TAWA v NEW ZEALAND POLICE [2016] NZHC 278

TAWA v NEW ZEALAND POLICE [2016] NZHC 278 [25 February 2016]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI 2015-454-40[2016] NZHC 278BETWEEN LUKE JOSEPH HEMI TAWAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2016Appearances: T C Thackery for the AppellantM J Blashke for the RespondentJudgment: 25 February 2016JUDGMENT OF MALLON JIntroduction[1] Mr Tawa was sentenced in the District Court to 10 months imprisonment for a spate of offending that occurred between March and October 2015. He appeals against his sentence on the ground that it is manifestly excessive.The offending[2] On 11 March, 24 May and 26 August 2015 Mr Tawa entered a supermarket, placed shopping items in a bag and attempted to leave without paying. On each occasion he was apprehended as he was attempting to leave. On the first occasion the value of the items was a little over $500 and on the other two occasions it was less than $500. For this offending he was charged with theft.1[3] Mr Tawa had been granted police bail after the second theft. On 9 June 2015 he failed to appear at the District Court as his bail bond specified. He was charged1 One charge of theft ($500 to $1,000) under ss 229 and 223(a) of the Crimes Act 1961 (maximum penalty one year imprisonment); and two charges of theft (under $500) under ss 219 and 223(b) of the Crimes Act (maximum penalty three months imprisonment).with failing to appear.2 He was arrested on 26 June 2015 and again remanded on bail.[4] On 9 September 2015 he got into an argument with his sister. He pushed her into a wall, punched her in the back of the head and kicked her on the thigh. She suffered tenderness to her head and thigh and a scratch on her hand. She felt stressed and upset by what occurred and it made her feel unsafe in her own home. For this offending Mr Tawa was charged with common assault.3[5] On 5 October 2015 Mr Tawa was driving in a residential street with a 50 km speed limit. At this time his licence was suspended. The police attempted to stophim for a routine traffic stop by activating the patrol car's red and blue flashing lightsand siren. Mr Tawa did not stop and instead drove away at a speed well in excess of 50 km per hour. He maintained an excessive speed as he made turns into two other streets. He failed to stay in his lane as he negotiated each turn. He stopped in the middle of the third street and ran off. He was not located by the police that day. He was subsequently apprehended and charged with dangerous driving4, failing to stop,5and driving while his licence was suspended.6Personal circumstances[6] Mr Tawa is 28 years old. He was unemployed at the time of his offending. His drug use has been a concern but he reported to the pre-sentence report writer recent abstinence and motivation to maintain that abstinence. He also expressed remorse. He was considered suitable for home detention but could not provide a suitable address.[7] Mr Tawa has a lengthy list of previous convictions. It is mainly for dishonesty offending, and includes a number of shoplifting offences. He also has convictions for breach of court orders, including a failure to answer court bail in 2014. He also has three convictions for common assault but they are more dated2 Bail Act 2000, s 24 (maximum penalty three months imprisonment or $1,000 fine).3 Summary Offences Act 1981, s 9 (maximum penalty six months imprisonment or $4,000 fine).4 Land Transport Act 1998, s 35(1)(b) (maximum penalty three months imprisonment or $4,500 fine).5 Land Transport Act, s 52(1)(c) and (2) (maximum penalty $10,000 fine).6 Land Transport Act, s 32 (maximum penalty three months imprisonment or $4,500 fine).(two of them were in 2010 and the third was in 2008). He has served a number of short term imprisonment sentences.District Court sentencing[8] The District Court Judge approached the sentencing in this way:[9] In terms of appropriate sentencing, I regard two months on the shoplifting charges, the failing to answer bail, one month for the dangerous driving, two weeks for the driving while suspended, but concurrent, one month for the assault. That gets me to 10 months. Two months on top of that for the prior convictions. Two months on top of that for the offending while on bail. That gets me to 14.[10] I give you four months' credit for your pleas of guilty. The end sentence is 10 months.