Winiata v Police
[2023] NZHC 3363
•24 November 2023
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2023-454-024
[2023] NZHC 3363
BETWEEN ROBERT WILLIAM WINIATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 November 2023 Appearances:
R M Gould for Appellant G M Stone for Respondent
Judgment:
24 November 2023
JUDGMENT OF LA HOOD J
(sentence appeal)
A sentence appeal
[1] Robert Winiata appeals against a sentence of two years and two months’ imprisonment imposed by Judge L C Rowe on 1 September 2023.1 The sentence was imposed on charges of dangerous driving causing injury,2 driving with excess breath alcohol causing injury,3 failing to stop or ascertain injury after an accident,4 assaulting a police officer with intent to obstruct,5 and driving while disqualified on three occasions.6
1 New Zealand Police v Winiata [2023] NZDC 19186.
2 Land Transport Act 1998, s 36(1)(b): maximum penalty of five years’ imprisonment or a fine of
$20,000 and a driving disqualification of at least one year.
3 Sections 61(1)(a) and 61(3A): maximum penalty of five years’ imprisonment or a fine of $20,000 and a driving disqualification of more than one year.
4 Section 36(1)(c): maximum penalty of five years’ imprisonment or a fine of $20,000 and a driving disqualification of at least one year.
5 Crimes Act 1961, s 192(2): maximum penalty of three years’ imprisonment.
6 Land Transport Act, ss 32(1)(a) and 32(4): maximum penalty of two years’ imprisonment or a fine of $6,000 and a driving disqualification of at least one year.
WINIATA v NEW ZEALAND POLICE [2023] NZHC 3363 [24 November 2023]
[2] The offending involved Mr Winiata, intoxicated on alcohol and methamphetamine, driving his car at high speed in a dangerous manner, clipping one car before crashing into a second car and causing injury to the driver, requiring hospital treatment. He ran from the scene, then when arrested, assaulted a female police officer by spitting at her and forcefully grabbing her. At the time, he was indefinitely disqualified and was subject to a zero-alcohol licence. He had five previous convictions for driving while disqualified. He was also on bail for two charges of driving while disqualified.
[3] Mr Winiata submits that the sentence was manifestly excessive, and should be reduced and substituted with a sentence of home detention. I conclude below that the sentence was stern but within the available range. I consider the Judge was entitled to take the view that the sentence should reflect the need for public protection given the seriousness of the offending, Mr Winiata’s history and his failure to take chances he had been given to rehabilitate.
What happened in more detail
[4] Mr Winiata was seen driving while disqualified at the Levin BP Service Station on 16 and 30 September 2022. He was granted bail and sentencing had been adjourned to give him a chance to have his indefinite disqualification removed after a finite period of disqualification ended on 10 May 2023.
[5] On 24 May 2023, Mr Winiata was driving at estimated speeds of 100km/h and 150km/h on Hokio Beach Road, Levin where the speed limits are 50km/h and 80km/h, at a time of peak evening traffic. A truck was forced to pullover to avoid being hit while Mr Winiata was overtaking a line of traffic. Approaching a busy intersection with State Highway One, he was estimated to be overtaking cars at 150 km/h in the 50km/h section of the road. He made no attempt to slow down for the intersection and drove over a traffic island. He clipped a car that was taking evasive action containing a man and his 10-year-old son. He then crashed into a stationary car waiting to turn. He reversed away from the car and crashed into a nearby fence before running from the scene. He was shortly arrested.
[6] On the way to the police station, Mr Winiata told police officers he had Covid-19 and spat at them. He continued to struggle against the officers, including forcefully grabbing a female officer’s wrist with both hands. He had to be removed from the car and restrained until he could be taken to the police station with the assistance of more officers.
[7] Mr Winiata had a reading of 721 micrograms of alcohol per litre of breath. He told the provision of advice to the court (PAC) report writer that he had no memory of his offending because of his level of intoxication from alcohol and drugs.
[8] The victim in the stationary car Mr Winiata crashed into was taken to hospital and suffered a serious pelvic injury and a concussion. She lost her car, which was being restored and had significant sentimental value. The victims in the car that was clipped were not injured but the 10-year-old was described as still feeling the shock of the incident later that night. The officer assaulted suffered bruising and tenderness around her eye, arms, and legs, pain and swelling in her wrist, and pain in her neck and lower back. She had to take two days off work.
