RAWIRI v POLICE [2022] NZHC 2466

RAWIRI v POLICE [2022] NZHC 2466 [29 September 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000221[2022] NZHC 2466BETWEEN DANIEL RAWIRIAppellantAND NEW ZEALAND POLICERespondentHearing: 27 September 2022Counsel: AYH Young for AppellantSE Arnerich for RespondentJudgment: 29 September 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Thursday, 29 September 2022 at 11 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Manukau.AYH Young, Auckland.The case[1] Daniel Rawiri appeals a 27-month term of imprisonment for a raft of offences,including some that are serious. Mr Rawiri's primary contention is that the startingpoint was too high. An appeal must be allowed if there is an error in the sentence anda different one should be imposed.1Background[2] On 4 November 2020, Mr Rawiri was sentenced to 18 months' intensivesupervision and a term of community work. He was also disqualified from driving for18 months. Mr Rawiri breached the sentence of intensive supervision on 27 Januaryand 3 February 2021 by failing to report. On 5 March 2021, he again breached thesentence by changing homes without the approval of his probation officer. Mr Rawirialso breached the community work sentence on 5 February 2021 by failing to report.[3] On or about 1 June 2021, Mr Rawiri unlawfully took a 2002 Mazda Atenza inHamilton. Police located the car 9 June 2021. Mr Rawiri was driving. It wasdisplaying a stolen registration plate. Mr Rawiri failed to stop and was chased,including by the Police helicopter. Mr Rawiri drove dangerously. He wove in and outof traffic and drove on the wrong side of the road. Mr Rawiri eventually stopped, thenfled. He was found on a nearby property. Mr Rawiri was charged in relation to thissequence. He appeared in the Manukau District Court 24 January 2021 and wasgranted bail.[4] On 19 July 2021, Mr Rawiri was found, as a passenger, in a car that had beenunlawfully taken.[5] This introduces the most serious offending:(a) On 15 July 2021, hence four days before the events of [4], Mr Rawiriwas at the home of his then partner. He had with him a sawn-offshotgun. Mr Rawiri discharged the gun into the bedroom floor. Three1 Criminal Procedure Act 2011, s 250(2).children were in another part of the home. Mr Rawiri assured them hehad fired the gun accidentally.(b) Mr Rawiri returned to the home 26 July 2021 and after a brief argumentabout the victim's baby daughter, threatened to shoot the victim if shedid not hand her daughter to him. Mr Rawiri did not then have theshotgun with him.(c) Police went to the home 29 July 2021. They found the shotgun and tworounds of ammunition.[6] Consequently, Mr Rawiri faced these charges:Date of offending ChargeJanuary to March 2021 Breach intensive supervision (x 3)Breach of community work1 – 9 June 2021 Unlawfully takes a motor vehicleDangerous drivingDriving while disqualifiedFailing to stop for Police19 July 2021 Unlawfully gets into a motor vehicle15 – 29 July 2021 Reckless discharge of a firearmThreatening to do grievous bodily harmUnlawful possession of a firearmUnlawful possession of ammunition[7] Mr Rawiri pleaded guilty 8 April 2022. On 30 June 2022, Judge C J Fieldimposed a term of 27 months' imprisonment.2 The Judge adopted a global startingpoint of 43 months' imprisonment. It comprised a host of smaller sentences, which2 Police v Rawiri [2022] NZDC 12444.were made cumulative.3 The Judge deducted 25 percent for Mr Rawiri's guilty pleasand 10 percent for personal mitigating features identified in a cultural report. TheJudge disqualified Mr Rawiri from driving for two years.The appeal[8] Mr Rawiri contends the starting point was too high. He invites attention to theuse of cumulative sentences which, on his behalf, Mr Young argues breached thetotality principle. Mr Young also argues the Judge should have made some allowancefor "youth"; Mr Rawiri was 24 years of age when he committed most of the offences.Analysis[9] Although Mr Young focussed on the use of cumulative sentences as againstlonger concurrent terms, this "sort of debate is rather sterile".4 More important is theoverall length of the sentence, which I now explore.[10] The mainstay of the starting point was the period of 33 months' imprisonmentfor the firearms offences and threat to kill. It comprised 18 months' imprisonment forthe reckless discharge offence, a cumulative sentence of nine months for thepossession and ammunition offences, and a further cumulative sentence of six monthsfor the threat to kill.[11] This presents as a little too high because the possession and ammunitionoffences were partially subsumed by the reckless discharge offence. Or, approachedthe other way, the reckless discharge aggravated Mr Rawiri's possession of the firearmand ammunition. A starting point of 24 months' imprisonment for these offences,uplifted by six months for the threat to kill, results in a lower starting point of30 months' imprisonment.53 A starting point of 18 months' imprisonment for the reckless discharge of a firearm offending; acumulative sentence of nine months' imprisonment for the possession of a firearm and ammunitionoffending; a cumulative sentence of six months' imprisonment for the threatening to kill offending;a cumulative sentence of four months' imprisonment for the breaches of intensive supervision;and a cumulative sentence of three months' imprisonment for the driving-related offending.4 R v Faifua CA287/05, 27 March 2006 at [33].5 See R v Taikato [2018] NZHC 77 and Blair v Police HC Dunedin CRI-2010-412-10, 13 May 2010.[12] The Judge added another 10 months' imprisonment: four months for thebreaches of intensive supervision; three months for the breach of community work;and another three months for the remaining offences. This mix also presents as a littletoo high because the offences in relation to the breaches of the sentences occurred ataround the same time. An overarching starting point of six months' imprisonmentwould be about right, in turn producing a global starting point of 36 months'imprisonment as against 43 months.6[13] It follows I accept Mr Young's submission the starting point was too high,albeit by a somewhat different analysis. This is not the end of the story, however. TheJudge deducted 25 percent for Mr Rawiri's guilty pleas. Maximum credit for a guiltyplea is ordinarily reserved for the situation when a defendant pleads guilty at the firstreasonable opportunity. Even then, other factors, such as the strength of theprosecution case, and whether a defendant has benefitted from a plea arrangement, arerelevant.7 Mr Rawiri pleaded guilty to all charges 8 April 2022, and in consequenceof a plea arrangement. Mr Young contends the Judge was right to give full creditbecause the relationship between Mr Rawiri and his previous lawyer broke down, andthere were delays because of the pandemic.[14] Full credit was benevolent notwithstanding these factors. The guilty pleaswere not early, and Mr Rawiri benefitted from a plea arrangement. Discount of15 percent would be orthodox. Applying this to the adjusted starting point with the10 percent for personal mitigating features produces a term of 27 months'imprisonment, the same sentence as that imposed.[15] Mr Young contends the Judge should have reduced the sentence forMr Rawiri's age. However, Mr Rawiri already has an extensive criminal history, bothin the adult jurisdiction and the Youth Court. Any discount for age would be offset bythis factor.[16] The Judge disqualified Mr Rawiri from driving for 24 months. I am notpersuaded this period is too long. The driving offending was serious.6 This global starting point also recognises the commission of offences on bail.7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[17] It follows the sentence is not manifestly excessive, the key consideration in anysentence appeal.Result[18] The appeal is dismissed...Downs J