Wiki v Police
[2018] NZHC 885
•1 May 2018
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-463-22
[2018] NZHC 885
BETWEEN WARREN WILLIAM HOHEPA WIKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 May 2018
(Heard at ROTORUA)
Appearances:
K M Jackson for Appellant A Z M Shore for Respondent
Judgment:
1 May 2018
(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]
WIKI v NEW ZEALAND POLICE [2018] NZHC 885 [1 May 2018]
[1] Mr Wiki pleaded guilty in the District Court to a charge of driving whilst disqualified in its aggravated form. He has seven previous convictions for either driving whilst suspended or prohibited from driving or driving whilst disqualified.
[2] On 13 February 2018, Judge P G Mabey QC sentenced Mr Wiki to 12 months imprisonment.1 Mr Wiki appeals against sentence on the basis that the Judge adopted a starting point that was too high, and failed to give him adequate discount for an early guilty plea.
[3] In addition, the Judge disqualified Mr Wiki from driving for 18 months. Mr Wiki appeals against the length of the disqualification.
The facts
[4] The facts of Mr Wiki’s offending are unremarkable. He was disqualified from driving for a period of 15 months on 19 October 2017 after pleading guilty to a charge of driving whilst disqualified. Eleven days later, on 30 October 2017 and whilst serving a sentence of community detention imposed on 19 October 2017, he was found driving a motor vehicle on SH29 near Tauranga. In explanation, he told the police he was driving home. His explanation when sentenced was that a companion had become ill and he had found it necessary to drive the companion home.
The Judge’s decision
[5] The Judge adopted a starting point of 15 months imprisonment. He expressed the opinion that Mr Wiki had “an appalling record”. He has two historic convictions for driving whilst disqualified or driving whilst suspended in 1990. In 2017 he was again convicted of driving whilst disqualified. During the 12 month period leading up to the present sentence, Mr Wiki drove whilst disqualified or suspended from driving on no fewer than four separate occasions. The most recent was on 3 August 2017.
[6] The Judge did not accept that a sentence of home detention was appropriate. He considered deterrent principles were to the fore, and imposed a sentence that he considered to be a deterrent to Mr Wiki personally.
1 New Zealand Police v Wiki [2018] NZDC 2505.
Decision
Starting point
[7] For Mr Wiki, Ms Jackson submits the Judge selected a starting point that was too high having regard to previous sentences imposed on him for similar offending. She points out that previous sentences have comprised sentences of community work and community detention. On 19 October 2017, Mr Wiki was sentenced to six months community detention and 100 hours community work on the charge to which I have already referred. She submits that an increase from six months community detention to 15 months imprisonment was too great in all the circumstances. She also contends the Judge ought to have given Mr Wiki a credit of 25 per cent for his guilty plea.
[8] Ordinarily, I would agree that a starting point of 15 months imprisonment was at the very upper end of the available range, even having regard to the fact that Mr Wiki has seven previous convictions for similar offending. That is tempered in the present case, however, by the fact that Mr Wiki was just 11 days into the sentence of six months community detention imposed on 19 October 2017. That sentence was obviously going to be subsumed within any sentence of imprisonment that might be imposed in respect of the present offending.
[9] If the Judge had elected a starting point of approximately ten to 12 months imprisonment, as Ms Jackson accepts would have been an appropriate starting point for the present offending, Mr Wiki would not serve any effective sentence in respect of the offending for which he was sentenced on 19 October 2017. The Judge did not expressly say he was taking this factor into account. Nevertheless, an appellate court may only interfere with a sentence in circumstances where it is manifestly excessive or subject to some other error of principle in the sentencing process.
[10] In the present case I do not consider a three month uplift to reflect the sentence of community detention that was being replaced by the sentence of imprisonment can be said to be untoward. For that reason I do not accept the Judge erred in principle in selecting a starting point of 15 months imprisonment.
Home detention
[11] I do not accept that a sentence of home detention would have been an appropriate outcome in the present case. A sentence of community detention is in some respects akin to a sentence of home detention because it requires the offender to be subject to electronic monitoring at night. Mr Wiki was not deterred by that type of sentencing from offending again on the present occasion. I consider the Judge was entitled to take the view that deterrent principles required a sentence of imprisonment rather than home detention.
Credit for guilty plea
[12] The only remaining issue relates to the credit the Judge gave Mr Wiki for his guilty plea. Mr Wiki intimated a guilty plea on his second appearance in the District Court. He then entered the plea on the following appearance, which was the first occasion he had appeared before a Judge. On that basis it must be said that he entered a guilty plea at the earliest possible opportunity.
[13] Importantly, however, the Supreme Court in Hessell v R did not say that a discount of 25 per cent is mandatory in cases of an early guilty plea.2 Another Judge may well have given a credit of 25 per cent for the guilty plea, but I do not consider the Judge erred in principle in applying a discount of 20 per cent. Rather, that is the maximum discount that may be allowed.3 The Supreme Court observed that another factor the Court may take into account when assessing the credit to be given for the guilty plea is the strength of the prosecution case and the inevitability of conviction.4 Mr Wiki had no hope of defending this charge, because he was caught in the act of driving whilst disqualified.
[14] For that reason I do not consider the end sentence to be manifestly excessive because of the fact that the Judge applied a discount of 20- per cent rather than 25 per cent to reflect the guilty plea.
2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 (SC).
3 At [75].
4 At [60].
Disqualification
[15] Mr Wiki also appeals against the period of 18 months disqualification that the Judge imposed. However, the Judge who sentenced Mr Wiki on 19 October 2017 disqualified him for driving for one year three months from that date. Mr Wiki cannot complain that his offending 11 days later resulted in a period of disqualification just three months longer.
Result
[16]The appeal against sentence is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Tauranga
Public Defence Service, Tauranga