[9] Mr Winiata has a history of driving-related offending. He had been indefinitely disqualified in 2017 and has been convicted of a further six driving-related offences since then. He has not been imprisoned before but has completed two sentences of home detention without incident.
District Court’s decision
[10] Judge Rowe adopted a starting point of two years and three months’ imprisonment. He considered the offending sat on the serious end of the spectrum. Mr Winiata drove dangerously for a prolonged period at a busy time on a busy road when he was highly intoxicated.
[11]The starting point was uplifted as follows:
(a)by three months for failing to ascertain the well-being of the victim of the accident;
(b)by three months for the assault on the police officer;
(c)by six months for the three counts of driving while disqualified; and
(d)by four months to reflect Mr Winiata’s history of driving-offending and the fact that the present offences were committed while on bail.
[12]The Judge then considered the following mitigating factors:
(a)Mr Winiata had pleaded guilty at the first opportunity, warranting a 25 per cent credit (10 months);
(b)Mr Winiata had expressed genuine remorse, warranting a deduction of two months; and
(c)the s 27 report identified issues of cultural deprivation and disconnection arising from and reflected in a background of poverty, neglect, serious abuse, early exposure to substance abuse and then substance dependence and negative role models. To account for the role of Mr Winiata’s background in his offending, the Judge reduced the sentence by five months.
[13] The Judge came to an end sentence of 26 months’ imprisonment. He noted the need for the protection of the public recognising that the various disqualification orders Mr Winiata had been subject to had not protected the public from the harm his offending had caused. Mr Winiata was also disqualified from driving for two years and reparation orders were made.
Arguments on appeal
For the appellant
[14] Ms Gould, for the appellant takes no issue with the starting point for the lead offending. She submits, however, that the uplifts applied were too great. The six-month uplift for three driving while disqualified charges was too harsh, given the regime builds into it more onerous punishment for subsequent offences. Similar
considerations apply to the four-month uplift for Mr Winiata’s previous driving record. The three-month uplifts for each of the failing to ascertain injury and assault charges were also excessive. Finally, after applying the various uplifts, the Judge failed to adjust the combined starting point for totality.
[15] On the reductions, Ms Gould submits the guilty plea credit requires a mathematical adjustment to be raised to 11 months. The reduction for remorse should have been higher and the Judge seemed to have not considered Mr Winiata’s willingness to engage in restorative justice. The overall reduction for Mr Winiata’s personal background was insufficient. A more appropriate sentence for Mr Winiata is in the range of 18-24 months’ imprisonment (although in oral submissions Ms Gould modified this slightly to 18-22 months’ or a bit higher).
[16] Ms Gould submits that a new adjusted sentence should then be substituted with a sentence of home detention. Mr Winiata has remained sober and drug free since he was taken in custody in May 2023. Ms Gould said that Mr Winiata has been described by the prison authorities as a model prisoner. He is committed to turning his life around, as his parents have done before him. Mr Winiata has been accepted by the Salvation Army drug and alcohol residential rehabilitation programme. Although no place is currently available, one is likely to become available after Christmas (but could happen sooner). Until then home detention could be served at Mr Winiata’s father’s house, which has been assessed as a suitable and pro-social address.7 Mr Winiata has previously complied with two sentences of home detention without incident.
[17] In relation to the two-year disqualification imposed, Ms Gould submitted it should be backdated to 24 May 2023 and reduced to one year and one day.8 This would recognise the steps he is taking to turn his life around by giving him an opportunity to have his indefinite disqualification lifted as soon as possible.
7 I note that Mr Winiata’s father and many other family members attended court in person to support him.
8 One year and one day is required to comply with the requirement that the mandatory disqualification under s 61(3A) of the Land Transport Act must be for more than 12 months.
For the respondent
[18] The respondent’s position is that the end sentence was not manifestly excessive. Mr Winiata poses a danger to the public. He has been given many chances to get back on the path of lawful driving but refuses to do so. The present offending is serious and could well have resulted in much worse consequences. It is not a mitigating factor of the offending that Mr Winiata was under the influence of alcohol and methamphetamine.9 While Mr Winiata’s background explains his alcohol and drug use on the day of the offending, as Judge Rowe noted, it does not explain Mr Winiata’s subsequent behaviour of failing to stop to check on the victim of his crash and assaulting a police officer in the way that he did.
