Topia v Police

[2019] NZHC 3235

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000432

[2019] NZHC 3235

BETWEEN

CRUZ TOPIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 December 2019

Appearances:

L Tu’i for the Appellant

M Mortimer for the Respondent

Judgment:

9 December 2019

JUDGMENT OF WOOLFORD J

Solicitors / Counsel:

Lila Tu’i, Barrister, Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland, for the Respondent

TOPIA v NZ POLICE [2019] NZHC 3235 [9 December 2019]

Introduction

[1]                 On 27 April 2019, Cruz Topia was sentenced to 22 months’ imprisonment on the following charges:1

(a)Assault on a person in a family relationship;2

(b)Driving while disqualified (third or subsequent);3

(c)Failing to stop (third or subsequent);4

(d)Refusing to permit blood specimen;5

(e)Reckless driving;6 and

(f)Disorderly behaviour.7

[2]                 Mr Topia appeals his sentence. He does so out of time and therefore requires an extension of time for filing. This is not opposed. Given there is no prejudice to the respondent, I grant the extension accordingly.8

Factual background

[3]                 Mr Topia and his partner, P, have been in a relationship for about five years. They have a five-year-old son together.

[4]                 On the morning of 3 February 2019, Mr Topia was at P’s temporary residence. He was subject to a sentence of intensive supervision. Mr Topia became aggressive. P fled. She ran to a nearby train station where she sat down to catch her breath.

1      Police v Topia [2019] NZDC 16844.

2      Crimes Act 1961, s 194A; the maximum penalty is two years’ imprisonment.

3      Land Transport Act 1998, s 32(1)(a) and (4); the maximum penalty is two years’ imprisonment or a fine of $6,000.

4      Section 52A(1)(a)(ii) and (5); the maximum penalty is three months’ imprisonment.

5      Section 60(1)(c); the maximum penalty is three months’ imprisonment or a fine of $4,500.

6      Section 35(1)(a); the maximum penalty is three months’ imprisonment or a fine of $4,500.

7      Summary Offences Act 1981, s 3; the maximum penalty is three months’ imprisonment or a fine of $2,000.

8      Criminal Procedure Act 2011, s 248(4)(a).

Mr Topia caught up. He put his arm around P’s shoulder. P tried to shrug him off.  Mr Topia responded by punching her to the face. P managed to escape onto a train.

[5]Mr Topia was arrested and granted bail.

[6]                 On 17 May 2019, P was driving through Mt Wellington with Mr Topia. The pair began to argue about P’s supposed infidelity. P pulled over the car and got out. Mr Topia got out too. P then got back in the car and locked the doors. Mr Topia smashed one of the windows of the car in an attempt to regain entry.

[7]                 P again alighted the vehicle. A passer-by saw that she was in distress and offered her a lift. P accepted and got in her car. The passer-by drove away.

[8]                 Meanwhile, Mr Topia had entered P’s car. He gave chase. After overtaking several cars, Mr Topia pulled over in front of the passer-by’s vehicle, blocking its way. He got out of the car and began shouting at P.

[9]                 It is unclear what happened to P at this stage. But several minutes later Police attempted to pull Mr Topia over in her car. He did not pull over. A pursuit started. It was just before 9:00 am on a Friday. Traffic was heavy.  Mr Topia fled the Police, reaching speeds of up to 80 kilometre per house in a 50 kilometre per hour zone. He drove on the wrong side of the road, ran two red lights, mounted the curb and crossed a grass reserve. At one point he narrowly missed two pedestrians walking on the footpath. Finally, Mr Topia collided with another vehicle while driving on the wrong side of the road. He exited the vehicle and attempted to flee on foot. This was unsuccessful. Mr Topia was arrested. When asked to give a blood sample, he refused.

Mr Topia

[10]              Mr Topia is 31 years old. He has an unenviable history of property and driving- related offending as well as breaching Court orders. Of particular concern are a number of convictions for family violence. He has two convictions for male assaults female from 2008. In 2010 he was sentenced to two-and-a-half year’s imprisonment for aggravated robbery. In 2013 he was sentenced to one year’s imprisonment for assault with a blunt instrument in a family violence context. And as recently as 2017

he was convicted of assault with intent to injure. The victim was P. Mr Topia was sentenced to 10 months’ imprisonment.

The sentence

[11]              Mr Topia was sentenced by Judge E M Aitken. She decided to impose cumulative sentences for each tranche of offending, despite noting the “common thread” of violence towards P.9

[12]              For the assault of P on 3 February, the Judge adopted a starting point of six months’ imprisonment. She then uplifted this by three months for Mr Topia’s previous convictions, having particular regard to the assault on P a “relatively short time ago”.10

[13]              Moving to the offending on 17 May, Judge Aitken described it as “appallingly long and prolonged reckless driving that put the  public at risk”.11  She noted that   Mr Topia was disqualified from driving at the time and that the pursuit was preceded by aggression towards P. Mr Topia was also subject to bail and intensive supervision.

