Tohu v Police
[2021] NZHC 2660
•6 October 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-488-30
CRI-2021-488-31 [2021] NZHC 2660
BETWEEN RANGI TOHU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 October 2021 Counsel:
S M Nicholson for appellant T N Fai’ai for respondent
Judgment:
6 October 2021
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 6 October 2021 at 12.30pm
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Stephen Nicholson, Kerikeri for appellant Crown Solicitor, Whangārei for respondent
TOHU v NEW ZEALAND POLICE [2021] NZHC 2660 [6 October 2021]
[1]Mr Tohu pleaded guilty to the following charges:
(a)careless driving;1
(b)two of unlawful possession in a public place of a firearm and ammunition;2
(c)driving with excess blood alcohol content;3
(d)reckless driving causing injury;4
(e)assault on a person in a family relationship;5
(f)three of failing to comply with a prohibition given by an enforcement officer.6
[2] Mr Tohu was sentenced by Judge Harvey in the District Court at Kaikohe on 2 August 2021 to a total effective end sentence of two years, nine months’ imprisonment and disqualified from driving.7 He appeals against his sentence on the ground that it is manifestly excessive.
Background
[3]The offending occurred on three distinct occasions.
[4] First, in the evening of 13 January 2021, Mr Tohu was driving a car on the main street of Kaikohe. On 22 September 2010, he had been forbidden to drive until he obtained a driver licence. While driving the car in Kaikohe, he had crossed the centre line and collided with an oncoming car travelling toward him. The driver of
1 Land Transport Act 1998, s 37(1). Maximum penalty: $3,000 fine and disqualification for such period as court thinks fit.
2 Arms Act 1983, s 51. Maximum penalty: three years’ imprisonment or fine of $4,000 or both.
3 Land Transport Act 1998, s 56(2). Maximum penalty: three months’ imprisonment or fine of
$4,500 and disqualification for six months or more.
4 Land Transport Act 1998, s 36(1)(a). Maximum penalty: five years’ imprisonment or a fine of
$20,000 and disqualification for one year or more.
5 Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
6 Land Transport Act 1998, s 52(1)(c). Maximum penalty: fine of $10,000.
7 Police v Tohu [2021] NZDC 15705.
that car lost control and crashed into a parked car. Mr Tohu departed the site of the accident. When Police arrived, they searched his car and found a .22 rifle with a round in the chamber. Police subsequently located Mr Tohu in a nearby street. He was on the ground and unresponsive. An evidential blood alcohol test was performed in hospital which returned a result of 198 milligrams of alcohol per 100 millilitres of blood. Mr Tohu pleaded guilty to driving with excess blood alcohol content; careless driving; the firearms charges and being an unlicensed driver who failed to comply with a prohibition from driving.
[5] Second, Mr Tohu was seen driving a car near Moerewa on 4 April 2021. He pleaded guilty to being an unlicensed driver who failed to comply with the prohibition he had been given.
[6] Third, late in the morning on 29 May 2021, Mr Tohu was driving near Moerewa. He was still an unlicensed driver who failed to comply with the prohibition he had been given. There was a passenger in the car with him. Mr Tohu drove at speed, in excess of the posted speed limit, and crossed the centre line. He lost control of the car on two occasions intentionally before regaining control. On the third occasion, he skidded while taking a corner far too fast, lost control and collided with a tree. His passenger suffered severe injuries, including a shattered left foot, multiple broken ribs, lacerations and bruising to her right arm and a blood clot on her brain.
[7] He and his passenger were admitted to Whangārei Hospital. There they shared a room. There was an argument between them. Mr Tohu attempted to stab her with a bread and butter knife while they were both lying in adjacent beds. Mr Tohu pleaded guilty to reckless driving causing injury, driving while prohibited and assault on a person in a family relationship. A blood specimen was also taken from Mr Tohu for analysis. Testing established the presence of methamphetamine.