[19] It is not just the case that Mr Winiata continues to drive while disqualified. The other offending has also featured in Mr Winiata’s criminal history, for example, excess breath alcohol, dangerous driving, failing to stop and resisting police. This shows that the uplifts were appropriately applied.
[20] Finally, counsel submits that even if the sentence is reduced to less than two years’ imprisonment, home detention should only be considered if Mr Winiata secures a spot in a rehabilitation programme. The risk to the public remains too great otherwise.
Approach on appeal
[21] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence and a different sentence should have been imposed.10 Generally, the focus in a sentence appeal is on the final sentence rather than the process by which it was reached.11 In Tutakangahau v R, the Court of Appeal accepted, however, that there may be cases where “what has gone wrong is such as to require correction albeit the sentence imposed is within range”.12
9 Sentencing Act 2002, s 9(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Ripia v R [2011] NZCA 101, at [15].
12 Tutakangahau v R, above n 10, at [36].
[22] Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of any error in sentence appeals.13 As the Court said in Tutakangahau v R:14
The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[23] The Court also said if “there is an error of the requisite character, the Court will then form its own view of the appropriate sentence”.15
Assessment of the arguments
Totality principle
[24] I accept Mr Stone’s submission that the uplifts for the less serious charges were not excessive due to a failure to apply the totality principle. The Judge built into the uplifts a reduction to what would have been the appropriate starting point for the individual offences. This must be done in a way that ensures the uplifted total starting point reflects the overall gravity of the offending. While the Judge did not expressly state this was what he was doing, it appears clear to me that it was. It is a well-established sentencing practice in compliance with ss 83 to 85 of the Sentencing Act 2002.16 Having taken this approach, the Judge did not need to again adjust the overall starting point for totality at the conclusion of the process.
[25] I accept Mr Stone’s submission that the Judge’s approach is demonstrated by reference to the driving while disqualified charges. He submitted that, based on guidance from the decisions reviewed in Apiata v Police,17 if those charges had been
13 At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
14 Tutakangahau v R, above n 10, at [32].
15 At [30].
16 In Booth v R [2017] 1 NZLR 223 (SC) at [46], William Young J explained: “The overall sentence imposed must reflect the seriousness of that totality and this is so irrespective of whether the sentences are structured as concurrent or cumulative. So if concurrent sentences are imposed, the most serious offence receives the sentence appropriate for the totality of the offending. For cumulative sentences, it is the length of the sentences, when added together, which reflect that totality. Therefore, the practical effect of the totality principle is that the effective sentence of imprisonment will be the same irrespective of whether the sentences are structured cumulatively or concurrently.” [Footnotes omitted]
17 Apiata v Police [2016] NZHC 3119.
sentenced on their own, they could have attracted a starting point of 14 months’ imprisonment or more.18 Therefore a six-month uplift had a built-in totality reduction.
[26] I also accept that the three-month uplifts for the charges of failing to ascertain injury and assault on police reflect a built-in totality reduction. I would have expected the starting points to be substantially higher if those offences were sentenced individually given the aggravating features of the offending and the maximum penalties. Those features included absconding from the scene of a serious crash without checking on the occupants of the two cars that had been hit, and assaulting a female police officer by spitting at her and causing injuries that required two days off work
[27] In any event, the question on appeal is whether the overall starting point of 39 months’ imprisonment was within the available range, not the precise process by which it was reached. I consider it was stern but within range.
Uplift for personal aggravating factors
[28] Turning to the four-month (10 per cent) uplift for personal aggravating features, including previous convictions, I consider it is also within range. I accept Mr Stone’s submission that the uplift encompassed what the Judge described as the serious aggravating feature of committing these offences while on bail. The Judge also noted that Mr Winiata’s driving record had previously placed the public at risk due to three convictions for driving with excess breath alcohol, and convictions for dangerous driving and failing to stop. He also has a conviction for resisting police. As Mr Stone noted, these convictions mirrored the 24 May 2023 offending. In these circumstances, a 10 per cent uplift cannot be considered excessive.19
18 Fourteen months’ imprisonment was the starting point adopted in Finch v R [2012] NZCA 446 for 5th, 6th and 7th offences of driving while disqualified. In Mr Winiata’s case the 8th conviction was committed while on bail for the 6th and 7th offences in a period where the Court adjourned sentencing to allow him to attempt to have the indefinite disqualification removed.
