RAWIRI v R [2023] NZCA 104

RAWIRI v R [2023] NZCA 104 [12 April 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA708/2022[2023] NZCA 104BETWEEN DANIEL RAWIRIAppellantAND THE KINGRespondentCourt: French, Dunningham and Cull JJCounsel: A Y H Young for AppellantN J Wynne for RespondentJudgment:(On the papers)12 April 2023 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is to be allocated an urgent oral hearing before a divisional courtin Wellington on 1 May 2023.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Rawiri was convicted in the District Court of three charges of breaching asentence of intensive supervision as well as several driving and firearm offences. Hewas sentenced to a term of imprisonment of 27 months.11 New Zealand Police v Daniel Rawiri [2022] NZDC 12444.[2] He now seeks leave to appeal his sentence. Leave is required because theproposed appeal would be a second appeal, Mr Rawiri having already unsuccessfullyappealed to the High Court.2[3] In a minute dated 3 February 2023, Collins J directed that the issue of leaveshould be determined separately from the proposed substantive leave and on thepapers.[4] The Crown opposes the application for leave.Background[5] 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. He breached the sentence of intensive supervision between January 2021and March 2021 by failing to report on two separate occasions and by changingaddresses without prior approval.[6] On 9 June 2021 Mr Rawiri was involved in a police chase after failing to stopwhile driving a stolen car. He weaved in and out of traffic and drove on the wrongside of the road. He was charged with various offences arising out of this incident andwas granted bail.[7] While on bail, he committed further offending.[8] First on 15 July 2021, he discharged a sawn-off shotgun into the floor of abedroom at his partner's house. There were children present elsewhere in the house.Mr Rawiri was the only one in the bedroom and told other occupants that it was anaccident.[9] Then on 19 July 2021 he was found as a passenger in another stolen car whichalso failed to stop when required by police. Mr Rawiri was aware he should not havebeen there.2 Rawiri v Police [2022] NZHC 2466.[10] A week later, he arrived at his partner's home and told her to pack her babydaughter's belongings as he considered the house wasn't safe for the baby and hewanted to take her away with him. When the partner refused and other familymembers began to protest, Mr Rawiri threatened to kill them all. He also threatenedto shoot his partner. At the time he made these threats, he did not have the shotgunwith him. Subsequently, the police visited the home and found the shotgun and tworounds of ammunition.[11] In total there were 11 charges arising out of these events as usefullysummarised in the High Court decision in the following table: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[12] Mr Rawiri pleaded guilty to all charges on 8 April 2022 and was sentenced on30 June 2022 by Judge Field.District Court sentencing[13] At sentencing, Judge Field adopted a global starting point of 43 months'imprisonment (three years and seven months) calculated on the following basis:(a) four months' imprisonment for the breaches of intensive supervision torun concurrently with three months for breach of community work;(b) three months' imprisonment for the offending on 9 June 2021;(c) three months' imprisonment on the charge of unlawfully getting into amotor vehicle;(d) 18 months' for the reckless discharge of the firearm;(e) six months' on the threatening to kill charge; and(f) nine months' imprisonment for possession of the gun and theammunition.[14] The Judge then adjusted that starting point downwards by allowing a discountof 25 per cent for the guilty pleas and a further discount of "a little over" 10 per centfor mitigating factors identified in a cultural report, arriving at an end sentence of27 months. He also disqualified Mr Rawiri from driving for two years.The High Court appeal[15] On appeal, Downs J held the District Court's global starting point of three yearsand seven months' imprisonment was too high. Having regard to comparator cases inrelation to the firearms offending3 and taking account of the fact that the breaches ofthe Court orders occurred at around the same time, Downs J considered a moreappropriate starting point was three years' imprisonment.[16] Despite this, he was not however persuaded that the end sentence wasmanifestly excessive.[17] That was because in his view the District Court Judge had been overlygenerous in giving Mr Rawiri the maximum credit available for the guilty plea.Downs J noted that the full credit of 25 per cent is usually reserved for a defendant3 R v Taikato [2018] NZHC 77 and Blair v Police HC Dunedin CRI-2010-412-10, 13 May 2010.who pleads guilty at the earliest possible opportunity and even then other factors suchas the strength of the Crown case and whether the defendant has benefited from anyplea arrangement are taken into account. In the circumstances of Mr Rawiri's case,the Judge considered that the orthodox credit would have been only 15 per cent. Hadthat been applied, the end sentence would have been the same.[18] In coming to this conclusion, Downs J also rejected an argument that a discountshould have been allowed on account of Mr Rawiri's age (24 years at the time of theoffending) noting that any discount for youth would be offset by Mr Rawiri's extensivecriminal history.[19] The appeal was accordingly dismissed.The application for leave to appeal to this Court[20] The test for obtaining leave to bring a second appeal is a high one. We arehowever persuaded that it has been met in this case on the basis that a miscarriage ofjustice may have occurred.4[21] We say that for two reasons.[22] First it is arguable that, contrary to the finding in the High Court, a full discountfor the guilty plea or something approaching a full discount was available toMr Rawiri, despite the long delay between the charges being laid and his guilty plea.We say that because it appears the proceeding was significantly disrupted by the Covidpandemic. There were various adjournments, difficulties in counsel being able tocommunicate with Mr Rawiri and significant delays in the prosecution providingdisclosure. As Mr Rawiri's counsel Mr Young points out, those factors were beyondthe control of Mr Rawiri and this was implicitly acknowledged by the respondent inboth the District Court and the High Court when it supported a full discount.4 Contrary to a submission made on behalf of Mr Rawiri, we do not accept that the proposed appealraises any issue of general or public importance, that being the other ground on which leave maybe granted.[23] The second reason is that Mr Rawiri was never given any discount for theapproximately 10 months he spent on electronically monitored bail (EM bail) withoutincident. This was never raised by counsel in either the District Court or High Court.Unfortunately, it was wrongly assumed that the time spent on EM bail had been takeninto account. This assumption was a result of advice given by the Department ofCorrections about the length of the final sentence. It was only realised that this wasnot the case when Mr Rawiri made inquiries about his eligibility for parole after theHigh Court appeal.[24] Raising an issue for the first time on appeal, especially a second appeal, isproblematic and seldom allowed. However, it is not automatically fatal to the grantingof leave. Given that in this case it concerns an objectively verifiable fact and anoversight by someone other than the applicant himself, we consider it should not be abarrier to leave. The overriding test must always be the interests of justice.[25] The Crown does not take issue with the High Court's reduced starting point ofthree years' imprisonment. The reduced starting point when combined with a25 per cent or close to 25 per cent discount for the guilty plea and a discount forEM bail means there is in our view an argument worthy of ventilation on appeal thatthe end sentence was manifestly excessive.[26] We have therefore decided to grant leave to appeal.Outcome[27] The application for leave to appeal is granted.[28] The appeal is to be allocated an urgent oral hearing before a divisional court inWellington on 1 May 2023.Solicitors:Crown Law Office, Wellington for Respondent