TE TAU v NEW ZEALAND POLICE [2020] NZHC 1932

TE TAU v NEW ZEALAND POLICE [2020] NZHC 1932 [4 August 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2020-054-1143[2020] NZHC 1932NATHAN TE TAUvNEW ZEALAND POLICEHearing: 4 August 2020Appearances: P A Foster for the AppellantJ J Harvey for the RespondentJudgment: 4 August 2020JUDGMENT OF COOKE J[1] Nathan Te Tau appeals against a sentence of 18 months' imprisonment anddisqualification from driving for 12 months imposed by the District Court.1 Thissentence was imposed following his guilty plea to one charge of breach of releaseconditions, three charges of driving whilst disqualified (third or subsequent), onecharge of failing to remain stopped, and one charge of intentionally hindering anauthorised person in breach of the COVID-19 requirements imposed during the Level4 lockdown.21 Police v Te Tau [2020] NZDC 9268.2 Sentencing Act 2002, s 96A (Cat 2, maximum imprisonment 1 year or fine not exceeding $2000);Land Transport Act 1998, ss 32(1)(a) and 32(4) (Cat 3, maximum imprisonment 2 years or fine of$6,000); Land Transport Act 1998, ss 52A(1)(b) and 114 (Cat 1, Fine of $10,000); and Health Act1956, s 72(a) (Cat 2, maximum imprisonment 6 months or fine of $4,000).Factual background[2] Mr Te Tau has a number of previous convictions, including convictions fordriving related matters. On 19 July 2019 he was sentenced to one year and one monthimprisonment for driving while disqualified on a third or subsequent occasion, and hewas disqualified from driving for one year. He was released from prison during 2019.He was given a written instruction as part of his release conditions to report to theFoxton Reporting Centre on 10 October 2019, and fortnightly thereafter.[3] The first of the present offences relate to his failure to report on 10 October2019, despite reasonable efforts being made to contact him.[4] On 24 October 2019 he was then found driving whilst disqualified at 2 am inthe morning. This resulted in the second charge.[5] On 28 January 2020 he was pulled over when police were concerned about thecondition of the vehicle he was driving. This was at 9.50 am. He was again drivingwhilst disqualified.[6] On 25 April 2020 he was again found driving whilst disqualified at 10.40 pm.On this occasion he was also in breach of the COVID-19 requirements which had bythen been imposed. This formed the basis for the further charges of driving whiledisqualified, failing to remain stopped, and breach of the COVID-19 regulationsduring the Level 4 lockdown. The summary of facts records that after being pulledover, Mr Te Tau told police officers that the police had no business there. He then gotback into his car. He was then warned that if he drove away he would be arrested. Hethen did so. Police undertook a search for his vehicle but it could not be located. Thesummary of facts also records that "in explanation the defendant declined tocomment".[7] The summary of facts also records that Mr Te Tau had been warned or arrestedon three previous occasions during the COVID-19 Level 4 lockdown. On 28 March2020 he was found at 7 pm travelling for non-essential purposes as a passenger in avehicle, and the occupants were educated about the lockdown rules. On 7 April 2020he was a passenger in a vehicle with two associates and was verbally warned aboutbreaching the rules. On 11 April he was located at an address in Sanson with twoassociates, became obstructive, and arrested for a COVID-19 breach. He was thengiven a pre-charge warning.[8] Judge Sygrove noted Mr Te Tau's seven prior convictions in relation to drivingwhile disqualified. He determined that the starting point for the driving whiledisqualified charges was 18 months' imprisonment, which should be uplifted by threemonths for the breach of the COVID-19 regulations and breach of release conditions.He also uplifted by a further three months for his previous convictions. He thenapplied the 25 per cent discount for the guilty plea, resulting in the sentence of 18months' imprisonment.3Approach on appeal[9] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that:(a) For any reason, there is an error in the sentence imposed on conviction;and(b) A different sentence should be imposed.[10] A sentence appeal is an appeal against a discretion and only if there is an errorof principle, or the sentence is manifestly excessive, should the appellate court re-exercise the discretion.4 The focus is on the final sentence and whether that was in theavailable range, rather than the exact process by which it was reached.5 An appealcourt should not engage in mere "tinkering".6 The Court of Appeal has accepted,however that there may be cases, albeit rare, where "what has gone wrong is such asto require correction albeit the sentence imposed is within range".73 Police v Te Tau, above n 1, at [7].4 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].5 Ripia v R [2011] NZCA 101 at [15].6 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler vCommissioner of Inland Revenue [2017] NZHC 2888, (2017) 28 NZTC 23-044 at [16]; and Larkinv Ministry of Social Development [2015] NZHC 680 at [26].7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[11] Three errors are advanced in the present case.Explanation for conduct[12] First, counsel for Mr Te Tau argues that there was an explanation for Mr TeTau's conduct which was not taken into account by the District Court Judge. That wasthat the offending on 25 April 2020 took place because Mr Te Tau was attempting toget Ventolin for his asthmatic son, who was having an asthma attack. An affidavitdated 30 July 2020 has been provided by Mr Te Tau, together with an application unders 335 of the Criminal Procedure Act 2011. The Crown contends that the Judge wasright to put that explanation to one side as Mr Te Tau had pleaded guilty on the basisset out in the summary of facts (which does not include this explanation), Mr Te Tau'saccount was disputed, and in any event it did not make any meaningful difference tothe sentence. It also says that the further evidence should not be received as it is notfresh evidence.8[13] The summary records what Mr Te Tau said to police on being pulled over,which is inconsistent with what he now says. If the explanation he now offers werecorrect, it would have been especially relevant to the COVID-19 charge. As JudgeKrebs records in a decision declining Mr Te Tau bail on 30 April, police had beengiven an opportunity overnight to check the explanation and did not agree with it.9The Judge also said that if it were true that the son was having an asthma attack, theobvious approach would have been to ask family at the location with the inhaler tobring it to the home.10 If Mr Te Tau wished to vacate his guilty plea and challengewhat the summary recorded with the evidence he now puts forward, he should havedone so at that stage.