting point for the driving while disqualified charges was 18 months’ imprisonment, which should be uplifted by three months for the breach of the COVID-19 regulations and breach of release conditions. He also uplifted by a further three months for his previous convictions. He then applied the 25 per cent discount for the guilty plea, resulting in the sentence of 18 months’ imprisonment.3
Approach on appeal
[9] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that:
(a)For any reason, there is an error in the sentence imposed on conviction; and
(b)A different sentence should be imposed.
[10] A sentence appeal is an appeal against a discretion and only if there is an error of principle, or the sentence is manifestly excessive, should the appellate court re- exercise the discretion.4 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5 An appeal court should not engage in mere “tinkering”.6 The Court of Appeal has accepted, however that there may be cases, albeit rare, where “what has gone wrong is such as to require correction albeit the sentence imposed is within range”.7
3 Police v Te Tau, above n 1, at [7].
4 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
5 Ripia v R [2011] NZCA 101 at [15].
6 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler v Commissioner of Inland Revenue [2017] NZHC 2888, (2017) 28 NZTC 23-044 at [16]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[11]Three errors are advanced in the present case.
Explanation for conduct
[12] First, counsel for Mr Te Tau argues that there was an explanation for Mr Te Tau’s conduct which was not taken into account by the District Court Judge. That was that the offending on 25 April 2020 took place because Mr Te Tau was attempting to get Ventolin for his asthmatic son, who was having an asthma attack. An affidavit dated 30 July 2020 has been provided by Mr Te Tau, together with an application under s 335 of the Criminal Procedure Act 2011. The Crown contends that the Judge was right to put that explanation to one side as Mr Te Tau had pleaded guilty on the basis set out in the summary of facts (which does not include this explanation), Mr Te Tau’s account was disputed, and in any event it did not make any meaningful difference to the sentence. It also says that the further evidence should not be received as it is not fresh evidence.8
[13] The summary records what Mr Te Tau said to police on being pulled over, which is inconsistent with what he now says. If the explanation he now offers were correct, it would have been especially relevant to the COVID-19 charge. As Judge Krebs records in a decision declining Mr Te Tau bail on 30 April, police had been given an opportunity overnight to check the explanation and did not agree with it.9 The Judge also said that if it were true that the son was having an asthma attack, the obvious approach would have been to ask family at the location with the inhaler to bring it to the home.10 If Mr Te Tau wished to vacate his guilty plea and challenge what the summary recorded with the evidence he now puts forward, he should have done so at that stage.
[14] Once a guilty plea has been entered in relation to a summary of facts, the Court is required to sentence on that basis.11 There was no disputed fact hearing in relation to this matter as Mr Te Tau pleaded guilty on the summary of facts. The explanation has only been subsequently raised, and it is inconsistent with what is recorded in the
8 Lundy v R [2013] UKPC 28 at [119]–[120].
9 New Zealand Police v Te Tau [2020] NZDC 7482.
10 At [10].
11 Sentencing Act 2002, s 24(1)(b). R v Whiunui, CA 212/05, 9 November 2005 at [9]–[12].
summary. In those circumstances, I agree that there is no basis to say that the Judge erred in failing to take this into account. Moreover, given the repeated nature of the offending, and the fact that he was driving while disqualified anyway, I agree that it is unlikely to have made a difference to the ultimate end sentence.
Double-counting
[15] Counsel’s second submission was that there was double-counting. Mr Te Tau’s conviction for driving whilst disqualified on a third or subsequent occasion already intrinsically contemplated the fact that he was a recidivist. To then further increase the sentence because of his previous convictions involved double-counting. In response, the Crown submits that the Court did not say the uplift was due solely to the prior disqualified driving history as it also contemplated the previous failing to stop and driving dangerously charges.
[16] I accept that it was important to take care when uplifting a sentence for prior convictions given that the nature of this particular charge already takes into account that history. There is a risk of double-counting. On the other hand, that is only true to an extent — here Mr Te Tau had committed the offence of driving while disqualified on a third or subsequent occasion previously. The offence by itself did not recognise this aspect of his recidivism. There were also the other non-disqualification charges.
[17] The judgment of the District Court is not entirely clear on the factors that were included in the uplift as opposed to the starting point, but by itself that does not demonstrate that the sentence was erroneous. It is still a question of assessing whether the end sentence is within range. It seems to me that this ground of appeal is really an aspect of the argument I address next.
Ultimate sentence excessive
[18] Counsel for Mr Te Tau submitted that the end sentence was manifestly excessive. He refers to Royal v Police, which involved six charges of driving while disqualified when there had been eight previous convictions for this offending.12 The
12 Royal v Police, HC Palmerston North, CRI-2008-454-41, 17 June 2009.
starting point of two years with no uplift for previous convictions was upheld. In Paparoa v Police, the Court adopted what counsel for Mr Te Tau contended was effectively a 15 month starting point for the equivalent charges.13
[19] The Crown submitted that reliance on other decisions may not be the best guide, and pointed out that in Royal Miller J observed that “sentences vary widely” for this type of offending.14 The Crown contends that the sentence here was not an inappropriate one.
[20] I accept that the sentence here was at the higher end of the available range, but I do not accept it was outside that range. In Royal v Police, Miller J held:
[22] Mr Stevenson argued that Judges routinely adopt much lower starting points than the two years used in this case, even for recidivist offenders such as Mr Royal. I accept that lower starting points are sometimes used, but sentences vary widely. The question is whether the sentence was manifestly excessive. There were six charges of driving while disqualified over a short period, and eight previous convictions for doing so. He was subject to release conditions. In these circumstances, it was open to the Judge to take a starting point of two years, the maximum for a single offence, before credit for guilty pleas: R v Butterfield CA100/97 23 July 1997. As the Court held in that case, disqualification is an important instrument for dealing with irresponsible driving, and adherence to such orders is essential if the integrity of the driver licensing system is to be preserved. Mr Royal has made it plain that he is not prepared to accept disqualification, and must take the consequences.
[21] Similar considerations arise here. What is notable about the present offending is that it appears to have taken place not long after Mr Te Tau’s release from imprisonment for committing the same offence. There may have been an initial period of compliance with the terms of release, but he then failed to do so. His interactions with police and his repeated offending then occurred almost continuously from that time. In those circumstances, it was inevitable that the end sentence was going to be materially higher than the sentence imposed last year.
[22] The starting point was properly set by reference to the three charges of driving while disqualified. It also seems to me that the starting point was appropriately uplifted because of recidivism, the breach of release conditions, the COVID-19
13 Paparoa v Police, HC Auckland, CRI-2009-404-189, 18 August 2009. The actual starting point was two years’ imprisonment.
14 Royal v Police, above n 12, at [22].
charge, the failure to stop, and the failure to comply with advice and other requirements generally. I accept that it is at the higher end of the available range, but given Mr Te Tau’s continuous refusal to comply with the requirements, it is not surprising that a stern approach was adopted.
[23] I recognise that there may be a growing concern that imprisonment is not proving to be an effective tool to prevent Mr Te Tau from further offending. But as things stand at present, it cannot be said that the District Court erred in imposing a longer period of imprisonment. For these reasons, the appeal is dismissed.
Cooke J
Solicitors:
Peter Foster, Levin for the Appellant
BVA, Palmerston North for the Respondent
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