ROWE v NEW ZEALAND POLICE [2022] NZHC 3549

ROWE v NEW ZEALAND POLICE [2022] NZHC 3549 [19 December 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-043-000205[2022] NZHC 3549BETWEEN BLAKE ADAM TOROA ROWEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2022Counsel: P J Mooney for AppellantR L Hicklin for RespondentJudgment: 19 December 2022JUDGMENT OF GRICE J(Sentence Appeal)Summary[1] Mr Blake Rowe was sentenced to three months' imprisonment and a drivingdisqualification of one year on charges of driving while disqualified (third orsubsequent offence)1 and breaching release conditions2 in the New Plymouth DistrictCourt on 30 September 2022.3 The Judge ordered that the sentence of imprisonmentbe served cumulatively with the sentence Mr Rowe was serving at the time.[2] Mr Rowe now appeals the sentence, on the sole issue of whether the sentenceshould have been imposed cumulatively or concurrently.1 Land Transport Act 1998, ss 32(1)(a) and 32(4) carry a maximum penalty of 24 months'imprisonment or a fine of $6,000 and a driving disqualification of one year or more.2 Sentencing Act 2002, s 96(1) carries a maximum penalty of 12 months' imprisonment or a fine of$2,000.3 Department of Corrections v Rowe [2022] NZDC 19158. (District Court decision)Facts[3] On 24 January 2022, Mr Rowe was found by the police driving a vehicle whilehe was subject to a one-year driving disqualification imposed in October 2021. MrRowe has twice previously been convicted of driving while disqualified, suspended orrevoked. This forms the basis of the driving while disqualified (third or subsequentoffence) charge.[4] Upon his release from prison in December 2021, Mr Rowe was subject torelease conditions. These included a condition to report to a probation officer asdirected. On 24 December 2021, Mr Rowe failed to report to his probation officer andhad not provided the Department of Corrections with an accurate address or phonenumber. This forms the basis of the breach of release conditions charge. Mr Rowe'srelease conditions expired on 1 November 2022.[5] Mr Rowe is 35 years old and has an extensive criminal history. He is currentlyserving his term of imprisonment in Manawatū Prison.[6] On 19 September 2022, 11 days before Mr Rowe's sentencing on the currentcharges, he was sentenced to 24 months' imprisonment on another set of charges. Thismeant that, under s 75 of the Parole Act 2002, Mr Rowe's earlier sentence of 24months' imprisonment and later sentence of three months' imprisonment were to beconsidered a single notional sentence of 27 months' imprisonment when determiningwhether the sentence was a long-term or a short term one, Mr Rowe's parole eligibilitydate and the statutory release date.[7] The release date for a short-term sentence is the date when the offender hasserved half of their sentence. The release date for a long-term sentence is the sentenceexpiry date.[8] Section 4 of the Parole Act provides that a notional single sentence of morethan 24 months' imprisonment is a "long-term sentence".District Court's Decision[9] The Court noted that Mr Rowe was, at the time of sentencing, serving a termof two years' imprisonment. Accordingly, the Judge considered that he had no optionbut to impose a cumulative term of imprisonment for the current charges because theoffending was completely separate to the prior offending, for which Mr Rowe wasalready serving a sentence.[10] Nevertheless, the Judge recognised that Mr Rowe's brain injury had made itvery difficult for him to follow directions, such as those given by probation officers.This had led Mr Rowe to accumulate a number of convictions relating to breach ofrelease conditions. The Judge observed that such circumstances may have allowed fora more "creative" sentence, had Mr Rowe not already been serving a sentence ofimprisonment.[11] The Judge also observed that throughout Mr Rowe's lengthy period ofinteraction with the justice system, he had not received counselling or other forms oftreatment for his substance abuse, worsening the effects of his brain injury, despite hisexpressing a motivation to engage with support.