Tuhiwai v Police

[2016] NZHC 3042

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-000052 [2016] NZHC 3042

IN THE MATTER OF	an appeal against sentence
BETWEEN	ROBERT TUHIWAI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 December 2016
Counsel:	L J Smith on Behalf of G M Skinner for the Appellant J W Wall for the Respondent
Judgment:	14 December 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 14 December 2016 at 12.45 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Thode Utting, Auckland

Marsden Woods Inskip Smith, Whangarei

TUHIWAI v POLICE [2016] NZHC 3042 [14 December 2016]

Introduction

[1]      Mr Tuhiwai was sentenced to 11 months’ imprisonment and disqualified from driving for 12  months  for three charges  of driving whilst  disqualified  (third or subsequent) and one charge of breach of release conditions.1

[2]      He appeals against this sentence on the basis that it is manifestly excessive and the Judge failed to consider the appropriateness of an electronically monitored sentence.

Offending

[3]      The  three  charges  of  driving  whilst  disqualified  relate  to  events  on

17 December 2015, 21 June 2016, and 4 August 2016.

[4]      On 17 December 2015, Mr Tuhiwai was the driver of a car stopped by police. A police check revealed that he had been disqualified from driving on 6 May 2015. Mr  Tuhiwai  stated  that  he  thought  the  disqualification  was  over.    Mr  Tuhiwai pleaded guilty to this offending on 23 February 2016.  He was remanded on bail at this  time to  enable him  to  complete  attempts  to  regain  his  licence  and  end  an indefinite disqualification imposed.

[5]      On 21 June 2016, Mr Tuhiwai was again the driver of a car.  He was unable to produce a driver licence and checks revealed he was disqualified.  He appeared in Court for that offending and was again granted bail.

[6]      Finally, on 4 August 2016, Mr Tuhiwai was driving when he was stopped by police.    He  was  asked  for  an  explanation  as  to  why  he  was  driving  whilst disqualified.  He told police that he was giving a lift home to his friends who had

been drinking.

1      Land Transport Act 1998, s 32(1)(a) and (4).  The maximum penalty is two years’ imprisonment and the offender must be disqualified from holding or obtaining a driver licence for at least 12 months.   The breach of release conditions charge carries a maximum penalty of one year’s imprisonment: Sentencing Act 2002, s 96(1).

[7]      The breach  of release conditions  charge relates  to  the release conditions imposed  on  23  February  2016  on  a  charge  of  breach  of  community  work. Mr Tuhiwai was convicted and discharged for breaching those release conditions on

18 April 2016, and then failed to report to a probation officer as required by the conditions on three occasions.

Prior convictions

[8]      Mr Tuhiwai has two previous driving whilst disqualified convictions from May 2011 and May 2015.   The sentence for the May 2015 offending included a sentence that he be indefinitely disqualified, and sentenced to 300 hours’ community work for breaching a zero alcohol licence.

[9]      Mr Tuhiwai has two convictions for driving with excess breath/blood alcohol from 2009 and 2011, a conviction for being an unlicensed driver and failing to comply from 2014, a conviction for refusing to give a blood specimen from 2013, and a further conviction for exceeding the breath/blood alcohol limit for a person under 20 from 1995.

[10]     Mr  Tuhiwai  has  numerous  other  prior  convictions.    Since  2012  he  has received convictions for: breach of court release conditions, breach of community detention conditions, breach of supervision conditions, breach of community work, failure to answer bail and breach of home detention conditions.  In addition, he has nine convictions for contravening a protection order.

Provision of Advice to Courts Report (PAC Report)

[11]     The  PAC  report  identifies  an  attitude  of  entitlement  as  contributing  to Mr Tuhiwai’s offending.  It was noted that he showed little remorse and justified his actions by stating that he needed to get to work.

[12]     However, the writer noted that Mr Tuhiwai was supported by his employer and his mother; and reported that he was willing to comply with any sanction the Court wished to impose.  The Salvation Army confirmed that he had an assessment

scheduled for a programme addressing alcohol issues and to assist him in regaining his licence.

[13]     The risk of Mr Tuhiwai re-offending was assessed as medium due to his previous disqualification convictions.  His risk of harm to others was also assessed as medium, given his extensive history of violence.

