MATANGI v POLICE [2018] NZHC 1479

MATANGI v POLICE [2018] NZHC 1479 [20 June 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-128[2018] NZHC 1479BETWEEN PEBBLES MATANGIAppellantAND NEW ZEALAND POLICERespondentHearing: 18 June 2018Appearances: R E V Slade for AppellantA F Devathasan for RespondentJudgment: 20 June 2018JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 20 June 2018 at 3.45 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] On 22 March 2018, Ms Pebbles Matangi was sentenced in the PapakuraDistrict Court on three sets of charges arising from offending in October, Novemberand December 2017. Judge Ronayne imposed a total end sentence of 28 months'imprisonment, as well as disqualification from driving for three and a half years.1[2] Ms Matangi now appeals against her sentence on the grounds that the Judgeerred in failing to give appropriate weight to her personal circumstances, particularlyher youth, and in imposing cumulative sentences of imprisonment and disqualificationwithout having regard to totality.The offending[3] Ms Matangi was sentenced on the following charges:Group one: October 2017Date ofoffendingOffence Section Maximum penalty14 October2017Receiving stolenproperty (over$1,000)ss 246(1) and 247(a) ofthe Crimes Act 1961seven years'imprisonment14 October2017Failing to stopwhen followed bypolice (x 2)s 52A of the LandTransport Act 1998$10,000 fine14 October2017Possession of anoffensive weapons 202A of the Crimes Act three years'imprisonment14 October2017Possession ofutensils formethamphetamineuses 13 of the Misuse ofDrugs Act 1975one yearimprisonment or$500 fine or both14 October2017Reckless driving s 35 of the Land TransportActthree months'imprisonment or a$4,500 fine;mandatory1 Police v Matangi [2018] NZDC 5613.disqualification ofsix months or more14 October2017Unlicensed driverfailing to complywith prohibitions 52 of the Land TransportAct$10,000 fineGroup two: November 20175 November2017Burglary s 231 of the Crimes Act 10 years'imprisonment5 November2017Dishonestly using adocuments 228 of the Crimes Act seven years'imprisonment7 November2017Failing to answerbails 38 of the Bail Act 2000 one yearimprisonment or a$2,000 fineGroup three: December 20172 December2017Unlawfulinterference with amotor vehicles 226(2) of the CrimesActtwo years'imprisonment2 December2017Unlawful presencein a building (x 2)s 29 of the SummaryOffences Act 1981three months'imprisonment or$2,000 fine2 December2017Possession of aknife in publics 13A of the SummaryOffences Actthree months'imprisonment or$2,000 fineGroup one: the October 2017 offending[4] On 14 October 2017, while prohibited from driving, Ms Matangi was the driverof a stolen Subaru motor vehicle in Manukau. Police activated their red and blueflashing lights and attempted to stop the vehicle. However, Ms Matangi failed to stopand accelerated away. An extended police chase followed, during which Ms Matangiexceeded speed limits, drove through red lights and made several dangerousmanoeuvres in congested traffic. As she turned into Greenmount Drive she collidedwith the curb, causing severe damage to the front left suspension of the vehicle. Shewas then stopped by police and arrested. Police located a knife concealed in MsMatangi's trousers. It had a double-edged blade of approximately 12 centimetres inlength. They also located two used glass methamphetamine pipes in the vehicle.[5] Ms Matangi first appeared on these charges on 16 October 2017, and wasremanded on bail. The subsequent offending was therefore committed while she wason bail.Group two: the November 2017 offending[6] On 5 November 2017, Ms Matangi entered a residential property in Papakura.The house was occupied by people who were known to her, and she entered theirproperty while they were out. She took a number of their personal items, including$2,250 in cash, two wallets, a laptop, cell phone, jewellery, power tools and a VISAcard. The total value of the items, including the cash, was approximately $6,000.[7] Later that same day, Ms Matangi used the stolen VISA card to purchase a drinkand confectionery to the value of $8.00.[8] On 7 November 2017, Ms Matangi was due to appear in the District Court inrelation to the group one (October) offending. She failed to appear.Group three: the December 2017 offending[9] On the morning of 2 December 2017, Ms Matangi was at a residential addresson Great South Road, Opaheke. The occupant, who was not known to Ms Matangi,returned home to find her rummaging through the glovebox of the occupant's Nissanmotor vehicle parked in the garage. The occupant shouted at Ms Matangi to get offher property.[10] Ms Matangi left the property, and the police then chased her through severalresidential properties. She entered a property at Fairview Ave, Opaheke and began towalk up the internal staircase. Disturbed by the occupant, Ms Matangi left the propertyover a fence and entered a property at Callis Ave, Opaheke. She knocked on the doorand asked the female occupant for a glass of water. When the occupant turned herback, Ms Matangi entered the house without permission. Realising the police were atthe property, she ran out the back door but was apprehended on the back lawn.