RAWIRI v R [2023] NZCA 171

RAWIRI v R [2023] NZCA 171 [17 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA708/2022[2023] NZCA 171BETWEEN DANIEL RAWIRIAppellantAND THE KINGRespondentHearing: 1 May 2023Court: Brown, Moore and Fitzgerald JJCounsel: A Y H Young for AppellantN J Wynne for RespondentJudgment: 17 May 2023 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] On 30 June 2022, Mr Rawiri, having pleaded guilty to a number of charges inthe District Court, was sentenced to a term of imprisonment of 27 months.11 Police v Rawiri [2022] NZDC 12444.[2] He appealed that sentence to the High Court on the primary ground that thestarting point was too high. Although Downs J agreed that the global starting point ofthree years and seven months' imprisonment was too high, he was not persuaded thatthe end sentence was manifestly excessive.2 He considered that the District CourtJudge had been overly generous in giving Mr Rawiri the maximum 25 per cent creditavailable for his guilty pleas. In all the circumstances of Mr Rawiri's case, the Judgeconsidered that the orthodox credit should only have been 15 per cent. Had that beenapplied, the end sentence would have been the same. The appeal was dismissed.[3] Mr Rawiri then applied to this Court for leave to bring a second appeal.Leave was granted on 12 April 2023.3[4] This judgment deals with Mr Rawiri's second appeal, which the Crownopposes.Background[5] The background was comprehensively summarised by Downs J:4[2] On 4 November 2020, Mr Rawiri was sentenced to 18 months'intensive supervision and a term of community work. He was alsodisqualified from driving for 18 months. Mr Rawiri breached the sentence ofintensive supervision on 27 January and 3 February 2021 by failing to report.On 5 March 2021, he again breached the sentence by changing homes withoutthe approval of his probation officer. Mr Rawiri also breached a communitywork sentence on 5 February 2021 by failing to report.[3] On or about 1 June 2021, Mr Rawiri unlawfully took a 2002 MazdaAtenza in Hamilton. Police located the car [on] 9 June 2021. Mr Rawiri wasdriving. It was displaying a stolen registration plate. Mr Rawiri failed to stopand was chased, including by the Police helicopter. Mr Rawiri drovedangerously. He wove in and out of traffic and drove on the wrong side of theroad. Mr Rawiri eventually stopped, then fled. He was found on a nearbyproperty. Mr Rawiri was charged in relation to this sequence. He appeared inthe Manukau District Court on 24 January 2021 and was granted bail.[4] On 19 July 2021, Mr Rawiri was found, as a passenger, in a car thathad been unlawfully taken.[5] This introduces the most serious offending:2 Rawiri v Police [2022] NZHC 2466 [High Court judgment].3 Rawiri v R [2023] NZCA 104 [Leave judgment].4 High Court judgment, above n 2.(a) On 15 July 2021, hence four days before the events of [4],Mr Rawiri was at the home of his then partner. He had withhim a sawn-off shotgun. Mr Rawiri discharged the gun intothe bedroom floor. Three children were in another part of thehome. Mr Rawiri assured them he had fired the gunaccidentally.(b) Mr Rawiri returned to the home [on] 26 July 2021 and after abrief argument about the victim's baby daughter, threatenedto shoot the victim if she did not hand her daughter to him.Mr Rawiri did not then have the shotgun with him.(c) Police went to the home [on] 29 July 2021. They found theshotgun and two rounds 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 bodilyharm5Unlawful possession of a firearmUnlawful possession of ammunition[7] Mr Rawiri pleaded guilty [on] 8 April 2022. On 30 June 2022,Judge C J Field imposed a term of 27 months' imprisonment. The Judgeadopted a global starting point of 43 months' imprisonment. It comprised ahost of smaller sentences, which were made cumulative. The Judge deducted25 percent for Mr Rawiri's guilty pleas and 10 percent for personal mitigating5 This charge was described in the District Court judgment and elsewhere in the High Courtjudgment as one of threatening to kill, which is consistent with the description used in the chargingdocuments. However, this difference in description is not material for sentencing purposes:per s 306(1)(a) of the Crimes Act 1961, the maximum term of imprisonment for both threateningto kill and threatening to do grievous bodily harm is seven years.features identified in a cultural report. The Judge disqualified Mr Rawiri fromdriving for two years.(Footnotes omitted.)The appeal[6] This being Mr Rawiri's second appeal against sentence, s 256 of the CriminalProcedure Act 2011 (CPA) applies. Section 256(2) requires the Court to allow theappeal if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.In any other case, the Court must dismiss the appeal.6The High Court decision[7] Downs J considered that the 43-month starting point adopted in theDistrict Court was too high. He noted that "[t]he mainstay of the starting point wasthe period of 33 months' imprisonment for the firearms offences and threat to kill".7It comprised 18 months' imprisonment for the reckless discharge of a firearm offence,a cumulative sentence of nine months for the possession and ammunition offences anda further cumulative sentence of six months for the threat to kill.8 In the Judge's view,that combination presented as too high because the possession and ammunitionoffences were partially subsumed by the reckless discharge offence. He considered astarting point of 24 months' imprisonment for these offences, uplifted by six monthsfor the threat to kill, was the correct approach. That resulted in a lower starting pointof 30 months' imprisonment.96 Criminal Procedure Act 2011, s 256(3).7 High Court judgment, above n 2, at [10].8 At [10].9 At [11].