[14]     The writer expressed some concern with Mr Tuhiwai’s suitability to receive a community-based sentence given his poor compliance and assessed him as suitable only if he was managed with much oversight and a no tolerance policy to any non- compliance. A sentence of community detention was recommended.

District Court sentence

[15]     In  sentencing  Mr  Tuhiwai  the  Judge  took  into  account  Mr  Tuhiwai’s convictions from 2011 and 2015; that he was on bail when he committed the second offence; and was before the Court on the first two offences when he committed the third.2

[16]   The Judge accepted the Crown’s submission that a starting point of imprisonment  was  appropriate  adopting  two  months  for  the  first  offence,  four months for the second, six months for the third, and imposing a two month uplift for the breach of release conditions.

[17]     In  relation  to  the aggravating and  mitigating  features  and  alternatives  to imprisonment the Judge said:

[15]      You have other convictions which could call for a further uplift of two months. You are entitled to a 25 per cent discount for your guilty pleas. I am urged to impose community detention and supervision on you. In my view, that is too far down the sentencing ladder. The question I need to decide is whether this is to be a full-time custodial sentence or that home detention might be appropriate.

[16]     In my view, the three driving whilst disqualified, committed in the way that I have described, requires a full-time custodial sentence to mark deterrence and denunciation and to be consistent.

[18]     Accordingly, the Judge sentenced Mr Tuhiwai as follows:

(a)     Driving    whilst    disqualified    (17    December):    two    months’

imprisonment, 12 months’ disqualification;

(b)Driving whilst disqualified (21 June): four months’ imprisonment, cumulative, 12 months’ disqualification;

(c)     Driving whilst disqualified (4 August): four months’ imprisonment, cumulative, 12 months’ disqualification;

(d)Breach     of    release     conditions:     one    month    imprisonment, cumulative.

[19]     The  special  release  conditions  contained  in  the  PAC  Report  were  also imposed to continue six months past the end of the sentence date.

Grounds of appeal

[20]     The  first  ground  of  appeal  is  that  the  sentence  is  manifestly  excessive. Counsel submits that the Judge did not address the contents of the PAC report, mitigating factors,  the totality principle  or impose the least  restrictive outcome. Counsel relies on Moore J’s decision in Opetaia v Police which sets out different

sentences for offending of this kind.3

[21]     The second ground advanced is that the Judge did not consider whether an electronically monitored sentence was appropriate.  Counsel refers to the appellant’s employment,  enrolment  in  the  Salvation Army  programme  and  remorse.    It  is submitted that a sentence of community detention and supervision would address the purposes and principles of sentencing and be the least restrictive outcome in all the circumstances.

[22]     The police support the Judge’s decision.   In written submissions the police submit that the starting points were appropriate as were the aggravating features

relating to Mr Tuhiwai.  Any discount for a guilty plea must be mitigated by his lack of remorse.  With regards to an electronically monitored sentence, the police submit that Mr Tuhiwai’s previous record would preclude a less restrictive outcome given his non-compliance with court orders.

Approach on appeal

[23]     Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[24]     In any other case, the Court must dismiss the appeal.4   An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.5

[25]     An appeal against a refusal to grant home detention operates in the same way as a regular sentence appeal.  It does not provide an opportunity to revisit the merits but rather the question is whether the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong.6

Is the sentence manifestly excessive?

[26]     The Judge adopted a starting point of 12 months for the driving offences.  He provided an uplift of two months for the breach of release conditions.

[27]     There are two approaches to fixing a start point for multiple driving whilst disqualified offences.  The Drinkwater v Police approach takes into account all of

the defendant’s previous driving whilst disqualified convictions in fixing a starting

4      Criminal Procedure Act 2011, s 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].

point for the first driving whilst disqualified conviction.7    The alternative approach involves fixing a starting point for the index offending and providing an uplift for prior offending.8    On either approach the overall starting point should still be the same.9

[28]     The Judge in this case appears to have followed the Drinkwater approach. The starting point fixed by the Judge therefore took into account Mr Tuhiwai’s two previous convictions from 2011 and 2015, and encompassed the starting points for the fourth and fifth such convictions also.