[11] When police searched Ms Matangi, they located a stainless steel multi-tool,with a number of different blades, concealed in her trousers.Ms Matangi's personal circumstances[12] At the time of the offending, Ms Matangi was 20 years old; she is now aged21. She has two previous convictions arising out of a single incident in December2014: driving with excess breath alcohol as a person under the age of 20, and givingfalse details as to her identity when stopped by police. She received a sentence ofcommunity work and three months' disqualification from driving on those charges.[13] The pre-sentence report states that factors contributing to Ms Matangi'soffending include her attitudes, lifestyle, friends and associates, and drugs. Wheninterviewed, she displayed what is described as a "cavalier attitude" towards heroffending, and showed no remorse for her victims or any regard for the consequencesof her actions. Rather, the report writer considered her attention was more focused onher love of driving motor vehicles at high speeds.[14] Ms Matangi admitted to using marijuana and methamphetamine over the pastten years. She also admitted to having self-harmed and attempted suicide recently,while in custody. The pre-sentence report states that she has no contact with hermother and father, and considers that her whānau do not like her.[15] Ms Matangi was assessed as presenting a medium to high risk of re-offending.A sentence of imprisonment was recommended to give her the opportunity to addressher rehabilitative needs in a structured environment.District Court sentencing[16] After setting out the charges, the facts of the offending and the contents of thepre-sentence report, Judge Ronayne identified the aggravating features of the firstgroup of offending. He observed that it was a brazen series of offending, and that thedriving was reckless in the extreme. It continued over a sustained period and createdsevere actual danger to others.[17] Turning to the second group of offences, the Judge considered it a "seriousaggravating factor" that it was a burglary of a dwelling house by day, noting that therewas an inherent risk of confrontation with the occupant.2 He stated that "largeunrecoverable losses" were caused by this offending, and the subsequent use of thevictim's VISA card to make a small purchase added "insult to injury".3[18] As for the third group of offences, the Judge considered the interference withthe motor vehicle to be serious, describing it as "tantamount to burglary" andcommenting that Ms Matangi was very fortunate not to have been charged withburglary.4 Further, it was an aggravating feature that an actual confrontation with theoccupant occurred.[19] Finally, the Judge considered it one of the most serious aggravating features ofthe offending that Ms Matangi was on bail for the earlier offending at the time of theNovember and December offending. In particular, the offending committed while onbail was similar to the kind of offending in relation to which Ms Matangi was on bail(for example, the possession of a knife on two occasions).[20] The Judge then adopted the following starting points on each charge:Group one: October 2017Offence Starting pointReceiving stolen property (over $1,000) six months' imprisonment (lead offence)Failing to stop when followed by police (x 2) convicted and dischargedPossession of an offensive weapon one month imprisonment (concurrent)Possession of utensils for methamphetamineusethree months' imprisonment (concurrent)Reckless driving three months' imprisonment (cumulative)Unlicensed driver failing to comply withprohibitionconvicted and discharged2 At [21].3 At [21].4 At [22].Group two: November 2017Burglary 20 months' imprisonment (lead offence)Dishonestly using a document six months' imprisonment (concurrent)Failing to answer bail one month (cumulative)Group three: December 2017Unlawful interference with a motor vehicle three months' imprisonment (leadoffence)Unlawful presence in a building (x 2) convicted and dischargedPossession of a knife in public two months' imprisonment (cumulative)[21] The Judge then applied the following uplifts and discounts to the startingpoints:(a) Group one:(i) discount of one month for youth(ii) discount of two months for guilty pleas (25 per cent)(b) Group two:(i) uplift of three months for offending while on bail(ii) discount of six months for guilty pleas (25 per cent)(c) Group three:(i) discount of one month for guilty pleas (20 per cent)[22] The total end sentence came to 28 months' imprisonment.[23] The Judge also imposed periods of disqualification from driving on thedriving-related charges. The way in which the Judge structured the disqualificationperiods is not entirely clear from his sentencing notes. Counsel are agreed that theJudge appears to have intended to impose 18 months' disqualification on the recklessdriving charge, and a disqualification period of two years on all the other driving-related charges (to be served concurrently with one another, but cumulative on thereckless driving disqualification period). This resulted in a total period ofdisqualification of 42 months, or three and a half years.Submissions on appealThe appellant[24] Ms Matangi appeals against the sentence imposed on the grounds that theJudge erred in:(a) giving insufficient weight to Ms Matangi's personal circumstances, inparticular her youth; and(b) imposing cumulative sentences of imprisonment and disqualificationand not adjusting for totality.