TOHU v NEW ZEALAND POLICE [2021] NZHC 2660

TOHU v NEW ZEALAND POLICE [2021] NZHC 2660 [6 October 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2021-488-30CRI-2021-488-31[2021] NZHC 2660BETWEEN RANGI TOHUAppellantAND NEW ZEALAND POLICERespondentHearing: 6 October 2021Counsel: S M Nicholson for appellantT N Fai'ai for respondentJudgment: 6 October 2021JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 6 October 2021 at 12.30pmRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Stephen Nicholson, Kerikeri for appellantCrown Solicitor, Whangārei for respondent[1] Mr Tohu pleaded guilty to the following charges:(a) careless driving;1(b) two of unlawful possession in a public place of a firearm andammunition;2(c) driving with excess blood alcohol content;3(d) reckless driving causing injury;4(e) assault on a person in a family relationship;5(f) three of failing to comply with a prohibition given by an enforcementofficer.6[2] Mr Tohu was sentenced by Judge Harvey in the District Court at Kaikohe on2 August 2021 to a total effective end sentence of two years, nine months'imprisonment and disqualified from driving.7 He appeals against his sentence on theground that it is manifestly excessive.Background[3] The offending occurred on three distinct occasions.[4] First, in the evening of 13 January 2021, Mr Tohu was driving a car on themain street of Kaikohe. On 22 September 2010, he had been forbidden to drive untilhe obtained a driver licence. While driving the car in Kaikohe, he had crossed thecentre line and collided with an oncoming car travelling toward him. The driver of1 Land Transport Act 1998, s 37(1). Maximum penalty: $3,000 fine and disqualification for suchperiod as court thinks fit.2 Arms Act 1983, s 51. Maximum penalty: three years' imprisonment or fine of $4,000 or both.3 Land Transport Act 1998, s 56(2). Maximum penalty: three months' imprisonment or fine of$4,500 and disqualification for six months or more.4 Land Transport Act 1998, s 36(1)(a). Maximum penalty: five years' imprisonment or a fine of$20,000 and disqualification for one year or more.5 Crimes Act 1961, s 194A. Maximum penalty: two years' imprisonment.6 Land Transport Act 1998, s 52(1)(c). Maximum penalty: fine of $10,000.7 Police v Tohu [2021] NZDC 15705.that car lost control and crashed into a parked car. Mr Tohu departed the site of theaccident. When Police arrived, they searched his car and found a .22 rifle with a roundin the chamber. Police subsequently located Mr Tohu in a nearby street. He was onthe ground and unresponsive. An evidential blood alcohol test was performed inhospital which returned a result of 198 milligrams of alcohol per 100 millilitres ofblood. Mr Tohu pleaded guilty to driving with excess blood alcohol content; carelessdriving; the firearms charges and being an unlicensed driver who failed to comply witha prohibition from driving.[5] Second, Mr Tohu was seen driving a car near Moerewa on 4 April 2021. Hepleaded guilty to being an unlicensed driver who failed to comply with the prohibitionhe had been given.[6] Third, late in the morning on 29 May 2021, Mr Tohu was driving nearMoerewa. He was still an unlicensed driver who failed to comply with the prohibitionhe had been given. There was a passenger in the car with him. Mr Tohu drove atspeed, in excess of the posted speed limit, and crossed the centre line. He lost controlof the car on two occasions intentionally before regaining control. On the thirdoccasion, he skidded while taking a corner far too fast, lost control and collided witha tree. His passenger suffered severe injuries, including a shattered left foot, multiplebroken ribs, lacerations and bruising to her right arm and a blood clot on her brain.[7] He and his passenger were admitted to Whangārei Hospital. There they shareda room. There was an argument between them. Mr Tohu attempted to stab her with abread and butter knife while they were both lying in adjacent beds. Mr Tohu pleadedguilty to reckless driving causing injury, driving while prohibited and assault on aperson in a family relationship. A blood specimen was also taken from Mr Tohu foranalysis. Testing established the presence of methamphetamine.District Court sentencing[8] Judge Harvey convicted and discharged Mr Tohu on the three charges ofdriving in breach of a prohibition.[9] After setting out the details of the offending, the Judge indicated he wasprepared to give the full 25 per cent discount for guilty pleas even though they had notbeen entered at the first opportunity.