Whakarau v New Zealand Police

[2016] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-2 [2016] NZHC 786

BETWEEN

WAIMARIA WHAKARAU

Appellant

AND

NEW ZEALAND POLICE AND THE DEPARTMENT OF CORRECTIONS Respondent

On thepapers:
Counsel:	W Whakarau in Person R Fulton for Respondent
Judgment:	22 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

4.30 pm on 22 April 2016

WHAKARAU v NEW ZEALAND POLICE AND THE DEPARTMENT OF CORRECTIONS [2016] NZHC

786 [22 April 2016]

Introduction

[1]      Ms Whakarau appeals against two sentences:

(i)The first sentence was on 15 May 2015.    In respect of charges of driving   while   disqualified   and   breach   of   community   work Ms Whakarau was sentenced to 12 weeks imprisonment together with special release conditions.  She was also disqualified from driving for one year and a day (“May 2015 Sentence”).

(ii)The  second  sentence  was  on  21  December  2015.    Ms  Whakarau appeared on three charges of breaching prison release conditions and was sentenced to two months imprisonment. An additional one month imprisonment was imposed for remission of outstanding fines (“December 2015Sentence”).

May 2015 Sentence

District Court

[2]      In his sentencing notes the Judge recognised that driving while disqualified was not the most serious crime but it was Ms Whakarau’s thirteenth occasion.  She had been recently before the Court in November 2014 on a charge of refusing blood and had been given an opportunity for a carefully thought out community-based sentence.   Ms Whakarau had breached community work and breached supervision and the pre-sentence report recommended that the only effective sentence that would put any control around her activities was imprisonment with conditions.

[3]      The Judge took what he regarded as a “fairly generous” starting point of four months giving credit for a guilty plea.   He imposed a sentence of 12 weeks imprisonment together with special conditions recommended in the PAC report.

[4]      In view of the release conditions he imposed the Judge cancelled a previous sentence of supervision in relation to a breach of community work.  As well as the custodial sentence the Judge disqualified Ms Whakarau from driving for a further one year and one day.

Analysis

[5]      The appellant has already served the sentence imposed on 20 May 2015. Pursuant to s 248 of the Criminal Procedure Act 2011 the appeal should have been filed 20 working days after the sentence was imposed.  It was filed on 12 January, more than seven months after the due date.

[6]      Even if the appeal was within time I regard the Judge’s assessment and

sentence as correct.

[7]      Ms Whakarau can be properly regarded as a recidivist disqualified driver. Not only was a deterrent sentence required but, she was assessed by the author of the PAC Report as being at high risk of offending and a high risk of harm to the community taking into consideration her criminal history, lifestyle and indifference to her offending.

[8]      Arguably the sentence was lenient in the circumstances.

December 2015 sentence

District Court

[9]      The appellant breached release conditions by failing to report and by moving to another area without the consent of her probation officer.

[10]     At sentencing Ms Whakarau appeared on three charges of breaching prison release conditions but one charge was withdrawn on the basis that guilty pleas would be entered to the remaining two charges.

[11]     A sentencing indication was accepted and guilty pleas were entered on two charges. As well a sum of $10,266.66 in outstanding fines was remitted.

[12]     The Judge  considered  exercising the  discretion  available  to  her to  apply standard release conditions given that the sentence was less than 12 months imprisonment but decided against imposing further conditions.   The conditions previously imposed were cancelled.

[13]     The end sentence was a total of three months imprisonment.

Analysis

[14]     Ms Whakarau appears to be of the view that she could not have breached release conditions because they were not lawfully imposed.   This seems to be an argument that release conditions imposed at the time of the May 2015 sentence were without jurisdiction.

[15]     This is not a tenable ground of appeal. Ms Whakarau pleaded guilty to breach of release conditions.   She was represented by experienced counsel who, judging from the sentencing notes, raised a number of matters in mitigation and presented detailed submissions on Ms Whakarau’s behalf.

[16]     Ms Whakarau was in custody on 21 December 2015 when the sentence was imposed and was released on 21 December 2015.  I infer from that sequence that the Judge anticipated Ms Whakarau’s immediate release in consequence of the sentence she imposed.

[17]     I am not persuaded that in the context of Ms Whakarau’s significant history of breaching Court orders that a sentence of two months was manifestly excessive. Nor was the cumulation of a further one month for remission of the significant sum of $10,266.66 in outstanding fines manifestly excessive.  The term of imprisonment was arguably generous given Ms Whakarau’s apparent indifference to the need for compliance with the law and Court orders and the high risk of continuing offending which the PAC report observed.

Result

[18]     Accordingly, both appeals against sentence are dismissed.

Karen Clark J

Solicitors:

Crown Law Office, Wellington for Respondent