District Court sentencing
[8] Judge Harvey convicted and discharged Mr Tohu on the three charges of driving in breach of a prohibition.
[9] After setting out the details of the offending, the Judge indicated he was prepared to give the full 25 per cent discount for guilty pleas even though they had not been entered at the first opportunity.
[10] Judge Harvey dealt with the January 2021 offending first. He settled on six months’ imprisonment for the two firearms offences and one month’s imprisonment for the excess blood alcohol charge. The Judge imposed disqualifications of three months on the careless driving charge and 28 days on the excess blood alcohol charge. Although Judge Harvey said he would give Mr Tohu “full credit” for his pleas of guilty, he did not follow the sentencing methodology mandated by the Court of Appeal in Moses v R.8 That means that it is necessary to infer that he applied a plea discount of 25 per cent, being the maximum permissible,9 before settling on the sentence of six months’ imprisonment. Moreover, the Judge did not say that the firearms sentences were to be served concurrently, but that must be inferred from the total end sentence imposed on the January charges.
[11] Turning to the May 2021 charges of reckless driving causing injury and assault, Judge Harvey acknowledged the seriousness of the injuries caused to the passenger and arrived at what he described as a “starting point” of three years’ imprisonment. After adjusting the sentence for Mr Tohu’s guilty pleas, the Judge imposed a sentence of two years, three months’ imprisonment on the reckless driving charge with disqualification for 12 months and a standalone concurrent sentence of one month’s imprisonment for the assault charge.
[12] The Judge said that the sentences of six months’ imprisonment for the January offending and two years and three months’ imprisonment for the May offending would be served cumulatively, meaning that the total effective end sentence of imprisonment is for two years and nine months.
8 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
Approach on appeal
[13] An appeal against sentence is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.10 The appellant must point to the error and the Court will consider whether it is material and whether it has resulted in a manifestly excessive sentence. In assessing whether a sentence is manifestly excessive, the focus is on whether the sentence imposed is within range, rather than the process by which it was reached.11
Submissions
[14] Mr Nicholson, for Mr Tohu, advances a single ground of appeal against the starting point for the May reckless driving offending only. He submits the starting point of three years’ imprisonment was too high and that the correct starting point for Mr Tohu’s offending was two years. He points to other cases where starting points of three years or more were adopted and says the offending in those cases was more serious than Mr Tohu’s offending. Mr Nicholson also observes that Mr Tohu’s previous convictions for driving offences are limited. Counsel says the guilty plea discount of 25 per cent would reduce the adjusted sentence to 18 months’ imprisonment and the end sentence should have been two years’ imprisonment.
Discussion
[15] Only the starting point for the May 2021 offending is in issue in this appeal, but the Judge’s approach to explaining the reasons for the sentences imposed on an array of charges makes it difficult to identify the starting point and the adjustments that led to the effective end sentence imposed for that group of charges.
[16] In Moses, the Court of Appeal laid out a two-step approach to sentencing in these terms:12
10 Criminal Procedure Act 2011, s 250(2).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[36].
12 Moses v R, above n 8 (footnotes omitted).
[46]A two-step methodology should be used:
(a)the first step … calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;13
(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.
[47] Because the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology, it makes no difference to sentence length if the guilty plea discount is the last step in the sentence calculation. However, the sentencing judge should still quantify a guilty plea discount, for several reasons: the discount is justified in substantial part by systemic and social considerations distinct from the offender’s personal circumstances; the discount must be transparent, which aids predictability; and the calculation allows others, including the offender and the victim, to identify the sentence that would have been imposed but for the plea. It should be apparent that the discount does not exceed the maximum of 25 per cent of the adjusted starting point.
[48] This methodology does not preclude credit for some mitigating factors being assessed by reference to what would otherwise be the end sentence (that is, the product of step 2), where that is appropriate. For example, credit for time spent on electronically monitored bail is commonly calculated in that way.