[29]    In Opetaia v Police, Ms Opetaia appealed her sentence of 15 months’ imprisonment imposed on four charges of driving whilst disqualified (third or subsequent), one representative charge of breach of intensive supervision, and one charge of giving false details to police.10    The driving charges were Ms Opetaia’s fifth, sixth, seventh, and eighth charges for this type of offending.   Ms Opetaia’s sentence of intensive supervision had been cancelled as part of the sentencing.  The

District Court Judge had adopted a starting point of 10 months for the first of the charges, and provided three, three month uplifts for the remaining driving charges. After reviewing a number of authorities, Moore J considered the starting point of 10 months for the fifth charge was stern, but within range.   The end sentence was upheld on appeal.

[30]     In Whitley v Police, Wylie J considered an appeal from a sentence of 22 and a half months’ imprisonment on three charges of driving while disqualified (third and subsequent).11   The charges were the ninth, 10th, and 11th of such charges.  A start point of 10 months for the ninth charge was adopted in that case following Opetaia v Police.   Two uplifts of four months were given for the 10th and 11th offences

recognising that they were committed whilst on bail.

7      Drinkwater v Police [2013] NZHC 1936.

8      Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.

9      Keenan v Police [2014] NZHC 1894 at [23].

10     Opetaia v Police, above n 2.

11     Whitley v Police [2016] NZHC 1025.

[31]     Based on these cases, and the authorities reviewed in them, I consider the starting point of 12 months was near the limit of the appropriate range to reflect Mr Tuhiwai’s five convictions for driving whilst disqualified (third or subsequent).

[32]     But, even if the starting point was found to be outside the applicable range, I do  not  consider  such  an  error  would  have  resulted  in  a  manifestly  excessive sentence.   That is because Mr Tuhiwai’s criminal history would have justified a further uplift in my view.  Although the Judge noted that a two month uplift was available for other previous convictions, it is not apparent from the calculations that such an uplift was applied.  Application of that uplift would have negated the effects of adopting a starting point which may have been outside the applicable range.

[33]     In terms of mitigating factors, the only matter which could have entitled Mr Tuhiwai to a discount in my view, was his steps taken towards rehabilitation in referring himself to the Salvation Army course.  However, the fact that some of the offending occurred whilst on bail, which had been granted to allow efforts at rehabilitation to be pursued, suggests there is little commitment to reform, at least in relation to the driving offences.   The attitude of entitlement and the little remorse shown for the offending as recorded in the PAC Report also weigh against any further discount.  I do not consider the Judge erred in this respect.

[34]     Finally, while the Judge did not specifically mention totality, I consider that the end sentence accurately reflects the totality of Mr Tuhiwai’s offending.   Any failure to consider totality principles did not vitiate the end sentence.

[35]     I am not therefore satisfied that the end sentence was manifestly excessive and this ground of appeal must fail.

Suitability of an electronically monitored sentence

[36]     Counsel for Mr Tuhiwai submits that the Judge erred in not turning his mind to the suitability of an electronically monitored or community-based sentence.

[37]     The Judge considered that the three driving whilst disqualified convictions required a full-time custodial sentence for the purposes of deterrence and denunciation.   That consideration meets the requirement that a Judge make a considered and principled choice between the two forms of sentence (custodial and home detention) and identifies which of them better qualifies as the least restrictive

sentence to impose taking into account all the purposes of sentencing.12

[38]     I consider that the Judge’s decision was correct.  While home detention can serve  the  purposes  of  denouncement  and  deterrence,  Mr  Tuhiwai’s  persistent breaches of court imposed conditions over the past four years indicate that home detention  would  be inappropriate.    Of particular relevance is  his  conviction  for breach of home detention conditions in 2012, which appears to have been committed at the same time as a refusal to give a blood specimen.   Mr Tuhiwai received a sentence of imprisonment at that time.

[39]     In  addition,  as  the  Judge  identified,  the  features  of  the  offending  itself, including the offending on bail whilst he was being given the chance to regain his licence,  and  the  added  offence of  failing to  abide by release  conditions,  weigh against an electronically monitored sentence in this case.

[40]     The fact that Mr Tuhiwai had employment prospects and made efforts to rehabilitate himself does not tip the balance in favour of an electronically monitored sentence in my view.

[41]     For these reasons I consider that the Judge was correct to discount a sentence of home detention or community detention.

Result

[42]     The appeal is dismissed.

Edwards J

12     Fairbrother v R [2013] NZCA 340 at [30].