[25] In relation to the first ground, Mr Slade for Ms Matangi points out that theJudge did not give any youth discount in relation to the November and Decemberoffending, and only gave a discount of one month for youth in relation to the Octoberoffending. Mr Slade submits that youth discounts of between 20 and 40 per cent havebeen given in other comparable cases, and cites the comments of the Court of Appealregarding youth discounts in Churchward v R.5 He emphasises that Ms Matangi wasonly 20 years old at the time of the offending, and submits that her offending consistsof impulsive actions by a young person who is yet to fully mature and who is clearlysusceptible to negative influences from her peers. He refers to her problems with druguse and her lack of connection to her whānau. He also relies on Te Whata v Police asa case in which a youth discount was given for an offender in a similar position to MsMatangi.6[26] Mr Slade submits that a youth discount of around 20 per cent (six months)should have been imposed in the present case, having regard to the crushing effect ofa first-time sentence of imprisonment on Ms Matangi, at age 21, and her greatercapacity for rehabilitation as a young person with limited prior convictions.5 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.6 Te Whata v Police [2016] NZHC 1293.[27] In relation to the second ground of appeal, Mr Slade does not take issue withhow the Judge constructed the sentences. However, he submits that the Judge failedto consider the totality principle after imposing cumulative sentences. He contendsthat as a result, the end sentence was out of proportion to the gravity of the overalloffending, particularly with regard to Ms Matangi's age, the fact this was her firstprison sentence, her lack of any relevant prior convictions, and her compliance withher previous community-based sentence. In making this submission he relies on thedecision of this Court in Proctor v Police.7[28] Mr Slade further submits that the disqualification periods should not have beencumulative, relying on Robarts v Police which he says involved more serious driving-related offending than the present case and in which a 16-month disqualificationperiod was substituted on appeal.8 Mr Slade submits that the appropriatedisqualification period in the present case is 16 to 20 months.[29] In summary, Mr Slade says that the sentence is manifestly excessive and anend sentence of less than two years' imprisonment and 16 to 20 months'disqualification from driving would have been appropriate.The respondent[30] Ms Devathasan for the respondent submits that the offending, taken as a whole,was serious. The reckless driving was prolonged and extreme, creating severe actualdanger to members of the public. The burglary targeted a dwelling house and itemsvalued at $6,000 were stolen, and because the owner of the house was known to MsMatangi the offending involved a breach of trust. Finally, the unlawful inference witha vehicle and unlawful presence on property involved intrusion into dwelling housesand actual confrontation with occupants.[31] In relation to the youth discount given, Ms Devathasan submits that such adiscount is always discretionary. She submits that there was no information before theJudge to indicate that any of the concerns in Churchward – immaturity, poor impulse7 Proctor v Police [2018] NZHC 763.8 Robarts v Police [2014] NZHC 666.control or lack of neurological development – applied particularly to Ms Matangi. Inany event, the Judge gave a modest youth discount and Ms Devathasan submits thathe appropriately exercised his discretion in this regard. Although he gave no youthdiscount in relation to the November and December offending, Ms Devathasansubmits that it was open to him to conclude that these formed part of a pattern ofoffending indicating that Ms Matangi had limited prospects of rehabilitation. She alsonotes that Ms Matangi expressed no remorse, and displayed a "cavalier attitude" toher offending.[32] As regards the totality principle, Ms Devathasan submits that the Judge wascorrect to impose cumulative sentences for each group of offending, as they did notform a connected series and were largely different in kind. Within each group, theJudge specified cumulative or concurrent sentences for each offence, recognisingwhere appropriate that some offences formed a connected series.[33] With reference to case law, Ms Devathasan submits that the sentence imposedfor each group was within the available range, and indeed that the sentence for thegroup three offending was below the applicable range for such offending. Althoughthe Judge did not expressly make any reduction for totality, she submits that the lowsentence imposed on the group three offending resulted in an end sentence that wasproportionate to the gravity of the overall offending.[34] In relation to the disqualification period, Ms Devathasan submits that the 18-month disqualification period on the reckless driving charge was justifiable andappropriate. However, she acknowledges that the Judge exceeded his jurisdiction inimposing a two-year cumulative sentence on all the other charges: she says that thetotal disqualification period available to the Judge was three years, which is the periodshe submits should have been imposed.Approach on appeal against sentence[35] I must allow Ms Matangi's appeal if I am satisfied that, for any reason, there isan error in the sentence imposed by the District Court and if I am satisfied a differentsentence should be imposed.9 In any other case, the appeal must be dismissed.10[36] The Court of Appeal in Tutakangahau v R confirmed that the approachremains that of determining whether or not the end sentence is "manifestlyexcessive".11 A sentence appeal therefore turns on a consideration of the finaloutcome: although the route by which the sentencing Judge reached that outcome isrelevant, it is seldom pivotal.12Did the Judge err in imposing cumulative sentences of imprisonment withoutregard to totality?