[14] Once a guilty plea has been entered in relation to a summary of facts, the Courtis required to sentence on that basis.11 There was no disputed fact hearing in relationto this matter as Mr Te Tau pleaded guilty on the summary of facts. The explanationhas only been subsequently raised, and it is inconsistent with what is recorded in the8 Lundy v R [2013] UKPC 28 at [119]–[120].9 New Zealand Police v Te Tau [2020] NZDC 7482.10 At [10].11 Sentencing Act 2002, s 24(1)(b). R v Whiunui, CA 212/05, 9 November 2005 at [9]–[12].summary. In those circumstances, I agree that there is no basis to say that the Judgeerred in failing to take this into account. Moreover, given the repeated nature of theoffending, and the fact that he was driving while disqualified anyway, I agree that it isunlikely to have made a difference to the ultimate end sentence.Double-counting[15] Counsel's second submission was that there was double-counting. Mr TeTau's conviction for driving whilst disqualified on a third or subsequent occasionalready intrinsically contemplated the fact that he was a recidivist. To then furtherincrease the sentence because of his previous convictions involved double-counting.In response, the Crown submits that the Court did not say the uplift was due solely tothe prior disqualified driving history as it also contemplated the previous failing tostop and driving dangerously charges.[16] I accept that it was important to take care when uplifting a sentence for priorconvictions given that the nature of this particular charge already takes into accountthat history. There is a risk of double-counting. On the other hand, that is only true toan extent — here Mr Te Tau had committed the offence of driving while disqualifiedon a third or subsequent occasion previously. The offence by itself did not recognisethis aspect of his recidivism. There were also the other non-disqualification charges.[17] The judgment of the District Court is not entirely clear on the factors that wereincluded in the uplift as opposed to the starting point, but by itself that does notdemonstrate that the sentence was erroneous. It is still a question of assessing whetherthe end sentence is within range. It seems to me that this ground of appeal is really anaspect of the argument I address next.Ultimate sentence excessive[18] Counsel for Mr Te Tau submitted that the end sentence was manifestlyexcessive. He refers to Royal v Police, which involved six charges of driving whiledisqualified when there had been eight previous convictions for this offending.12 The12 Royal v Police, HC Palmerston North, CRI-2008-454-41, 17 June 2009.starting point of two years with no uplift for previous convictions was upheld. InPaparoa v Police, the Court adopted what counsel for Mr Te Tau contended waseffectively a 15 month starting point for the equivalent charges.13[19] The Crown submitted that reliance on other decisions may not be the bestguide, and pointed out that in Royal Miller J observed that "sentences vary widely"for this type of offending.14 The Crown contends that the sentence here was not aninappropriate one.[20] I accept that the sentence here was at the higher end of the available range, butI do not accept it was outside that range. In Royal v Police, Miller J held:[22] Mr Stevenson argued that Judges routinely adopt much lower startingpoints than the two years used in this case, even for recidivist offenders suchas Mr Royal. I accept that lower starting points are sometimes used, butsentences vary widely. The question is whether the sentence was manifestlyexcessive. There were six charges of driving while disqualified over a shortperiod, and eight previous convictions for doing so. He was subject to releaseconditions. In these circumstances, it was open to the Judge to take a startingpoint of two years, the maximum for a single offence, before credit for guiltypleas: R v Butterfield CA100/97 23 July 1997. As the Court held in that case,disqualification is an important instrument for dealing with irresponsibledriving, and adherence to such orders is essential if the integrity of the driverlicensing system is to be preserved. Mr Royal has made it plain that he is notprepared to accept disqualification, and must take the consequences.[21] Similar considerations arise here. What is notable about the present offendingis that it appears to have taken place not long after Mr Te Tau's release fromimprisonment for committing the same offence. There may have been an initial periodof compliance with the terms of release, but he then failed to do so. His interactionswith police and his repeated offending then occurred almost continuously from thattime. In those circumstances, it was inevitable that the end sentence was going to bematerially higher than the sentence imposed last year.[22] The starting point was properly set by reference to the three charges of drivingwhile disqualified. It also seems to me that the starting point was appropriatelyuplifted because of recidivism, the breach of release conditions, the COVID-1913 Paparoa v Police, HC Auckland, CRI-2009-404-189, 18 August 2009. The actual starting pointwas two years' imprisonment.14 Royal v Police, above n 12, at [22].charge, the failure to stop, and the failure to comply with advice and otherrequirements generally. I accept that it is at the higher end of the available range, butgiven Mr Te Tau's continuous refusal to comply with the requirements, it is notsurprising that a stern approach was adopted.[23] I recognise that there may be a growing concern that imprisonment is notproving to be an effective tool to prevent Mr Te Tau from further offending. But asthings stand at present, it cannot be said that the District Court erred in imposing alonger period of imprisonment. For these reasons, the appeal is dismissed.Cooke JSolicitors:Peter Foster, Levin for the AppellantBVA, Palmerston North for the Respondent