[10] Judge Harvey dealt with the January 2021 offending first. He settled on sixmonths' imprisonment for the two firearms offences and one month's imprisonmentfor the excess blood alcohol charge. The Judge imposed disqualifications of threemonths on the careless driving charge and 28 days on the excess blood alcohol charge.Although Judge Harvey said he would give Mr Tohu "full credit" for his pleas ofguilty, he did not follow the sentencing methodology mandated by the Court of Appealin Moses v R.8 That means that it is necessary to infer that he applied a plea discountof 25 per cent, being the maximum permissible,9 before settling on the sentence of sixmonths' imprisonment. Moreover, the Judge did not say that the firearms sentenceswere to be served concurrently, but that must be inferred from the total end sentenceimposed on the January charges.[11] Turning to the May 2021 charges of reckless driving causing injury and assault,Judge Harvey acknowledged the seriousness of the injuries caused to the passengerand arrived at what he described as a "starting point" of three years' imprisonment.After adjusting the sentence for Mr Tohu's guilty pleas, the Judge imposed a sentenceof two years, three months' imprisonment on the reckless driving charge withdisqualification for 12 months and a standalone concurrent sentence of one month'simprisonment for the assault charge.[12] The Judge said that the sentences of six months' imprisonment for the Januaryoffending and two years and three months' imprisonment for the May offending wouldbe served cumulatively, meaning that the total effective end sentence of imprisonmentis for two years and nine months.8 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].Approach on appeal[13] An appeal against sentence is brought pursuant to s 244(1) of the CriminalProcedure Act 2011. This Court must allow the appeal if it is satisfied that, for anyreason, there is an error in the sentence imposed on conviction and that a differentsentence should be imposed.10 The appellant must point to the error and the Court willconsider whether it is material and whether it has resulted in a manifestly excessivesentence. In assessing whether a sentence is manifestly excessive, the focus is onwhether the sentence imposed is within range, rather than the process by which it wasreached.11Submissions[14] Mr Nicholson, for Mr Tohu, advances a single ground of appeal against thestarting point for the May reckless driving offending only. He submits the startingpoint of three years' imprisonment was too high and that the correct starting point forMr Tohu's offending was two years. He points to other cases where starting points ofthree years or more were adopted and says the offending in those cases was moreserious than Mr Tohu's offending. Mr Nicholson also observes that Mr Tohu'sprevious convictions for driving offences are limited. Counsel says the guilty pleadiscount of 25 per cent would reduce the adjusted sentence to 18 months'imprisonment and the end sentence should have been two years' imprisonment.Discussion[15] Only the starting point for the May 2021 offending is in issue in this appeal,but the Judge's approach to explaining the reasons for the sentences imposed on anarray of charges makes it difficult to identify the starting point and the adjustmentsthat led to the effective end sentence imposed for that group of charges.[16] In Moses, the Court of Appeal laid out a two-step approach to sentencing inthese terms:1210 Criminal Procedure Act 2011, s 250(2).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[36].12 Moses v R, above n 8 (footnotes omitted).[46] A two-step methodology should be used:(a) the first step calculates the adjusted starting point,incorporating aggravating and mitigating features of theoffence;13(b) the second step incorporates all aggravating and mitigatingfactors personal to the offender, together with any guilty pleadiscount, which should be calculated as a percentage of theadjusted starting point.[47] Because the court fixes all second-step uplifts and discounts byreference to the adjusted starting point under this methodology, it makes nodifference to sentence length if the guilty plea discount is the last step in thesentence calculation. However, the sentencing judge should still quantify aguilty plea discount, for several reasons: the discount is justified in substantialpart by systemic and social considerations distinct from the offender'spersonal circumstances; the discount must be transparent, which aidspredictability; and the calculation allows others, including the offender andthe victim, to identify the sentence that would have been imposed but for theplea. It should be apparent that the discount does not exceed the maximum of25 per cent of the adjusted starting point.[48] This methodology does not preclude credit for some mitigating factorsbeing assessed by reference to what would otherwise be the end sentence (thatis, the product of step 2), where that is appropriate. For example, credit fortime spent on electronically monitored bail is commonly calculated in thatway.