[8] Furthermore, Downs J considered that the uplift of 10 months' imprisonmentfor the remaining offences10 was also too high because the breaches of intensivesupervision and community work occurred around the same time. Instead, the Judgewas of the view that an "overarching starting point of six months' imprisonment wouldbe about right", producing a global starting point of 36 months' imprisonment asagainst the 43 months imposed in the District Court.11[9] However, having accepted that the starting point was too high, the Judge turnedto consider the 25 per cent discount given for Mr Rawiri's guilty pleas in theDistrict Court. Citing the Supreme Court's judgment in Hessell v R, his Honourobserved:12[13] Maximum credit for a guilty plea is ordinarily reserved for thesituation when a defendant pleads guilty at the first reasonable opportunity.Even then, other factors, such as the strength of the prosecution case, andwhether a defendant has benefitted from a plea arrangement, are relevant.Mr Rawiri pleaded guilty to all charges [on] 8 April 2022, and in consequenceof a plea arrangement. Mr Young [for Mr Rawiri] contends the Judge wasright to give full credit because the relationship between Mr Rawiri and hisprevious lawyer broke down, and there were delays because of the pandemic.[14] Full credit was benevolent notwithstanding these factors. The guiltypleas were not early, and Mr Rawiri benefitted from a plea arrangement.Discount of 15 percent would be orthodox. Applying this to the adjustedstarting point with the 10 percent for personal mitigating features produces aterm of 27 months' imprisonment, the same sentence as that imposed.(Footnote omitted.)[10] Downs J declined to give a youth discount noting that it would be offset byMr Rawiri's extensive criminal history both in the adult jurisdiction and theYouth Court. He was also not persuaded that the 24-month driving disqualificationwas too long, noting that the relevant offending was serious.13[11] It followed that the Judge determined the sentence was not manifestlyexcessive and the appeal was dismissed.1410 Comprising four months for the breaches of intensive supervision, three months for the breach ofcommunity work, and three months for the driving-related charges.11 High Court judgment, above n 2, at [12].12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.13 High Court judgment, above n 2, at [15]–[16].14 At [17]–[18].Second appeal[12] This Court granted leave for two reasons. First, it was arguable that a fulldiscount for guilty pleas, or something approaching a full discount, was available toMr Rawiri as a result of COVID-related delays which adversely affected the timelyand orderly progress of the charges, complicated communication with counsel and ledto significant delays in the prosecution providing disclosure. None of these factorswas within Mr Rawiri's control, as implicitly acknowledged by the respondent whensupporting the full discount.15[13] Secondly, the Court considered a separate ground of appeal which was notraised by counsel in either the District Court or the High Court. Mr Rawiri was givenno discount in recognition of the approximately 10 months he spent on electronicallymonitored bail (EM bail). It would appear that as a result of incorrect advice given bythe Department of Corrections (Corrections) about the length of the final sentence, itwas wrongly assumed by counsel that the time spent on EM bail had been taken intoaccount. The error was apparently noticed only when Mr Rawiri made enquiries intohis eligibility for parole after the High Court appeal.16Discussion[14] The central issue on this appeal is whether the end sentence of 27 months'imprisonment was manifestly excessive. Mr Young, for Mr Rawiri, submitted it wasand that a sentence below 24 months would have been appropriate. We turn toconsider each of the grounds of appeal against that backdrop.Was the High Court correct to determine that a 15 per cent discount was appropriatefor the guilty pleas?[15] It was common ground on this appeal that the global starting point of36 months' imprisonment adopted by Downs J was appropriate. Mr Rawiri wassentenced on 13 charges for relatively serious offending. The Arms Act 1983 chargeswere the most serious; discharging a firearm in the victim's bedroom when others,15 Leave judgment, above n 3, at [22].16 At [23].including four adults and three children, were in the house17 and then, just a little overa week later, threatening to shoot the victim if she did not hand over her daughter.Although Mr Rawiri did not have a firearm with him at the time, some days laterthe police found a shotgun and two rounds of ammunition at the house. We alsoconsider it a significantly aggravating factor that at the time of this offendingMr Rawiri was both on bail and subject to a sentence of intensive supervision.The driving charges, especially the June 2021 series, were also moderately serious inthat after taking the car, he drove at high speed to avoid police, weaving in and out oftraffic and crossing the centre line multiple times, necessarily putting other road usersin danger. He stopped only after road spikes were deployed and, even then, attemptedto flee on foot.