[37] The Judge effectively treated each set of offending (the October, Novemberand December charges) as discrete and adopted a cumulative approach to sentencing,identifying a lead charge within each set of offending and uplifting where necessaryto reflect the other charges within that set.[38] Section 84 of the Sentencing Act 2002 provides guidance on the use ofcumulative and concurrent sentences of imprisonment. It states that cumulativesentences of imprisonment are generally appropriate if the offences for which anoffender is being sentenced are different in kind, whether or not they are a connectedseries of offences.13 On the other hand, concurrent sentences of imprisonment aregenerally appropriate if the offences for which an offender is being sentenced are of asimilar kind and are a connected series of offences.14 In determining whether two ormore offences form a connected series, the Court may consider the time at which theyoccurred and the overall nature of the offending, as well as any other relationshipbetween the factors that the Court considers relevant.159 Criminal Procedure Act 2011, s 250(2).10 Section 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].12 Ripia v R [2011] NZCA 101 at [15].13 Sentencing Act 2002, s 84(1).14 Sentencing Act, s 84(2).15 Sentencing Act, s 84(3).[39] In the present case I consider that Judge Ronayne was entitled to adopt acumulative approach to sentencing: the three sets of offending were separated byseveral weeks and despite some similarities in the offences committed, they did notform part of a connected series. As I recently observed in Proctor v Police:16While there is scope for taking a different view on this point and for theadoption of a concurrent sentencing approach, I am not satisfied that the Judgeerred in adopting a cumulative approach. However, having adopted acumulative approach, he was required to consider and apply the totalityprinciple: cumulative sentences of imprisonment must not result in a totalperiod of imprisonment wholly out of proportion to the gravity of the overalloffending.[40] Judge Ronayne did not expressly refer to the totality principle in the course ofsentencing Ms Matangi. Although s 85 of the Sentencing Act requires the sentencingJudge to consider totality when imposing concurrent sentences, such considerationmay be implicit rather than explicit.17 The real question on appeal is whether the totalperiod of imprisonment imposed was in fact wholly out of proportion to the gravity ofthe overall offending.[41] In order to determine the answer to that question, it is necessary to considerwhether the starting points adopted for each set of offending were within range, beforeassessing the cumulative effect of those starting points. For clarity and ease ofcomparison, I will refer only to the starting points adopted by the Judge in this caseand other cases, leaving out consideration of personal factors at this stage.Group one offending: October 2017[42] The group one offending comprises seven charges. The most serious of theseare the charges of receiving stolen property (the motor vehicle) and reckless driving.Receiving stolen property valued at over $1,000 carries a maximum sentence of sevenyears' imprisonment.18 There is no tariff judgment for the offence of receiving,although factors such as the value of the goods, the duration of the offending, theexistence of a commercial element and the closeness of the relationship between the16 At [21] (footnotes omitted).17 Knock v Police [2017] NZHC 910 at [17].18 Crimes Act 1961, s 247(a).burglar and receiver will be relevant.19 Very little information is available regardingthese factors in the present case. The car was stolen overnight prior to Ms Matangi'soffending. Its value is unclear. There is no evidence of a commercial element to theoffending.[43] In light of the information available, I consider the Judge's starting point of sixmonths on the receiving charge was within range. In Ellis v R, Mr Ellis was found inpossession of goods valued at around $5,000 some hours after the burglary of aresidential property.20 The Court of Appeal held that the Judge's starting point of 18months was within the available range, although stern.21[44] As regards the driving, I agree with the Judge's description that it was recklessin the extreme. It continued over a prolonged period as Ms Matangi attempted toevade police, and her driving placed the lives of others at risk multiple times. Althoughit reflected the maximum sentence available on a charge of reckless driving,22 an upliftof three months' imprisonment to reflect this charge was entirely appropriate. This isparticularly so given that no further uplift was imposed to reflect the other chargeswithin this set, which included possession of an offensive weapon and utensils formethamphetamine. I consider that there is no error in the effective starting point ofnine months' imprisonment adopted in respect of the group one offending.Group two offending: November 2017[45] The lead offence within this set was the burglary, which carries a maximumsentence of 10 years' imprisonment.23 As Judge Ronayne observed, the fact that it wasa burglary of a residential dwelling was a significant aggravating feature due to theheightened risk of confrontation with the occupants.24 Items with a total value of$6,000 were stolen.19 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].20 Ellis v R [2012] NZCA 513.21 At [9].22 Land Transport act 1998, s 35(2)(a).23 Crimes Act 1961, s 231(1).24 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].