ROBERTS-TUAHURU v NEW ZEALAND POLICE [2019] NZHC 1444

ROBERTS-TUAHURU v NEW ZEALAND POLICE [2019] NZHC 1444 [24 June 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2018-419-0028[2019] NZHC 1444BETWEEN HARRY ANDREW ROBERTS-TUAHURUAppellantAND NEW ZEALAND POLICERespondentHearing: 24 June 2019Appearances: J E Tarrant for the appellantS F Gilbert for the respondentJudgment: 24 June 2019ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:J E Tarrant, Barrister, HamiltonAlmao Douch, Hamilton[1] At a judge-alone trial in the Morrinsville District Court on 1 October 2018,Judge MLSF Burnett found Mr Roberts-Tuahuru guilty of dangerous driving,1 recklessdriving,2 two charges of common assault,3 and two charges of assault with a weapon.4The Judge delivered her reasons on 15 October 2018.5[2] On 21 March 2019, Judge Burnett sentenced Mr Roberts-Tuahuru to two yearsand six months' imprisonment on those charges, together with two further charges foroffending on bail – common assault, and breaching bail – to which he had pleadedguilty.6 Mr Roberts-Tuahuru was disqualified from driving for two years and orderedto pay $891 in reparation.[3] Mr Roberts-Tuahuru now appeals against both conviction and sentence.Background[4] The principal charges arose from a serious incident of so-called 'road rage'.Mr Roberts-Tuahuru's response to being overtaken by a Mercedes travelling in excessof the 100 kilometre per hour speed limit was to re-overtake it at 130-140 kilometresan hour, swerving from side to side of the road including in the gravel at its edge. Thisgave rise to a charge of dangerous driving.[5] In the face of oncoming traffic, Mr Roberts-Tuahuru continued to overtake aHonda, the driver of which had to brake to avoid collision, and signalled hisdisapproval by sounding the car's horn and flashing its lights. Mr Roberts-Tuahuruthen slewed to a halt in the middle of the lane, forcing the Honda to a stop behind him,and walked back to it, gesturing and yelling at its occupants. This gave rise to twocharges of assault and one charge of reckless driving.[6] At a break in oncoming traffic, the Honda drove around Mr Roberts-Tuahuru.He got back in his vehicle, and pursued it. On catching up, now in a 70 kilometre per1 Land Transport Act 1988, s 35(1)(b). The maximum penalty is three months' imprisonment or a$4500 fine.2 Section 35(1)(a). The maximum penalty is three months' imprisonment or a $4500 fine.3 Crimes Act 1961, s 196. The maximum penalty is imprisonment of one year.4 Section 202C. The maximum penalty is five years' imprisonment.5 Police v Roberts-Tuahuru [2018] NZDC 23315.6 Police v Roberts-Tuahuru [2019] NZDC 5173.hour zone approaching Morrinsville, he pulled alongside and seemingly deliberately"rammed" the Honda, at least twice and sufficiently to put it into the road's vergealongside a deep ditch. This gave rise to the two charges of assault with a weapon.Conviction appeal—grounds of appeal[7] Mr Roberts-Tuahuru says the Judge erred in:(a) finding beyond reasonable doubt two charges of common assault hadbeen committed; and(b) refusing to allow his counsel to make submissions on the law at theconclusion of the judge-alone trial.His other grounds of appeal – that the Judge erred in finding beyond reasonable doubtthe appellant drove recklessly; and in finding two charges of assault with a weaponwere appropriate in circumstances where one charge would have sufficed – are notpursued.—approach on appeal[8] As to the remaining grounds, if I am satisfied either of these errors are madeout, and there is a "real risk" the outcome of the trial was affected – "a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong" – or trial was unfair or a nullity, I must allow the appeal.7Otherwise I must dismiss it.8[9] I am to make my own assessment of the facts, independently of those found bythe Judge (with appropriate deference for her advantage in seeing and hearingwitnesses give evidence).9 But this is a review function: that I might disagree with the7 Criminal Procedure Act 2011, s 232(2); Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27],adopting Tipping J's formulation in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110],and [37].8 Section 232(3).9 Austin Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].Judge's factual assessment is not enough – "[s]omething more is required to meet the'real risk' test".10[10] Last, Mr Roberts-Tuahuru must persuade me a miscarriage of justiceoccurred.11Discussion—common assault[11] Mr Roberts-Tuahuru's counsel, Jessica Tarrant, says, at best, as to the commonassaults, all that was established was his intimidatory behaviour, not the required threatto apply force to another person.[12] Under s 2 of the Crimes Act 1961, assault is: the act of intentionally applying or attempting to apply force to the personof another, directly or indirectly, or threatening by any act or gesture to applysuch force to the person of another, if the person making the threat has, orcauses the other to believe on reasonable grounds that he or she has, presentability to effect his or her purposeWhere an assault is based upon a threat, the making of the threat must be bothintentional and directed to a person as distinct from mere property.12[13] Mr Roberts-Tuahuru stopped his vehicle in the middle of a busy highway, withtraffic passing in a 100 kilometre per hour zone, blocking the Honda from continuingin its lane, and gestured for the occupants of the Honda to get out of their vehicletowards him, while shouting aggressively at them. The driver of the Hondaapprehended "someone wanting a rumble", inviting confrontation, and anticipatedphysical contact if he got out. The driver of the Mercedes, having stopped 50 metresfurther back, expected "some sort of confrontation". The admitted intimidatorybehaviour caused the Honda's driver to believe on reasonable grounds he would beassaulted by Mr Roberts-Tuahuru.10 Sena v Police [2018] NZCA 203 at [9].11 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].12 Lazarus v Police (1997) 15 CRNZ 127 (HC) at 129.