[17] The approach described is founded on a single charge. It allows the Court to make clear its view of the seriousness of the offending, including taking account of aggravating features such as offending on bail and prior convictions that might call for added deterrence by applying an uplift to the initial starting point. The approach then requires the sentencing court to make appropriate adjustments based on any aggravating or mitigating factors applying to the offender personally, such as taking into account the offender’s youth; remorse; steps towards rehabilitation including treatment for any relevant addiction; attempts (successful or otherwise) at restorative justice, together with an identified, separate percentage discount for a guilty plea. Where there are multiple charges, the total effective end sentence would be reached either by applying an uplift to the end sentence reached for the lead charge so that the sentences would be served concurrently or, where the charges arose from entirely
13 I interpolate that any uplifts for aggravating features such as offending on bail and prior convictions calling for added deterrence are included in the adjustment at this step.
separate incidents, by adopting the two-step methodology for each and imposing cumulative sentences, bearing in mind totality principles.
[18] As the Court of Appeal said at [47] of Moses, sentencing judges should quantify a guilty plea discount separately from other factors, for the reasons given in the judgment, including making it apparent that the discount for the plea does not exceed the maximum allowable under Hessell principles.14
[19] I accept that a District Court Judge sentencing an offender in a busy sentencing list, on a raft of charges of varying degrees of seriousness spread over separate occasions of offending, may not have the time to fully explain the reasons for a sentence, at least compared to that which might be afforded to a judge taking a less pressured approach on appeal. But it is apparent here from the way in which Mr Nicholson has been required to argue the appeal, and the Crown to resist it, that the more transparent analysis required by the Moses approach would have led to a greater understanding on the part of Mr Tohu and his counsel that what might have seemed to be a starting point that was out of kilter with other cases was in fact within the range available to the Judge.
[20] I do not think Judge Harvey adopted a starting point of three years’ imprisonment that was intended to address only the reckless driving charge. As the experienced judge would have recognised, an uplift for the totality of the offending on 29 May 2021, including the appalling attack on Mr Tohu’s injured partner while she was in hospital, had to be marked by the Court in some clear way. That is underscored by Mr Tohu’s many prior convictions for violent offending, particularly family violence, which in itself warranted a stern sentence.
[21] In short, I think the Judge’s reasoning was not reflected in a clear explanation, but I am satisfied, for the reasons I will explain, that the outcome was within the range available to the Judge and not manifestly excessive. To reach that conclusion, I have applied the Moses approach to the charge of reckless driving on 29 May 2021, which is the lead charge for the offending that day.
14 Hessell v R, above n 9, at [75].
[22] Adopting that approach, I would set a starting point for the reckless driving offence which accords with the purposes and principles of sentencing, then adjust that starting point for the totality of the offending by applying an uplift for the assault charge that takes account of Mr Tohu’s prior convictions for violence. The discount of 25 per cent for guilty pleas (which, in my view, was generous) would be applied to that starting point. There are no mitigating personal factors.
[23] Looking at the initial starting point, Ms Fai’ai submits the aggravating factors identified in Gacitua v R assist in determining a starting point for reckless driving.15 I note the Court of Appeal in that case referred to the decision of the Court of Appeal of England and Wales in R v Cooksley,16 but was clear that the guidelines identified there were useful only for considering aggravating and mitigating factors. The Court of Appeal did not endorse the sentencing bands.17
[24] Among the relevant aggravating factors in this case were the presence of methamphetamine in Mr Tohu’s blood test results; excessive speed; ignoring warnings from his passenger; and a prolonged, persistent and deliberate course of very bad driving. Further, Mr Tohu habitually drove while unlicensed and caused serious injury to his passenger.
[25] Mr Nicholson has filed a large number of case summaries with his submissions. Three of the reckless driving cases assist in identifying an appropriate starting point.