[16] We also agree with the Judge's reasoning for not allowing the full 25 per centdiscount for guilty pleas, notwithstanding the Crown's apparent concession that it wasavailable. The timing of a guilty plea is but one factor to be considered in theassessment of the appropriate discount. It is not determinative. As the Supreme Courtobserved in Hessell, the value to be attributed to a guilty plea is to be assessed havingregard to all the circumstances of the case, rather than by reference to a prescriptivescale of discounts that depend on when the plea was entered.18 Other non-exhaustiveconsiderations include the scale and complexity of the trial which was avoided, thejustification for any delay, the inevitability (or otherwise) of conviction and, relatedly,the genuineness of the defendant's acceptance of responsibility, whether the pleasfollow charge and plea negotiations and the benefits to victims and witnesses of notbeing required to give evidence.19 A fact-specific evaluative exercise is required.[17] Mr Young submitted that the consequences of COVID-related interruptionseffectively conspired to frustrate Mr Rawiri's ability to enter guilty pleas in a moretimely way. For example, just a month or so after the last traffic offending, inSeptember 2021, he applied for a sentence indication but this was administratively17 The summary of facts records that the weapon was a sawn-off, double-barrelled shotgun. The shotwas fired when the appellant was alone in the bedroom. After the shot was fired, he immediatelyleft the room to assure other occupants of the house it was accidental. He suggested to thepre-sentence report writer that the shot was fired with the intention of killing himself.18 Hessell v R, above n 11, at [51].19 At [45], [61]–[62] and [65].adjourned to a date in November 2021 due to the pandemic. The November fixture,too, was vacated for the same reason. Ultimately no sentence indication was given.There were other administrative adjournments as well as remote appearances via AVL.On 8 February 2022, Mr Rawiri advised he wished to resolve all charges other thanthe threatening to kill charge, which was the subject of further discussions betweenthe parties resulting in an amended summary of facts on 19 April 2022.20 Mr Rawiripleaded guilty to all other charges on 8 April 2022.[18] There was some discussion about when full disclosure was complete.The significance of disclosure reflects the right of a defendant to be informed bycounsel of the implications of pleading guilty, the submission being that until fulldisclosure is made, counsel is not in a position to properly undertake that function.However, as this Court observed in Hessell v R, a defendant who does not enter anearly guilty plea is entitled to wait until disclosure is complete but may, in doing so,lose some of the advantages of an early plea.21 Again, the relevant analysis will befact-specific.[19] In our view, it is unnecessary to determine when full disclosure on all chargeswas complete. On the facts of this case, it seems most unlikely that full disclosurewould have materially changed the essential factual basis on which pleas would beentered. According to Mr Young, full disclosure was received in respect of theArms Act and family violence charges in September 2021. The evidence supportingthose charges came from the victim and others in the house at the relevant times.Another five months passed before Mr Rawiri intimated that guilty pleas would beentered. The delay is unexplained. The assertion that COVID-19 precluded earlierresolution does not withstand close scrutiny. For example, it was in September 2021that Mr Rawiri had his EM bail hearing. Notably, at that time Auckland was at AlertLevel 4. As appears to be the case with Mr Rawiri, hearings were being conductedremotely including some substantive matters. In December 2021 the country movedto the traffic light settings. It was not until February that Mr Rawiri indicated anintention to plead. That was certainly not at the earliest practical opportunity.20 We were advised that the amendment of the summary of facts was to delete reference to Mr Rawiribeing in possession of a firearm at the time. It appears the amendment was consistent with thewitnesses' formal written statements.21 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [32].[20] The extent of disclosure around the driving charge series is less clear.Ms Wynne, for the Crown, attached to her written submissions the police record ofdisclosure. This indicates that full disclosure on the driving series was given inAugust 2021. She noted that if there was any dispute which the Court consideredmaterial, leave would be sought to admit an affidavit from the police. We do notconsider that course necessary. The evidence supporting both sets of driving chargescame from the police officers who were involved in those events and their accountswould be unlikely to materially influence counsel's task of advising Mr Rawiri on theadvantages and disadvantages of pleading guilty.