[14] Given those facts, the Judge did not err.—closing submissions[15] In judge-alone trials, s 105(4) of the Criminal Procedure Act 2011 prohibitssubmissions on the facts or addresses on the evidence, "[u]nless the court directsotherwise" (except for the defence to argue at the close of the prosecution's case thecharges should be dismissed).13 The Judge is said to have refused submissions, unlessMr Roberts-Tuahuru intended to plead guilty (which he would accept only of thedangerous driving charge). Ms Tarrant, who was not trial counsel, says that shows theJudge's predetermined view of her client's guilt, and thus his unfair trial.[16] It is open to a Judge, sitting alone, to consider s/he would not be assisted byclosing submissions or addresses. While the better course may be at least to allow suchas may have been prospectively helpful, the absence of opportunity alone does notconstitute a miscarriage of justice.14 Not every departure from good practice renders atrial unfair: the departure must be "so gross, so persistent, or so prejudicial, or soirremediable" as to establish the qualifying unfairness.15[17] Here, Ms Tarrant says trial counsel would have made the submissions she hasmade before me. Given my dismissal of them as not establishing any error on the partof the Judge, there has been no miscarriage of justice.Sentence appeal[18] After conviction on 1 October 2018, Mr Roberts-Tuahuru was released on bailfor sentencing. On 4 October 2018, after becoming agitated while drinking with familymembers, he assaulted his 14-year-old son by throwing him into the front passengerseat and punching him in the face with a closed fist, after the boy refused to join himin the vehicle. He initially was charged with assault with intent to injure,16 but the13 Criminal Procedure Act 2011, s 105(5).14 R v Alexander CA444/99, 2 February 2000 at [24]-[25].15 Condon v R [2006] NZSC 62, [2007] 1 NZLR 400 at [78].16 Crimes Act 1961, s 193.charge was amended to one of common assault. The son denies any assault took place.He also was charged on 30 November 2018 with failing to answer District Court bail.17[19] In arriving at two years and four months' imprisonment, the Judge:(a) adopted starting points of 24 months for the charges of reckless driving,dangerous driving, assault and assault with a weapon, and five monthsfor the assault charge, reduced to four months on Mr Roberts-Tuahuru'sguilty plea to that charge, to be imposed cumulatively; and(b) imposed a sentence of seven days imprisonment on the charge of failingto answer bail, to be served concurrently.[20] Ms Tarrant says the end sentence of two years and four months' imprisonmentwas manifestly excessive, having regard to comparable case law. No specific error ispointed to, but she suggests a starting point of 14-15 months' imprisonmentappropriately reflects the offending of 23 September 2018. She takes no issue with thesentence imposed on the common assault charge. In other words, she says the endsentence should have been 18 or 19 months' imprisonment, rather than 28 months.—approach to appeals against sentence[21] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.18 In any other case, I mustdismiss the appeal.19 The approach previously taken by courts on sentencing appealscontinues to apply;20 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentence appeals.21 I willnot intervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than by the process by which it is reached.2217 Bail Act 2000, s 38(a)18 Criminal Procedure Act 2011, s 250(2).19 Section 250(3).20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].21 At [33] and [35].22 Ripia v R [2011] NZCA 101 at [15].—discussion[22] I have had regard for the cases relied on by counsel.23 I note Manuel'sendorsement of Waa's 18-month end-point, albeit the vehicular assaults also wereaggravated by being against police, and coming as part of other offending.Comparatively, on the sole charge of assault with a car as the weapon in Hinton vPolice, a starting point of 12 months' imprisonment was considered to fall "squarelywithin the available range".24[23] In light of Mr Roberts-Tuahuru's multiple charges on the earlier offending – aseries of separate offences over a prolonged period of time, of deliberate andunjustified recklessness and hostility, endangering a broad range of the travellingpublic beyond his specific victims – a starting point of 14-15 months' imprisonmentthus would have been far too low.[24] While not directed against police, he twice rammed the car of wholly unknownoccupants, who had done nothing more than to signal their disapproval of his very baddriving, and only missed a third hit because it had gone off the road. It cannot be saidhe was provoked; his driving had been the cause of the incidents. The range of peopleput at risk by his prolonged conduct, including his own son as passenger in the car,also is aggravating. His culpability for the balance of that offending could easily uplift18 months on the vehicular assault by one-third to 24 months, particularly whenviewed in the context of a five-year maximum. There is no objection to the additionalfour months for the later assault on his son. The end sentence is not at all manifestlyunjust.Result[25] Mr Roberts-Tuahuru's appeals against convictions and sentence are dismissed.—Jagose J23 Waenga v R [2018] NZHC 865 (23 months, for endangering transport and reckless driving, invehicular suicide attempt); Manuel v Police [2014] NZHC 2648 (30 months, including 18 monthsfor assault with a weapon); and Waa v Police HC Wellington CRI-2004-435-2, 18 May 2004 (38months, including 18 months for assault with a weapon).24 Hinton v Police [2015] NZHC 560 at [31].