[12] His Honour imposed on Mr Rowe a final sentence of imprisonment of threemonths: one month for the driving while disqualified charge and three months for thebreach of release conditions charge reduced by 25 per cent for pleading guilty. Inaddition, a one-year driving disqualification was imposed.Grounds of Appeal[13] Mr Rowe appeals on the grounds that the sentence was manifestly excessive.Relevant Law[14] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence isan appeal against a discretion and must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.4[15] Although s 250 does not refer to "manifestly excessive", it is a principle that iswell-established in the Court's approach to sentence appeals.5Analysis[16] The sole issue in this appeal is whether the sentence should have been imposedcumulatively or concurrently. Although the sentence imposed is relatively short—three months' imprisonment—the effect of the cumulative/concurrent distinction issignificant for Mr Rowe as it will determine whether he is subject to a long-termsentence of imprisonment of 27 months or a short-term sentence of imprisonment of24 months. This, in turn, affects eligibility for parole (in the case of a long-termsentence) and for release, that is, whether Mr Rowe becomes eligible for release at theexpiry of the 27-month sentence, or at the halfway point of the 24-month sentence. Inthe case of a long-term sentence, the offender must appear before the Parole Boardand it will impose conditions on the offender, if released.[17] The appellant says that the operation of the Parole Act in the manner describedabove makes Mr Rowe's sentence manifestly excessive. Mr Mooney submits that theJudge was in error by failing to consider the consequences of imposing a cumulativesentence on the overall sentence Mr Rowe would serve. And those consequences areserious: the cumulative sentence of three months' imprisonment effectively delays MrRowe's release by 15 months. The appellant concedes that the two sets of offendingwere separate in nature and time. However, Mr Mooney submits, considering theprinciple of totality, the current charges warrant a concurrent sentence. Although, dueto time served, Mr Rowe became eligible for parole on 15 November 2022, he will notbe entitled to release until granted release by the Parole Board or at the expiry of hissentence. Whereas, in the case of a short-term sentence, he would be entitled to releaseat the halfway point.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 At [35].[18] Ms Hicklin, counsel for the respondent, says that such operation of the ParoleAct in Mr Rowe's case is a mere by-product of an appropriate sentence being imposedfor the current charges and that imposing a concurrent sentence would result in MrRowe effectively receiving no punishment for the offending. Mr Mooney said theconviction alone, particularly for the breaches, would operate as a penalty in theparticular circumstances of this case.[19] Section 84 of the Sentencing Act 2002 provides "guidance" on the use ofcumulative and concurrent sentences. The provision describes where each type ofsentence may be "generally appropriate". In contrast, s 85, on the use of the totalityprinciple, contains much stronger, mandatory language. I set out the relevant partsbelow with emphasis my own:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.[20] In this case, the sentence imposed, which converted the short-term sentence toa long-term sentence was imposed only 11 days after the original sentence. It is plainthe offending was separate. However, I agree with the appellant that the effect ofimposing a cumulative sentence for the current charges on Mr Rowe's total sentencewas not adequately addressed in the District Court. There is a significant differencebetween becoming eligible for parole and becoming entitled to release. The latterguarantees release from prison whereas the former only allows for the possibility ofrelease with the imposition of potential release conditions, as seen fit by the ParoleBoard. This means that the cumulative sentence imposed on the appellant, in effect,amounted to an extension of his release date by 15 months.[21] An extension of Mr Rowe's term of imprisonment by 15 months for tworelatively minor charges, with maximum penalties of 24 months' and 12 months'imprisonment for each, and in circumstances where three months' imprisonment wasconsidered to be the appropriate sentence, is wholly out of proportion to the gravity ofthe offending and does not reflect the principle of totality.[22] While the Judge, in sentencing Mr Rowe cumulatively, alluded to the fact thatMr Rowe would now have to appear before the Parole Board, the judgment did notaddress the significance of the effect a cumulative sentence would have on Mr Rowe'soverall sentence. This was an error.[23] No issue was otherwise taken with the length of the determinate sentence andthe term is appropriate in the circumstances.[24] Accordingly, I consider, a concurrent sentence is the appropriate sentencingchoice for the offending.Conclusion[25] The appeal is allowed.[26] Mr Rowe is sentenced to three months' imprisonment on the charges of drivingwhile disqualified and breach of release conditions, to be served concurrently with hisexisting sentence. As well, Mr Rowe is disqualified from holding or obtaining adriver's licence for a period of one year beginning 5 April 2023.____________________Grice JSolicitors:Mooney & Webb, New PlymouthC & M Legal, New Plymouth