Wade v Police

[2014] NZHC 86

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-063-002767 [2014] NZHC 86

BETWEEN  TAMA JUNIOR WADE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   7 February 2014

Appearances:           Appellant in person

A D Hill for Respondent

Judgment:                7 February 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TAMA JUNIOR WADE v NEW ZEALAND POLICE [2014] NZHC 86 [7 February 2014]

[1]      Mr Wade pleaded guilty in the District Court to charges of driving whilst disqualified, attempting to take a motor vehicle and assaulting a police officer.  On

22  October  2013,  Judge  Weir  sentenced  Mr  Wade  to  an  effective  sentence  of

15 months imprisonment.  He now appeals to this Court against the sentence on the basis that the Judge erred in principle in imposing the sentence, and this resulted in an end sentence that was manifestly excessive.

The facts

[2]      The charges arose as a result of two incidents.  The first involved Mr Wade being found driving a motor vehicle on 26 July 2013 whilst he was disqualified from driving.

[3]      The remaining charges arose out of incident that occurred in the early hours of 18 August 2013.  On that occasion, Mr Wade went to a residential property in a drunken state.   He then entered a locked  motor vehicle  and  tampered  with the ignition.  An occupant of the address woke up and managed to overcome Mr Wade before he could drive away in the vehicle.  The police were called and Mr Wade told them that he had been left stranded in Rotorua and needed to travel to Auckland.  He was abusive towards medical staff when he was taken to the hospital so that injuries he sustained during the struggle with the occupant of the address could be treated. A police officer then directed him to return to bed, but Mr Wade refused and tried to walk to the door.  The officer then restrained Mr Wade, and attempted to take him back to this bed.  His response was to turn towards the officer and spit at him, hitting him squarely in the face.

The sentence

[4]      The Judge viewed the charges arising out of the incident on 18 August 2013 as being the most serious.   He noted that Mr Wade has a lengthy list of previous convictions for offending involving dishonesty.   He also has other convictions for drugs.

[5]      The Judge took a starting point of ten months imprisonment on the lead charge of attempting to unlawfully take the motor vehicle.   He then applied a six

month uplift to reflect Mr Wade’s previous convictions.   He then reduced the end

sentence of 16 months imprisonment by 25 per cent to reflect Mr Wade’s guilty plea.

[6]      The Judge imposed a cumulative sentence of two months imprisonment in respect of the assault charge, and a further cumulative sentence of one month’s imprisonment on the charge of driving whilst disqualified.

The appeal

[7]      Mr Wade raises a number of issues about the sentencing process.  First, he points out that the charging document in relation to the charge of attempting to take the motor vehicle recorded that the maximum penalty for that offence was one of seven  years  imprisonment.    Counsel  for the respondent  accepts  that  the correct maximum  penalty  in  respect  of  this  charge  was  a  sentence  of  two  years imprisonment.

[8]      Mr Wade also points out that notes made by the Judge during the course of the hearing indicate that he had initially imposed a sentence of nine months imprisonment on the charge of attempting to unlawfully take the motor vehicle.  The Judge then altered the notes to record that he had imposed a sentence of 12 months imprisonment.   Finally, Mr Wade points out that his criminal and traffic history records that he has been convicted of a charge of unlawfully taking a motor vehicle, when in fact it should refer to a charge of attempt.

Decision

[9]      The latter issue does not have any impact on the sentence that the Judge imposed  because  it  was  created  by  an  administrative  act  after  the  Judge  had sentenced Mr Wade.  Nevertheless, I accept that Mr Wade’s criminal history should not obtain a notation that is incorrect.  I therefore direct that the Registrar is to ensure that Mr Wade’s criminal history is amended to reflect the charge to which he pleaded guilty.

[10]     I do not place any emphasis, either, on the fact that the Judge altered his notes to reflect the end sentence that he imposed.   The Judge clearly made an error in

recording  that  he  had  sentenced  Mr  Wade  to  nine  months  imprisonment.    He therefore altered the entry to reflect the sentence he had actually imposed.

[11]     The only issue that gives me cause for concern is the fact that the charge sheet  before  the  Judge  recorded  that  the  maximum  sentence  on  the  attempted unlawful taking charge was seven years imprisonment.  This may have influenced the Judge in his selection of a starting point of ten months imprisonment.  I propose to give Mr Wade the benefit of the doubt in relation to this issue, and deal with it by reducing the starting point to one of eight months imprisonment.  An uplift of four months imprisonment, or 50 per cent, to reflect Mr Wade’s previous convictions would then be appropriate.  The sentence is then to be reduced by three months to reflect the guilty plea.

[12]     This would result in an end sentence on the attempted unlawful taking charge of nine months imprisonment.  The cumulative sentences that the Judge imposed in respect of the remaining charges are not affected by any of the issues that Mr Wade raises on appeal. They will therefore remain intact.

Result

[13]     The  appeal  is  allowed  and  the  sentence  on  the  charge  of  unlawfully attempting to take a motor vehicle is reduced to nine months.   The end result, therefore,  is  that  Mr Wade  will  be  required  to  serve  a  sentence  of  12  months

imprisonment.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Copy to: Appellant