[46] Judge Ronayne adopted a starting point of 20 months on the burglary charge.Mr Slade submitted that this starting point was stern, although he did not press thepoint. In Proctor v Police, I reviewed the sentences imposed for burglaries of broadlycomparable seriousness to the present case.25 Those cases involved burglaries ofresidential dwellings where the items stolen ranged in value between $1,340 and$15,000.26 Starting points of between 17 to 20 months were adopted. I thereforeconsider that there was no error in the starting point of 20 months adopted by the Judgein the present case. The uplift of one month for failing to answer District Court bailwas perhaps somewhat stern, but nevertheless available to the Judge.Group three offending: December 2017[47] Ms Devathasan relies on Kara-Newcombe v Police and McAlister v Police (andthe cases cited therein) to support the argument that the sentence imposed for theDecember offending was below the available range.27[48] In Kara-Newcombe v Police, the defendant was sentenced on a single chargeof unlawfully getting into a motor vehicle. The defendant's associate stole the keys toa vehicle parked outside a bar, and the defendant and his associate then drove thevehicle away. They were stopped by police some time later and fled the scene, butwere apprehended and arrested. By comparison to a number of other cases involvingbrief "joyriding" in a stolen vehicle, the High Court held that the appropriate startingpoint should have been seven months' imprisonment.[49] The present case is somewhat different, in that Ms Matangi did not drive thevehicle away because she was chased off the property by the occupant. However, heroffending has the aggravating feature of unlawful presence on a residential property,and there was actual confrontation with the occupant.[50] In McAlister v Police, the defendant was sentenced in the District Court to 20months' imprisonment in respect of a series of car-related offences committed between25 At [27]–[31].26 See French v Police [2015] NZHC 2635; Blissett v Police [2013] NZHC 156; Bates v R [2016]NZCA 456; Hotene v Police [2014] NZHC 2081.27 Kara-Newcombe v Police [2018] NZHC 25; McAlister v Police [2017] NZHC 2881.May and September 2017. These included unlawfully entering a vehicle and causingdamage, stealing a wheel from a car, unlawfully taking a vehicle, failing to stop whenpursued by police, and dangerous driving. Simon France J converted the sentence of20 months' imprisonment to a sentence of nine months' home detention. Because thequestion on appeal was whether a sentence of home detention should be substituted,this case is of limited relevance for present purposes.[51] Comparing the present case to Kara-Newcombe v Police and McAlister, andnoting that Ms Matangi unlawfully entered two further residential properties in hersubsequent flight from police, the starting point of five months' imprisonment adoptedon the group three offending was within range. I accept the Crown submission that asa stand-alone sentence for this offending, it could be considered somewhat lenient.Cumulative starting points and the totality principle[52] I have accordingly determined that the starting points imposed in respect ofeach set of offending were within range. Adding them together, they come to acumulative total of 35 months' imprisonment before making allowance for personalfactors. The question is whether the Judge should have made some reduction fortotality rather than simply adding the cumulative periods together.[53] Ms Devathasan relies on Knock v Police28 and Waenga v Police29 to supportthe submission that the sentence imposed for the offending as a whole was squarelywithin range.[54] In Knock v Police, Mr Knock had been sentenced in the District Court to a totalof 24 months' imprisonment on five charges: burglary; driving while disqualified(third or subsequent); driving with excess breath alcohol (third or subsequent);dangerous driving; and shoplifting. In brief, he had stolen a car from a residentialproperty and driven it at speed through residential streets, weaving across both sidesof the road. He collided with a lamp post and the car was effectively written off.28 Knock v Police [2017] NZHC 910.29 Waenga v Police [2016] NZHC 1712.Breath testing revealed he had been drinking, and he was also a disqualified driver atthe time.[55] The District Court Judge adopted a concurrent approach to sentencing, with a20-month starting point for the burglary and a 12-month uplift for the drivingoffending (resulting in an effective starting point of 32 months). The decision wasupheld on appeal.