[17] The approach described is founded on a single charge. It allows the Court tomake clear its view of the seriousness of the offending, including taking account ofaggravating features such as offending on bail and prior convictions that might call foradded deterrence by applying an uplift to the initial starting point. The approach thenrequires the sentencing court to make appropriate adjustments based on anyaggravating or mitigating factors applying to the offender personally, such as takinginto account the offender's youth; remorse; steps towards rehabilitation includingtreatment for any relevant addiction; attempts (successful or otherwise) at restorativejustice, together with an identified, separate percentage discount for a guilty plea.Where there are multiple charges, the total effective end sentence would be reachedeither by applying an uplift to the end sentence reached for the lead charge so that thesentences would be served concurrently or, where the charges arose from entirely13 I interpolate that any uplifts for aggravating features such as offending on bail and priorconvictions calling for added deterrence are included in the adjustment at this step.separate incidents, by adopting the two-step methodology for each and imposingcumulative sentences, bearing in mind totality principles.[18] As the Court of Appeal said at [47] of Moses, sentencing judges shouldquantify a guilty plea discount separately from other factors, for the reasons given inthe judgment, including making it apparent that the discount for the plea does notexceed the maximum allowable under Hessell principles.14[19] I accept that a District Court Judge sentencing an offender in a busy sentencinglist, on a raft of charges of varying degrees of seriousness spread over separateoccasions of offending, may not have the time to fully explain the reasons for asentence, at least compared to that which might be afforded to a judge taking a lesspressured approach on appeal. But it is apparent here from the way in whichMr Nicholson has been required to argue the appeal, and the Crown to resist it, thatthe more transparent analysis required by the Moses approach would have led to agreater understanding on the part of Mr Tohu and his counsel that what might haveseemed to be a starting point that was out of kilter with other cases was in fact withinthe range available to the Judge.[20] I do not think Judge Harvey adopted a starting point of three years'imprisonment that was intended to address only the reckless driving charge. As theexperienced judge would have recognised, an uplift for the totality of the offending on29 May 2021, including the appalling attack on Mr Tohu's injured partner while shewas in hospital, had to be marked by the Court in some clear way. That is underscoredby Mr Tohu's many prior convictions for violent offending, particularly familyviolence, which in itself warranted a stern sentence.[21] In short, I think the Judge's reasoning was not reflected in a clear explanation,but I am satisfied, for the reasons I will explain, that the outcome was within the rangeavailable to the Judge and not manifestly excessive. To reach that conclusion, I haveapplied the Moses approach to the charge of reckless driving on 29 May 2021, whichis the lead charge for the offending that day.14 Hessell v R, above n 9, at [75].[22] Adopting that approach, I would set a starting point for the reckless drivingoffence which accords with the purposes and principles of sentencing, then adjust thatstarting point for the totality of the offending by applying an uplift for the assaultcharge that takes account of Mr Tohu's prior convictions for violence. The discountof 25 per cent for guilty pleas (which, in my view, was generous) would be applied tothat starting point. There are no mitigating personal factors.[23] Looking at the initial starting point, Ms Fai'ai submits the aggravating factorsidentified in Gacitua v R assist in determining a starting point for reckless driving.15 Inote the Court of Appeal in that case referred to the decision of the Court of Appeal ofEngland and Wales in R v Cooksley,16 but was clear that the guidelines identified therewere useful only for considering aggravating and mitigating factors. The Court ofAppeal did not endorse the sentencing bands.17[24] Among the relevant aggravating factors in this case were the presence ofmethamphetamine in Mr Tohu's blood test results; excessive speed; ignoring warningsfrom his passenger; and a prolonged, persistent and deliberate course of very baddriving. Further, Mr Tohu habitually drove while unlicensed and caused serious injuryto his passenger.[25] Mr Nicholson has filed a large number of case summaries with hissubmissions. Three of the reckless driving cases assist in identifying an appropriatestarting point.