19 I accept Mr Stone’s submission that there is no concern about double-counting here. When discussing this uplift, the Judge said it was for “your driving record where you have previously placed the public at risk”. He then noted the convictions for driving with excess alcohol, dangerous driving and failing to stop but not the convictions for driving while disqualified. The other aspect of the uplift was the fact the most serious offending was committed while on bail: New Zealand Police v Winiata, above n 1, at [30].
Credit for cultural factors
[29] I accept Mr Stone’s submissions that R v Moses requires the reduction for cultural factors to be assessed against the starting point for the offending, which was 39 months’ imprisonment.20 Five months was therefore a 13 per cent reduction. Despite the Judge’s comments about the causal contribution of cultural factors to some of the offending,21 I consider the discrete credit given for this factor was within the available range.22
Credit for remorse
[30] I do not accept that a standard five per cent (two month) credit for remorse should have been greater due to the offer of restorative justice. As Radich J recently noted, a mere willingness to engage in restorative justice does not by itself justify an independent reduction.23
Guilty plea credit
[31] I do not accept there was a calculation error in the guilty plea credit. Ms Gould’s calculation that it should have been 11 months rather than 10 was based on 25 percent of 43 months’ imprisonment. However, the Judge correctly calculated it as 25 per cent of the 39 month-starting point prior to the uplift for previous convictions.24
Disqualification
[32] Mr Stone took a neutral position on reduction of the two-year disqualification because it will not remove the indefinite disqualification. That will not be removed until Mr Winiata has demonstrated that he has addressed his drug and alcohol
20 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
21 I note the Supreme Court has held that an unduly rigorous standard should not be applied when determining whether deprivation provides a causative contribution to offending: Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
22 Although credit for cultural factors is inherently discretionary, credit in the range of 10 to 15 per cent can be considered within range for cases involving severely deprived and abusive backgrounds. See for example: Minogue v R [2020] NZCA 515 and Kreegher v R [2021] NZCA 22.
23 Pene v R [2023] NZHC 1234 at [27] and text accompanying footnote 26.
24 Moses v R, above n 20; and see Beattie v Police [2022] NZHC 2673.
addiction. I make no criticism of the Judge for taking the view that public protection required a further finite disqualification of two years. However, given the respondent’s stance, the commendable attitude Mr Winiata has demonstrated while in custody, including committing to attending residential rehabilitation, and his positive family support, I am prepared to give him a further incentive to stay on course. I will reduce the mandatory disqualification to the minimum available of one year and one day, and backdate it to 24 May 2023.
Overall assessment and decision
[33] Overall, I consider that the Judge took a stern but available starting point of 39 months’ imprisonment, was not required to adjust it further for totality, and the uplifts and reductions for personal factors were appropriate.
[34] However, the ultimate question is whether the end sentence was within the available range not the process by which it was reached. I consider an end sentence of 26 months’ imprisonment was a sentence that was open to the Judge. The Judge was entitled to take the view that the sentence should reflect the need to protect the public given the seriousness of the offending, Mr Winiata’s history and his failure to take the opportunities he had been given to rehabilitate. The issue of home detention does not therefore arise.
[35] I note that as Mr Winiata has been in custody since 24 May 2023, he has already effectively served a 12-month prison sentence. He will be eligible for parole after serving one third of his sentence, which should be within the next three months. This may coincide with the current estimate of when the residential drug and alcohol programme will be available. It can only be hoped that completion of that programme will give Mr Winiata the tools he needs to continue his commendable progress to date.
[36] I therefore allow the appeal to the limited extent that the two-year finite disqualification is modified to a disqualification of one year and one day backdated to commence on 24 May 2023. The appeal is otherwise dismissed.
La Hood J
Solicitors:
Crown Solicitor, Palmerston North
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