[26] First, in Tamehana v R the defendant pleaded guilty to six charges of reckless driving causing injury and other offending.18 The sentencing Judge took a starting point of three years’ imprisonment for all of the offending, which was upheld by this Court on appeal. The facts of the offending were that the defendant drove on open roads and through a township at speeds far in excess of the posted limits. When taking a bend, he lost control of the car, crossed the centre line and collided with a car travelling in the opposite direction.
15 Gacitua v R [2013] NZCA 234.
16 R v Cooksley [2003] 3 All ER 40 (Crim App) at [5].
17 Gacitua v R, above n 15, at [29].
18 Tamehana v R [2019] NZHC 2850.
[27] The occupants of that car – the driver and her three young children – and passengers in the defendant’s car all suffered injuries which were described as moderate to serious and required hospital treatment. The driver of the other car suffered the most significant injuries, which included numerous broken bones requiring at least two sessions of surgery. Her recovery was slow and difficult. One of her children suffered a serious head injury requiring surgery to his skull. It is clear this was offending at the more serious end of the scale.
[28] Second, in Walshe v Police the defendant pleaded guilty to a large number of driving charges, including two of reckless driving causing injury, and other charges (offensive weapon, possession of controlled drugs and dishonesty).19 The sentencing Judge settled on a starting point of two years, eight months’ imprisonment for the reckless driving charges which was upheld by this Court on appeal. The relevant offending occurred when the defendant, pursued by Police, crossed the centre line, drove through a red light and crashed into another car occupied by three people. Two of them required hospital treatment. One suffered a facture and bruising and the other only bruising. The driving in this offending is marginally more serious than Mr Tohu’s offending. The passenger in Mr Tohu’s car appears to have suffered more serious injuries than the two people who were injured in Walshe, one much less seriously.
[29] Finally, in Hazel v Police the defendant also pleaded guilty to a charge of reckless driving causing injury and other charges (including family violence offending).20 The sentencing Judge adopted a starting point of 24 months’ imprisonment which this Court considered within the available range. The facts which gave rise to the reckless driving charge were that the defendant was signalled by Police to stop. He did not, driving off at high speed. The crash occurred when he was driving on the wrong side of the road. The car became airborne and when it landed he lost control and crashed into a house. The two passengers in the car with him both sustained serious injuries.
[30] My assessment is that Mr Tohu’s offending falls somewhere between Walshe and Hazel. In both of those cases, an aggravating feature of the offending was the
19 Walshe v Police [2019] NZHC 3068.
20 Hazel v Police [2020] NZHC 609.
effort by the defendant to evade Police that is not present in this case. However, those injured in Walshe suffered less serious injuries than the passenger in Mr Tohu’s car. And while the passengers injured in Hazel did suffer serious injury, I do not consider they were as serious as in this case. It is a matter of degree but the injuries here required more significant treatment; recovery from them would have been challenging and arduous. Having regard to those cases, I consider a starting point of 30 months would be appropriate.
[31] Taking account of totality, an uplift of at least six months’ imprisonment is justified for the assault and related driving charge. The assault was particularly serious given the injuries the victim was dealing with and her vulnerability arising from those injuries. She ought to have been safe in hospital. A six-month uplift for the assault is more than justified to account for Mr Tohu’s extensive history of family violence offending. That is an issue he needs to address if he is to avoid lengthy prison sentences in future.
[32] From the adjusted starting point of 36 months’ imprisonment, I would apply the 25 per cent discount for guilty pleas, to reach an effective end sentence of 27 months’ imprisonment.
[33] This is the sentence the Judge imposed on these charges. A starting point of three years’ imprisonment for reckless driving would have been outside the available range if the Judge had sentenced solely on the reckless driving charge. But taking account of the totality of the offending and Mr Tohu’s personal circumstances, the end sentence on the May 2021 charges was not manifestly excessive.
[34] Given there was no dispute on the sentence for the other charges, or that the sentence for those charges should be served cumulatively, the final sentence of two years and nine months’ imprisonment was within the available range.
Result
[35]I dismiss the appeal.
Toogood J
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