[9] When he came to allocate the sentences to each charge he did so as follows:(a) the first shoplifting offence: 10 months imprisonment;(b) the second shoplifting offence: three months imprisonment (concurrent);(c) the third shoplifting offence: one month imprisonment (concurrent);(d) failing to answer bail: one month imprisonment (concurrent);(e) failing to stop: convicted and discharged;(f) dangerous driving: two months imprisonment (concurrent);(g) driving while suspended: one month imprisonment (concurrent); and(h) assault: two months imprisonment (concurrent).Assessment of appeal[10] When paragraphs [9] and [10] are read with how the Judge allocated the sentences, it seems that he approached the sentencing by taking the first shopliftingoffence as the lead offence and applying uplifts for the other offending, but adjusting the uplifts for the dangerous driving and the assault for totality. The overall end sentence derived in this was then applied to the lead offence, and the concurrent sentences were allocated on the basis of the sentence he saw as appropriate for that particular offence without the totality adjustment.[11] Counsel for Mr Tawa accepts that for the shoplifting offences a sentence of six months imprisonment in total was available. He says that an additional one month imprisonment should be added for the assault, a further one month for the driving offending7 and a further one month because Mr Tawa offended on bail. He submits that there should be no uplift for breach of bail. He also submits that there should be no uplift for Mr Tawa's previous offending because that is already takeninto account in imposing imprisonment sentences for offending that would otherwise have resulted in community based sentences. He notes that Mr Tawa has no previous driving convictions. On Mr Tawa's counsel's approach this would mean a totalsentence of 10 months imprisonment, and with a 25 per cent discount for his guilty plea, the end sentence would be seven and a half months imprisonment.[12] This approach differs from that taken by the Judge only in respect of whether there should be any term of imprisonment for the breach of bail, any uplift for MrTawa's previous history, and the extent of the uplift for offending on bail. I agreewith Mr Tawa's counsel that the breach of bail was sufficiently minor that it did not require any uplift. I do not agree with him that the Judge was not entitled to upliftthe sentence for Mr Tawa's history. A two month uplift was not out of the available range given Mr Tawa's extensive dishonesty history. The two month uplift for offending on bail might be regarded as at the high end, but it was not out of range given that, while on bail, Mr Tawa committed one of the shop lifting offences, the driving offences, and the assault. On this basis the overall end sentence was at the high end but it cannot be said that it is manifestly excessive.7 One month was put forward as appropriate in counsel's oral submissions. His writtensubmissions had propose that no additional term for this offending should be imposed.[13] Another way to have approached this sentencing was to have applied short cumulative sentences to each set of offending that was different in kind.8Approached in this way the respondent submits the following sentences would have been appropriate:(a) six months for the three shoplifting offences, plus a one month uplift for the third offence having been committed on bail, and allowing a 25 per cent discount for the guilty plea: overall end sentence of five months and one week;(b) one month on the failure to appear, discounted for the guilty plea: end cumulative sentence of three weeks;(c) two months for the dangerous driving, uplifted by two weeks for driving while suspended and failing to stop, and two weeks for offending on bail, and discounted for the guilty plea: end cumulative sentence of two months and one week; and(d) two months for the assault, uplifted by two weeks for relevant previous convictions and two weeks for offending on bail, and discounted for the guilty plea: end cumulative sentence of two months and one week.[14] When added together this would mean a total sentence of ten months and two weeks, although a small adjustment for totality might then be made. I agree with the respondent that this approach also indicates that the Judge's sentence was notmanifestly excessive, albeit that a slightly lesser sentence might have been imposed.[15] Whether taking counsel for Mr Tawa's approach but including a small upliftfor previous relevant convictions, or taking the respondent's alternative approach andmaking a small adjustment for totality, I conclude that any adjustment to the sentence on appeal would amount to improper "tinkering".98 Sentencing Act 2002, s 84(1).9 R v Shipton [2007] 2 NZLR 218 (CA) at [142].[16] For completeness I note that Mr Tawa had originally appealed on the basis that he should have been granted home detention. However the assessment made at the time of sentencing was that he did not have a suitable address. I understand the now intends to seek home detention in the District Court pursuant to the leave he was granted.Result[17] Accordingly the appeal is dismissed.Mallon J