[56] In Waenga v Police, Mr Waenga was sentenced on six charges: breach of homedetention, burglary, dishonestly using a document, possessing instruments forconversion and two charges of unlawfully being in an enclosed yard. The incidentsgiving rise to the charges occurred in January, February and March 2015. Mr Waengabreached the conditions of his home detention sentence in January 2015. In February,he committed a burglary at business premises, stealing goods with an estimated valueof around $20,000. In March, he used a stolen VISA card to make several purchasestotalling around $100. The following day, he was found unlawfully in two residentialproperties in possession of screwdrivers, bolt cutters and pliers. The High Courtupheld a starting point of 24 months for the burglary as the lead offence, with an upliftof four to five months to reflect the other charges (an end starting point of 29 to 30months).[57] Ms Devathasan submitted that Mr Waenga's offending is broadly comparableto the group two and group three offending in the present case, leaving out group one.It is clear that, taken together, the three sets of offending committed by Ms Matangiare more serious than the offending in both Knock and Waenga.[58] Having regard to the starting points adopted in Knock and Waenga, I do notconsider that the Judge's cumulative starting point of 35 months' imprisonment waswholly out of proportion to the gravity of the overall offending in this case, andtherefore no reduction for totality was required.Did the Judge give an insufficient discount for Ms Matangi's personalcircumstances?[59] Judge Ronayne discounted the sentence on the October offending by onemonth to reflect Ms Matangi's youth. He expressly recorded:30I give you off month off for your relative youth I am saying right now thatthat is the only discount that you are getting for youth in this sentencingprocess.[60] He did not state any reasons for taking this approach. The discount of onemonth amounted to a little over 10 per cent of the starting point on the Octoberoffending.[61] The Crown cites the following passage from the Court of Appeal's decision inPouwhare v R:31 the fact [that] an offender is a young person can sometimes be given radicaleffect on sentence, unconstrained by any normative percentage, even whereoffending is serious. In other cases that is not possible. The young age of theoffender cannot be accorded presumptive, let alone paramount, weight. Theobjective seriousness of the offending, the young person's part in it, anythingaggravating and otherwise mitigating must also be weighed.[62] In the present case, Ms Matangi's offending was certainly serious and thesentencing principles of denunciation and deterrence are engaged.32 Nevertheless, Ialso consider it a case where the factors stated in Churchward are relevant:(a) young people are more prone to take risks and have a less developedability to plan, consider, control impulses and make wise judgments;(b) young people are susceptible to negative influences and outsidepressures;(c) a young person's character is not yet fixed, and he or she therefore hasgreater prospects of rehabilitation; and30 At [24].31 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].32 Sentencing Act 2002, ss 7(1)(e) and 7(1)(f).(d) long prison sentences can have a crushing effect on young people.[63] Ms Matangi is 20 years old and prior to this offending, her criminal historywas very limited. She has never before been sentenced to imprisonment. The negativeinfluence of her friends and associates was identified in the pre-sentence report as afactor contributing to her offending. She is disconnected from her whānau. I considerthis a case where a youth discount should have been applied across all the charges MsMatangi faced, not just the October offending. In my view it was an error on theJudge's part to isolate the October offending and apply a youth discount only to thissubset.[64] Ms Devathasan submits that the Judge's approach was justified on the basisthat the November and December offending were discrete sets of offending while MsMatangi was on bail, and demonstrated that her rehabilitative prospects were limitedas she was commencing a pattern of offending. I do not agree that this warrants thenon-application of a youth discount on the later charges. While a lengthy criminalhistory may mean that some young offenders are entitled to a lesser discount for youth,in this case Ms Matangi had a very limited history before this offending. The October,November and December offending all occurred within a relatively short timeframeand is properly seen as being all within one category. At the time of the Novemberand December offending, Ms Matangi had not yet been sentenced on the Octobercharges. She had therefore not yet been reprimanded and given an opportunity torehabilitate. The Churchward factors (immaturity, risk-taking, lack of consequentialthinking and susceptibility to negative influences) would, in my view, still have beenoperative in relation to the November and December offending. I therefore considera youth discount should have been applied across all three groups of offending, andthat the Judge erred in this regard.