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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 3042
Decision Date: 14 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tuhiwai v Police was heard on appeal against sentence. 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. The appeal was against the sentence, claiming it was manifestly excessive and that the Judge failed to consider the appropriateness of an electronically monitored sentence. The legal issues for the court to decide were whether the sentence was manifestly excessive and whether the Judge should have considered an electronically monitored sentence.

The court found that the starting point of 12 months for the driving offences was near the limit of the appropriate range, but the offender's criminal history justified a further uplift. The court considered that the Judge did not err in not applying a discount for mitigating factors, such as the offender's steps towards rehabilitation. The court also found that the Judge's consideration of the purposes of sentencing, including deterrence and denunciation, was appropriate, and the end sentence accurately reflected the totality of Mr. Tuhiwai's offending. Regarding the electronically monitored sentence, the court found that the Judge's decision to discount a home detention or community detention sentence was correct, given the offender's persistent breaches of court-imposed conditions over the past four years.

As a result, the appeal was dismissed. The court did not find the sentence manifestly excessive and upheld the Judge's decision to impose a full-time custodial sentence for the purposes of deterrence and denunciation.

Orders