REWI v POLICE [2016] NZHC 2928

REWI v POLICE [2016] NZHC 2928 [5 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000330/331[2016] NZHC 2928BETWEEN DILLON REWIAppellantAND NEW ZEALAND POLICERespondentHearing: 5 December 2016Counsel: N G Cooke for AppellantH D Benson-Pope for RespondentJudgment: 5 December 2016ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:N Cooke, Auckland.Kayes Fletcher Walker, Manukau.[1] On 2 September 2016 Judge Bergseng sentenced the appellant to a term of 21months' imprisonment in relation to eight charges: two of driving while disqualified;dangerous driving; failing to stop; refusing to provide a blood sample; giving thePolice false particulars; possessing methamphetamine; and finally, breaching releaseconditions.1 The appellant contends the sentence is manifestly excessive and oughtnot to have been any longer than 18 months' imprisonment.Background[2] The offending comprised two incidents.[3] On 19 April 2016, the appellant was driving in Otara. He was stopped by thePolice. The appellant admitted he was a disqualified driver. He was charged withdriving while disqualified, being a third or subsequent offence. The appellant wasreleased on bail. Nothing about his driving on this occasion—but for the fact he wasdriving while disqualified—was remarkable.[4] That is not true of events of 9 July 2016. The appellant was driving, again inOtara. He was stopped by the Police. The appellant gave his name as aMr Jack Anderson. He drove away before the Police could ask for furtherinformation. They gave pursuit. The appellant failed to stop. He drove at highspeeds for approximately three kilometres. He crossed the centre line on more thanone occasion. He eventually stopped the car and ran away. The appellant was foundin the laundry or wash-house of a nearby home. Found with him was 0.9 grams ofmethamphetamine. The appellant appeared to have recently consumed alcohol. Herefused to carry out a breath screening test or permit a blood sample to be taken.Sentencing below[5] The Judge noted the pre-sentence report recommended a term ofimprisonment. The Judge also noted the appellant's responses to earlier community- based sentences had been poor. His Honour was mindful of the appellant's 14previous convictions for Land Transport Act offences and troubled that there was little sign of abatement.1 Police v Rewi [2016] NZDC 17217.[6] The Judge adopted a starting point of 14 months' imprisonment in relation tothe charge of refusing a blood specimen. His Honour uplifted that starting point by six months for the other July offences, by four months for the April offending, andby four months for the appellant's criminal history. The Judge afforded the appellanta 25 percent discount for his guilty pleas, resulting in a sentence of 21 months'imprisonment.[7] The Judge was anxious of risk:2The sad reality for you Mr Rewi is, you are either going to kill someone, or kill yourself, and if you continue to offend in this way, the only responsible outcome, as far as the Court and society is going to be concerned, is to putyou away out of circulation for periods that become longer and longer. Thesentence I have imposed is the least that in my view I can responsiblyimpose. So, you know from this point on it is only going to get longer.Appellant's case[8] For the appellant, Mr Cooke responsibly accepts a term of imprisonment wasrequired, but submits the term is manifestly excessive and ought not to have beenlonger than 18 months' imprisonment. Mr Cooke referred to what he described as an"unusual jump" in terms of severity from the previous sentences imposed upon theappellant in relation to Land Transport Act offending. He invited attention to whathe described as a breach of the totality principle, submitting even if the individualcomponents of the sentence were justifiable, the overall result was not.Analysis[9] A number of cases were cited in argument. It is sufficient to refer to two:Muhinda v Police,3 and Paparoa v Police.4[10] In Muhinda the defendant was sentenced to a term of two years'imprisonment in relation to two charges of driving while disqualified, refusing tosupply a blood specimen, wilful damage, common assault and careless driving. Ashere, some of the offending was committed while on bail. On appeal, Dunningham J2 Police v Rewi, above n 1, at [18].3 Muhinda v Police [2015] NZHC 2024.4 Paparoa v Police HC Auckland CRI-2009-404-000189, 18 August 2009.considered the individual components of the sentence were justifiable, but that the Judge at first instance had erred in failing to apply the totality principle. The Judge reduced the sentence by three months, to 21 months' imprisonment.[11] In Paparoa the defendant also received a term of two years' imprisonment.That case involved two charges of driving while disqualified, failing to stop, refusingto provide a blood specimen, an assault on Police, provision of false information tothe Police, and breach of home detention. The offending was spread across threeincidents. Some of it occurred while the defendant was on bail. Wylie J concludedthe two-year term was available but "stern". His Honour found there had beeninsufficient credit for the defendant's guilty pleas. He reduced the term to 18months' imprisonment to reflect that.[12] I refer to one case not cited in argument. In Kahukura v Police the defendantwas convicted of driving while disqualified, dangerous driving, failing to stop,driving with excess breath alcohol causing injury, and refusing a blood specimen.5The sentencing Judge adopted a starting point of 15 months' imprisonment, whichwas uplifted by six months, and discounted by 25 percent to arrive at a final sentenceof 16 months' imprisonment. An appeal to this Court was dismissed.[13] These cases reveal substantial terms of imprisonment may be imposed on adefendant who commits a cluster of Land Transport Act offences over two or moreincidents, at least when there is repeated driving while disqualified offending andoffending on bail.[14] This case has similarities to Muhinda and Paparoa, both in terms of its natureand its seriousness. As will be recalled, those cases involved substituted terms of 21and 18 months' imprisonment respectively. So, in terms of authority, the sentence isnot obviously manifestly excessive.[15] There are two answers to Mr Cooke's submission the sentence represents asharp escalation in penalty. The first is this offending is more serious. The second is5 Kahukura v Police [2014] NZHC 3254.the appellant continues to offend, and so a much more serious sentence was to be expected.[16] Mr Cooke submitted that the appellant is not in the category of extremeoffenders. I agree. However, that does not address the nature of his driving or therisk of harm to others on this occasion.[17] As to totality, I accept the Judge failed to expressly have regard to thisconsideration. However, the Judge was plainly mindful of the need for publicprotection. That is an important consideration protected by s 7(1)(g) of theSentencing Act 2002, and a sentencing principle of long pedigree.6[18] Standing back, I am not persuaded the Judge's failure to have explicit regardto totality, or to the level of sentence more generally, constitutes reversible error.The Judge below was plainly troubled by what he saw as the appreciable dangerposed to the public by the appellant. That view was available. Indeed, the appellantwas only released from prison on 17 March 2016. This offending occurred shortlythereafter.[19] The case also has a number of troubling features. They include offendingwhile on bail, dangerous driving, the likely involvement of alcohol, failure to stop,and the provision of false information—all against the background of a poor LandTransport Act record. In my view the sentence, while severe, was not manifestlyexcessive.[20] There was argument before me as to whether a reduction of three months in this context would constitute tinkering. Reasonable minds could disagree on thatparticular proposition. I have found it more useful to inquire whether, overall, thesentence was manifestly excessive having regard to its facts and to the cases I havediscussed. As I have said, with reference to them it is stern but not manifestlyexcessive.6 R v Ward [1976] 1 NZLR 588.[21] The appeal is dismissed...Downs J