[65] Mr Slade submits that discounts of between 20 to 40 per cent have been givenfor youth in previous cases, relying on the Court of Appeal's comment in BB(CA732/2012) v R.33 However, in that case the sentencing Judge had allowed a 40 percent discount in relation to sexual offending when the defendant was between 14 and33 BB (CA732/2012) v R [2013] NZCA 139 at [12].17 years of age, and the Court of Appeal regarded this as "towards the upper reachesof the available range".34 At the age of 20, Ms Matangi is not entitled to such asignificant discount. Nevertheless, more modest discounts of around 10 per cent havebeen given to reflect youth in cases where the offender was 20 years old at the time ofthe offending.35 I consider that a discount of 10 per cent across all charges wasappropriate in this case.[66] In reaching this conclusion, I note that Mr Slade also relied on Te Whata vPolice, where the Judge concluded that the end period of imprisonment was in all thecircumstances wholly out of proportion to the gravity of the overall offending. ManderJ commented:36I am fortified in reaching that conclusion by the need to recognise the impactof such a lengthy sentence on a relatively young offender facing what appearsto be her first sentence of imprisonment.[67] In adjusting the sentence, however, Mander J awarded a discount of only a littleover 11 per cent to account for Ms Te Whata's personal circumstances. That discountreflected Ms Te Whata's youth as well as her extremely difficult upbringing. I amtherefore not persuaded that Ms Matangi should receive any greater discount than 10per cent to account for her youth.Conclusion as to sentence of imprisonment[68] Having concluded that the Judge erred in failing to apply a youth discountacross all the charges, I will carry out the sentencing exercise afresh to determinewhether his error resulted in a sentence that was manifestly excessive.[69] On the starting point of 35 months, the Judge was entitled to impose the upliftof three months for offending while on bail, which is an aggravating feature personalto the offender. Had he then applied a 10 per cent discount across all the charges,followed by a guilty plea discount of between 20 and 25 per cent,37 he would have34 At [13].35 See Reuben v R [2017] NZCA 138 at [30]–[34]; R v Rakich [2014] NZHC 3287 at [111] and [140].36 At [31].37 No issue was taken with the quantum of the guilty plea discounts applied by the Judge, and counselwere not able to explain why a 20 per cent guilty plea discount was awarded on one set of chargesreached an end sentence of 26 months' imprisonment. The actual sentence imposedwas 28 months' imprisonment. Comparing the two, I am unable to say that the endsentence was manifestly excessive. The appellate Court on a sentence appeal shouldnot "tinker" with the sentence imposed by making very slight adjustments.38Did the Judge err in imposing cumulative disqualification periods?Jurisdiction to impose periods of disqualification[70] Ms Matangi was convicted of the following driving-related offences: twocharges of failing to stop when followed by police; reckless driving; and failing tocomply with a prohibition as an unlicensed driver.[71] Beginning with the failure to comply with a prohibition as an unlicensed driver,there is no mandatory period of disqualification in respect of this charge. However, s80 of the Land Transport Act allows the Court to order disqualification from drivingfor such period as the Court thinks fit if a person is convicted of an offence relating toroad safety under the Land Transport Act. I consider there is a clear connectionbetween an unlicensed driver failing to comply with a prohibition on driving and roadsafety, in the sense that one is affected by the other.39 In my view the Judge wasentitled to impose a period of disqualification as he saw fit on that charge.[72] As for reckless driving, s 35(2)(b) of the Land Transport Act requires the Courtto order disqualification for six months or more in relation to that charge. Because sixmonths' disqualification is a mandatory minimum sentence on this charge, the Judgewas entitled to impose a sentence of 18 months' disqualification for Ms Matangi'sreckless driving.[73] Turning then to failure to stop for police, s 52A(3) of the Land Transport Actstates that if a person is convicted of a first offence of failing to stop and committedthe offence while exceeding the applicable speed limit or operating a motor vehicle inan otherwise dangerous manner, the Court must order disqualification for six months.and 25 per cent on the others. However, it does not appear that Ms Matangi pleaded guilty to allcharges immediately, indicating that the Judge's discounts of 25 per cent were generous.38 See Robinson v Police [2017] NZHC 2655 at [56].39 See Husband v Napier City Council [1979] 1 NZLR 317 (CA) at 319.It appears that six months is the only available period of disqualification on this chargewhere those circumstances exist. In other provisions of the Land Transport Act, theCourt is required to order disqualification for six months "or more".40 Six monthsoperates as a mandatory minimum in those cases. However, the phrase "or more" isabsent from s 52A(3), thereby signalling that it has been deliberately omitted, and thatsix months' disqualification must be imposed. This means the Judge exceeded hisjurisdiction in imposing two years' disqualification on the first charge of failing tostop.