Waiwai v R
[2012] NZCA 251
•15 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA83/2012 [2012] NZCA 251 |
| BETWEEN WHETU SONNY WAIWAI |
| AND THE QUEEN |
| Hearing: 14 June 2012 |
| Court: Ellen France, Lang and Clifford JJ |
| Counsel: J S Jefferson for Appellant |
| Judgment: 15 June 2012 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of two years nine months imprisonment is quashed and a sentence of one year seven months imprisonment is substituted in its place.
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REASONS OF THE COURT
(Given by Lang J)
Mr Waiwai pleaded guilty in the District Court to charges of burglary, unlawfully getting into a motor vehicle, dangerous driving, failing to stop and failing to comply with the directions of an enforcement officer. On 1 July 2011, Judge Adeane sentenced him to two years nine months imprisonment. He also disqualified Mr Waiwai from driving for a period of two years.[1]
[1] R v Hemaloto DC Napier CRI-2011-041-452, 1 July 2011.
Mr Waiwai applies for an extension of time to appeal to this Court on the ground that the sentence the Judge imposed was manifestly excessive.
The Crown does not oppose the extension of time being granted, and we make an order accordingly.
Background
On 8 February 2011, a Mazda double-cab utility vehicle was stolen from the premises of a Gisborne building company. On the following day, Mr Waiwai was driving the vehicle in the Napier area accompanied by three associates.
The vehicle entered the driveway to a residential property. One of the occupants of the vehicle broke open the back door, thereby causing significant damage to it. Mr Waiwai and two associates then entered the address and removed several items from it. These included a 50 inch flatscreen television set, jewellery, a set of speakers, an iPod, a docking station, car audio speakers and clothing. The total value of the property taken from the address was approximately $4000.
A neighbour observed what was going on at the address, and contacted the police. A short time later, a police patrol vehicle found Mr Waiwai driving the vehicle on a suburban street. When the patrol vehicle pulled Mr Waiwai’s vehicle over, Mr Waiwai dramatically accelerated his vehicle up onto the footpath, travelled through a garden, back onto the footpath and then back onto the road. This precipitated a reasonably lengthy pursuit through an industrial area in which Mr Waiwai’s vehicle was pursued by the police patrol vehicle which had activated its flashing lights.
The police were eventually able to stop the vehicle, and all four occupants were taken into custody. The stolen property was also recovered. In the footwell of the passenger seat in which one of Mr Waiwai’s associates was sitting, the police found an imitation pistol and roll of masking tape.
The structure of the sentence
The Judge took the burglary charge as being the most serious charge. He selected a starting point on that charge of two years six months imprisonment. In doing so, he took into account evidence given in an affidavit sworn in another proceeding by the manager of police intelligence in the Hawkes Bay region. In that affidavit the officer advised the Court of a dramatic increase in burglary rates in the Hawkes Bay region, particularly during daytime hours.
The Judge added an uplift of nine months imprisonment to reflect the fact that Mr Waiwai had been prepared to get into the vehicle and drive it around the streets of Napier less than 24 hours after it had been stolen in Gisborne. He then added a further cumulative sentence of three months imprisonment to reflect the charge of dangerous driving. This led to an end starting point of three years six months imprisonment.
The Judge then applied a discount of approximately 20 per cent to arrive at the end sentence of two years nine months imprisonment. This comprised a sentence of two years on the burglary charge, a cumulative sentence of seven months on the charge of unlawfully getting into a vehicle, and a further cumulative sentence of two months imprisonment on the charge of dangerous driving. The Judge convicted and discharged Mr Waiwai on the charges of failing to stop and failing to comply with the directions of an enforcement officer. He also disqualified Mr Waiwai from driving for a period of two years.
Decision
This Court has already determined that the starting point the Judge adopted in relation to Mr Rota, one of Mr Waiwai’s associates, was too high.[2] In doing so, the Court agreed with the conclusion reached by Woodhouse J, who had earlier heard an appeal against sentence by another occupant of Mr Waiwai’s vehicle, Mr Stephens.[3] Woodhouse J held that a starting point of two years six months was too high for the burglary charge, and that an appropriate starting point on that charge in respect of Mr Stephens was 18 months imprisonment.
[2] Rota v R [2012] NZCA 49.
[3] Stephens v R HC Napier CRI-2011-441-31, 28 September 2011.
This Court held that an appropriate starting point in the burglary charge for Mr Rota was 20 months imprisonment, because he had a greater involvement in the burglary than did Mr Stephens.[4] The Court also held that an uplift of nine months imprisonment was excessive on the charge of unlawfully getting into the stolen motor vehicle. It reduced the uplift in respect of that charge to one of four months imprisonment.[5] The uplift included, however, an allowance for the fact that Mr Rota had pleaded guilty to three charges of breaching his release conditions.
[4] Rota v R, above n 2, at [41].
[5] Ibid, at [42]–[44].
As the Crown properly accepts, a similar approach must be taken in the present case. Mr Waiwai was fully involved in the burglary. We therefore consider an appropriate starting point reflecting his involvement in the burglary to be 20 months imprisonment.
Unlike Mr Rota, Mr Waiwai did not face charges of breaching his release conditions. An uplift must, however, be applied to reflect the charges of dangerous driving and unlawfully getting into a motor vehicle. Both counsel accepted that an overall uplift of four months imprisonment is appropriate to reflect those charges. This produces an end starting point of 24 months imprisonment.
Applying the same level of discount for the guilty pleas as the Judge, we deduct five months from the end starting point to reach an end sentence of 19 months imprisonment.[6]
[6] Counsel for Mr Waiwai did not suggest that a sentence of home detention was appropriate.
Counsel for Mr Waiwai sought to persuade us that the two year period of disqualification was manifestly excessive, and that it should be reduced to an effective term of six months.
We do not accept this submission. By any standards, this was a bad piece of driving that placed other road users at risk. It was aggravated by the fact that Mr Waiwai was motivated at the time by his desire to evade the police. He was also driving at a time when he was forbidden to do so.
At just 20 years of age Mr Waiwai has already amassed a reasonably significant list of previous convictions for driving offences. These include two previous convictions for dangerous driving, as well as convictions for driving with excess breath alcohol, failing to stop and failing as an unlicensed driver to comply with a prohibition on driving.
These factors persuade us that we should not disturb the period of disqualification that the Judge imposed.
Result
The appeal is allowed. The sentence of two years nine months imprisonment is quashed. In its place we impose a sentence of one year seven months imprisonment. That term is imposed on the burglary charge.
The cumulative sentence of seven months imprisonment on the charge of unlawfully getting into a vehicle is quashed, and is replaced by a concurrent sentence of two months imprisonment on that charge.
The cumulative sentence of two months imprisonment on the charge of dangerous driving is quashed, and is replaced by a concurrent sentence of two months imprisonment on that charge.
The sentences imposed on the remaining charges are to remain intact.
Solicitors:
Crown Law Office, Wellington for Respondent
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