[14]              Taking an overview of all the charges, the Judge adopted a total starting point of 12 months’ imprisonment.12 She noted that to a certain extent this figure incorporated Mr Topia’s previous convictions for driving while disqualified and failing to stop (since those charges were third and subsequent). But the Judge also noted that Mr Topia had four previous convictions for reckless driving. Given the importance of public safety and the need for deterrence, she imposed a three-month uplift for Mr Topia’s prior convictions. A further three months was added for the fact that the offending took place while subject to bail and intensive supervision.

[15]              Combining this with the provisional sentence for the assault, Judge Aitken arrived at a sentence of 27 months’ imprisonment. As to totality she said:

9 At [26].

10 At [10].

11 At [17].

12 In her sentencing notes, the Judge indicated that she would impose cumulative sentences on each charge. However, at [23] it is clear that the Judge was of the view that while the driving while disqualified charge alone could have attracted a starting point of 12 months’ imprisonment, this in fact was the starting point she intended to adopt for all the offending.

[27] … I have stood back from that and asked myself is  that disproportionate in the circumstances, but I have concluded that that cannot be the case, and that is because you are at a high risk of reoffending, and I do not accept, on the face of the evidence in front of the Court, that 15 months end point sentence in any way can be justified given the nature of the offending and your prior convictions alone.

[16]              Judge Aitken gave no discount for Mr Topia’s personal circumstances. Largely, that was because Mr Topia has continued to reoffend despite engaging in rehabilitative programmes in the past. As to the guilty plea discount the Judge said:

[36] … You pleaded guilty in the Family Violence Court at case review hearing, which would attract a discount of 15 percent. You pleaded earlier to the other matters but, given that you were followed and caught, it cannot be said that the prosecution had anything other than a very strong case against you and, in my view, a reduction of 15 percent on both charges adequately meets the requirement…

[17]              Judge Aitken reduced the sentence by five months accordingly. This led to an end sentence of 22 months’ imprisonment on all charges.

Submissions

[18]Ms Tu’i, appearing for Mr Topia, makes four submissions:

(a)The Judge should not have imposed cumulative sentences. The two sets of offending were linked by the common thread of P. Further, concurrent sentences would have resulted in a less restrictive sentence.

(b)In any event, the Judge should have given a discount from the end sentence of 22 months’ imprisonment for totality. That figure is just shy of the maximum penalties for the two major charges: assault on a person in a family relationship and driving while disqualified.

(c)Mr Topia was penalised for his prior convictions twice, once for each tranche of offending.

(d)The guilty plea discount was too low. Mr Topia pleaded guilty at the earliest possible opportunity once disclosure was complete.

[19]              Ms Tu’i therefore argues for a lesser term of imprisonment. No case for home detention is advanced.

Discussion

[20]I will deal with each submission in turn.

[21]              First, this is clearly a case where cumulative sentences were appropriate. Generally, cumulative sentences are appropriate for offending which is different in kind.13 Concurrent sentences are generally appropriate if offending is of a similar kind and makes up a connected series.14

[22]              It is true that P was involved in both sets of offending. But in the first she was the primary victim. In the second she was peripheral. Mr Topia may have acted aggressively towards P in the course of the driving-related offending, but the bulk of that offending took place in her absence. Not only that, but the essence of Mr Topia’s culpability in relation to the driving charges lies in the risk to the public. That is not so in the case of the assault on P. Put simply, the two sets of offending were separated by a period of some months and entirely different in nature.

[23]              As for the issue of totality, it is preferable to leave that to the end. That is because I agree with Ms Tu’i that the overall uplift of six months for Mr Topia’s previous convictions was too high. That is especially so in the context of a combined starting point of 18 months for both sets of offending. While Mr Topia has previous convictions for both driving-related offending and family violence, the sum of these is not so serious as to warrant a six-month uplift. As the Judge herself pointed out, much of the culpability of Mr Topia’s previous driving-related offending is reflected in the higher maximum penalty brought about by his third and subsequent convictions. And several of his past convictions for family violence are largely historic. I therefore consider an uplift of three months for Mr Topia’s overall criminal history was appropriate in this case. Further, only a two-month uplift was necessary to reflect the fact that Mr Topia offended on bail and while subject to intensive supervision.

13     Sentencing Act 2002, s 84(1).

14     Section 84(2).

[24]              Applying these revised uplifts to the combined 18-month starting point leads to a provisional sentence of 23 months’ imprisonment. It is then necessary to address the guilty plea discount. I agree with Ms Tu’i that 15 per cent was too low. So does Mr Mortimer, for the Crown. He submits that a discount of 20 per cent may be appropriate. I too consider it to be appropriate. Mr Topia pleaded guilty to both sets of charges early on, but the case against him was strong, particularly in relation to the driving-related charges. He was pursued the whole way and there was no suggestion he was not the driver of the car. Applying this increased discount leads to a sentence of 18 months’ imprisonment. Standing back and having regard to the principle of totality, I consider this is an appropriate reflection of Mr Topia’s overall culpability for both sets of offending. No further adjustment is needed.

Result

[25]              The appeal is allowed. The sentence of 22 months’ imprisonment is quashed. A sentence of 18 months’ imprisonment is substituted in its place.

Woolford J