[26] First, in Tamehana v R the defendant pleaded guilty to six charges of recklessdriving causing injury and other offending.18 The sentencing Judge took a startingpoint of three years' imprisonment for all of the offending, which was upheld by thisCourt on appeal. The facts of the offending were that the defendant drove on openroads and through a township at speeds far in excess of the posted limits. When takinga bend, he lost control of the car, crossed the centre line and collided with a cartravelling in the opposite direction.15 Gacitua v R [2013] NZCA 234.16 R v Cooksley [2003] 3 All ER 40 (Crim App) at [5].17 Gacitua v R, above n 15, at [29].18 Tamehana v R [2019] NZHC 2850.[27] The occupants of that car – the driver and her three young children – andpassengers in the defendant's car all suffered injuries which were described asmoderate to serious and required hospital treatment. The driver of the other carsuffered the most significant injuries, which included numerous broken bonesrequiring at least two sessions of surgery. Her recovery was slow and difficult. Oneof her children suffered a serious head injury requiring surgery to his skull. It is clearthis was offending at the more serious end of the scale.[28] Second, in Walshe v Police the defendant pleaded guilty to a large number ofdriving charges, including two of reckless driving causing injury, and other charges(offensive weapon, possession of controlled drugs and dishonesty).19 The sentencingJudge settled on a starting point of two years, eight months' imprisonment for thereckless driving charges which was upheld by this Court on appeal. The relevantoffending occurred when the defendant, pursued by Police, crossed the centre line,drove through a red light and crashed into another car occupied by three people. Twoof them required hospital treatment. One suffered a facture and bruising and the otheronly bruising. The driving in this offending is marginally more serious than Mr Tohu'soffending. The passenger in Mr Tohu's car appears to have suffered more seriousinjuries than the two people who were injured in Walshe, one much less seriously.[29] Finally, in Hazel v Police the defendant also pleaded guilty to a charge ofreckless driving causing injury and other charges (including family violenceoffending).20 The sentencing Judge adopted a starting point of 24 months'imprisonment which this Court considered within the available range. The facts whichgave rise to the reckless driving charge were that the defendant was signalled by Policeto stop. He did not, driving off at high speed. The crash occurred when he was drivingon the wrong side of the road. The car became airborne and when it landed he lostcontrol and crashed into a house. The two passengers in the car with him bothsustained serious injuries.[30] My assessment is that Mr Tohu's offending falls somewhere between Walsheand Hazel. In both of those cases, an aggravating feature of the offending was the19 Walshe v Police [2019] NZHC 3068.20 Hazel v Police [2020] NZHC 609.effort by the defendant to evade Police that is not present in this case. However, thoseinjured in Walshe suffered less serious injuries than the passenger in Mr Tohu's car.And while the passengers injured in Hazel did suffer serious injury, I do not considerthey were as serious as in this case. It is a matter of degree but the injuries hererequired more significant treatment; recovery from them would have been challengingand arduous. Having regard to those cases, I consider a starting point of 30 monthswould be appropriate.[31] Taking account of totality, an uplift of at least six months' imprisonment isjustified for the assault and related driving charge. The assault was particularly seriousgiven the injuries the victim was dealing with and her vulnerability arising from thoseinjuries. She ought to have been safe in hospital. A six-month uplift for the assault ismore than justified to account for Mr Tohu's extensive history of family violenceoffending. That is an issue he needs to address if he is to avoid lengthy prisonsentences in future.[32] From the adjusted starting point of 36 months' imprisonment, I would applythe 25 per cent discount for guilty pleas, to reach an effective end sentence of27 months' imprisonment.[33] This is the sentence the Judge imposed on these charges. A starting point ofthree years' imprisonment for reckless driving would have been outside the availablerange if the Judge had sentenced solely on the reckless driving charge. But takingaccount of the totality of the offending and Mr Tohu's personal circumstances, the endsentence on the May 2021 charges was not manifestly excessive.[34] Given there was no dispute on the sentence for the other charges, or that thesentence for those charges should be served cumulatively, the final sentence of twoyears and nine months' imprisonment was within the available range.Result[35] I dismiss the appeal.Toogood J