[74] As for the second charge of failing to stop, s 52A(4) provides that if a personis convicted of a second such offence, the Court must order the person to bedisqualified from driving for one year. Again, this operates as a mandatory sentence.The Judge therefore also exceeded his jurisdiction in imposing two years'disqualification on the second charge of failing to stop.Cumulative or concurrent periods of disqualification?[75] Section 52A(6) then provides that a disqualification ordered under s 52A(3) ors 52A(4) is cumulative on, and not concurrent with, any other disqualification that acourt may order in respect of the facts that gave rise to the person's conviction forfailing to stop for police. Section 52A(8) provides that subsection (6) does not applyto offending that occurs after the facts that gave rise to the person's conviction forfailing to stop for police.[76] In my view, the two charges of failing to stop arose out of the same facts andthe Judge was required to make the two disqualification periods (of six months andone year respectively) cumulative on one another (resulting in a total disqualificationperiod of 18 months on those two charges). However, there was no requirement tomake that 18-month disqualification period cumulative on the 18-monthdisqualification period imposed for the reckless driving, which arose out of separatefacts occurring after the failures to stop.40 See ss 32(3)(b), 56(3)(b) and 58(2)(b).[77] I consider that the two disqualification periods (on the reckless driving andfailing to stop charges, respectively) should have been imposed concurrently. In Nicolv Police, Heath J observed that although cumulative disqualification periods may beimposed, it is generally preferable for District Court Judges to impose concurrentperiods.41 When determining whether to impose cumulative or concurrentdisqualification periods, it is appropriate for the Court to have regard to the factorslisted in s 84 of the Sentencing Act,42 namely whether the offences are similar in kind,the time at which they occurred and whether they formed part of a connected series.In the present case Ms Matangi's driving-related offending all occurred as part of aconnected "spree": after she failed to stop, a police chase ensued during which shedrove recklessly to avoid detection. Concurrent periods of disqualification wereappropriate.What was the total period of disqualification that should have been imposed?[78] Mr Slade relies on Robarts v Police, which involved two sets of offendingoccurring in May 2012 and August 2012. In May 2012, Mr Robarts failed to stop forpolice and then drove away at speed, overtaking vehicles erratically on the wrong sideof the road and crashing into a parked car. In August 2012, Mr Robarts again failedto stop for police and accelerated away at speed. At one point he stopped the car anddeliberately reversed it into the police vehicle. He then sped away and crashed into acar parked on the side of the road. When he was eventually apprehended, his breathalcohol was found to be over the limit for a person under 20. He also did not have adriver's license. Mr Robarts was convicted of eight driving-related charges as a result.He was just under the age of 20 at the time of the offending.[79] The District Court Judge adopted a cumulative approach and imposed a totalof 21 months' disqualification. On appeal, Ellis J referred to the need to considertotality and to the comment of Panckhurst J in Dixon v Police that it "has long beenrecognised that lengthy periods of disqualification frequently prove so daunting for41 Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005 at [31], recently cited withapproval in Robarts v Police [2014] NZHC 666 at [22].42 See Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005 at [32], where Heath J adoptsthis approach.offenders that further offending results".43 Her Honour was satisfied that the 21-monthperiod of disqualification was manifestly excessive and allowed the appeal,substituting a total disqualification period of 16 months.[80] Mr Robarts' driving-relating offending was more serious than that of MsMatangi: he was involved in two police chases, and in the course of one of them hedeliberately reversed into a police car causing damage. Comparing the two cases, itis clear that the total period of 42 months' disqualification imposed in the present casewas manifestly excessive.[81] I consider that a total disqualification period of 18 months should have beenimposed on all charges. As noted above, that should have been structured in thefollowing way:(a) 18 months on the reckless driving charge;(b) six months on the first charge of failing to stop (concurrent with (a));and(c) one year on the second charge of failing to stop (cumulative on (b),concurrent with (a)).[82] I impose no further disqualification period in respect of the charge ofunlicensed driver failing to comply with a prohibition.[83] The disqualification period is to commence from the date of Ms Matangi'srelease from prison.Result[84] The appeal is allowed in part. Ms Matangi's sentence of 28 months'imprisonment remains in place. However, the District Court Judge's ordersdisqualifying Ms Matangi from driving are quashed and a disqualification period of43 Dixon v Police HC Christchurch CRI-2006-409-244, 19 March 2007 at [42], cited in Robarts vPolice [2014] NZHC 666 at [25].18 months is imposed in its place, commencing from the date of Ms Matangi's releasefrom prison._____________Paul Davison J