[21] As for the other circumstances affecting the guilty plea discount, we aresatisfied that Downs J explicitly took the relevant factors into account. While it mayhave been open to give a slightly more generous discount, it cannot be said thathe erred. The 15 per cent discount was within the available discount range for guiltypleas in all the circumstances of this case.Should a discount be given for time spent on EM bail?[22] It is common ground that despite counsel at sentencing (who was notMr Young) seeking a discount for time spent on EM bail in written submissions, theissue was not pursued in the District Court. It appears that counsel was under themistaken impression that any such discount would be calculated by Corrections.The mistake was not realised until after Downs J delivered his judgment.[23] On its face, this oversight would amount to an error in terms of s 256(2) ofthe CPA. However, that is not the end of the enquiry. This Court is still required todetermine whether a different sentence should be imposed; here whether time spenton EM bail is deserving of a discrete discount and whether it would change thesentence imposed. That is the question to which we next turn.[24] Time spent on EM bail is a mandatory mitigating factor in terms of s 9(2)(h)of the Sentencing Act 2002. Mr Rawiri was arrested on the index offending on30 July 2021. He remained in custody for approximately six weeks before beingreleased on EM bail. He spent approximately 10 months on EM bail before enteringhis pleas of guilty.[25] Discounts for time spent on EM bail are matters of judicial discretion havingregard to all the circumstances.22 Time spent on EM bail is not equivalent topre-sentence custodial remand.23 There is no arithmetical formula capable of universalapplication.24 Mr Young submitted that Mr Rawiri's time on EM bail was"without incident". Ms Wynne refuted that. She pointed to the pre-sentence report,which notes three instances of non-compliance although no charges for breach werebrought:(a) 7 November 2021: Mr Rawiri's tracker allegedly shut down. He wasarrested on 9 November 2021 and re-admitted to EM bail on10 November 2021.(b) 10 November 2021: Mr Rawiri was not home when officers attendedto reconnect his monitoring equipment.(c) 26 December 2021: Mr Rawiri left his address without permission.He was reported to have attributed this to attending hospital with hispartner who was in labour.[26] Mr Young's submission was that Corrections must have accepted Mr Rawiri'sexplanations for non-compliance otherwise he would have been charged withbreaching his bail conditions. In the absence of evidence on the point, it is difficultfor the Court to make a considered assessment of Mr Rawiri's bail compliance,although three incidents of non-compliance across two months does suggestMr Young's reference to "without incident" is overstated. In any event, we agree withMs Wynne that if Mr Rawiri was to receive a discount for the 10 months he spent onEM bail, it would likely have been in the range of two to four months.25 We also agreethat it would have been open to the Judge to give uplifts for Mr Rawiri's previousrelevant criminal history and his offending while on bail and subject to a sentence.2622 Chea v R [2016] NZCA 207 at [110].23 Parata v R [2017] NZCA 48 at [10]–[14].24 A (CA90/2017) v R [2017] NZCA 278 at [90].25 Agar v R [2021] NZCA 350 at [49]; and Parata v R, above n 22, at [15].26 Sentencing Act 2002, s 9(1)(c) and (j).[27] Despite Mr Rawiri being 24 at the time of the offending, he has an extensivecriminal history in both the District Court and the Youth Court. For example, there isviolence and driving related offending in November 2020, including aggravatedassault, threatening to kill and two convictions for presenting a firearm (for which hewas sentenced to one year and six months' intensive supervision). There areconvictions in June 2020 for serious driving offending and assault with intent to injure(for which he was disqualified from driving and sentenced an effective term offive months' imprisonment) and before that, convictions in May 2019 and July 2017for breaching release conditions. The combination of these, together with the fact thatthe index offending was committed while Mr Rawiri was on bail and subject tosentence, might well have justified an uplift which would have subsumed anyrelatively modest discount for time spent on EM bail.[28] For these reasons, we are satisfied that even though Mr Rawiri may have beeneligible for a discount for time spent on EM bail, a different sentence should not beimposed.[29] Furthermore, standing back and reviewing the sentence in its totality, it isdifficult to see how an end sentence of 27 months' imprisonment could be describedas manifestly excessive having regard to the nature and number of charges, theirseriousness, and the temporal spread of the offending across several separate incidents.[30] It follows that we are satisfied that the sentence imposed was not manifestlyexcessive.Result[31] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent