ERU v NEW ZEALAND POLICE [2019] NZHC `1913

ERU v NEW ZEALAND POLICE [2019] NZHC `1913 [7 August 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-000039[2019] NZHC 1913BETWEEN SHAYDEN ERUAppellantAND NEW ZEALAND POLICERespondentHearing: 6 August 2019Appearances: W Lawson for AppellantM Jenkins for RespondentJudgment: 7 August 2019JUDGMENT OF DUFFY JThis judgment is delivered by me on 7 August 2019 at 3:00 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Lance Lawson, RotoruaCrown Solicitors, Rotorua[1] In the District Court Shayden Eru received an overall sentence ofimprisonment of two years and six months' imprisonment.1 This sentence arose froma series of offending for which he received a mix of cumulative and concurrentsentences.[2] For the offences committed on 23 August 2018 being: (a) male assaults female;(b) breach of a protection order; and (c) driving whilst disqualified (for the tenth time)the Judge adopted a starting point for all these offences of two years' imprisonment.2[3] For the offences committed on 22 September 2018 being: (a) common assault;(b) intentional damage, which were committed while Mr Eru was on bail for the23 August 2018 offending the Judge adopted a starting point of seven months'imprisonment and said he would impose a cumulative sentence because this offendingwas unrelated to the earlier offending on 23 August 2018.3[4] For the offences committed on 26 November 2018 being: (a) driving whilstdisqualified (for the 11th time); and (b) careless driving, the Judge adopted a startingpoint of five months' imprisonment which he uplifted to seven months' imprisonmentto reflect the fact the third offences were committed while Mr Eru was onelectronically monitored bail for the earlier offending.4[5] Mr Eru appealed against the sentences of imprisonment he received on theground they were manifestly excessive as a result of error on the part of his thencounsel, whom he alleged failed to follow instructions. Mr Eru was prepared toparticipate in a restorative justice conference, which may have had a mitigating effecton his sentence. In addition, there was information relevant to mitigation in the formof medical information and counselling information that should have before the Courtbut was not.[6] The Crown has conferred with Mr Eru's counsel and there is agreement thatdue to admitted errors that occurred prior to and at the sentencing it is appropriate for1 New Zealand Police v Eru [2019] NZDC 7126.2 At [14].3 At [15].4 At [16].the appeal to be allowed and the matter referred back to the District Court forsentencing.[7] I am satisfied the admitted errors warrant the appeal being allowed and that thesentencing should proceed afresh.[8] I am also concerned that in arriving at the overall sentence the Judge has doublecounted insofar as aggravating features of the offending against the victim on23 August 2018 were also taken into account by him when assessing the uplift for thedisqualified driving offending on that date as well.[9] The offence of male assaults female and breach of a protection order occurredwhile Mr Eru was driving the victim's vehicle. As part of a continuing course ofconduct he slammed on the brakes a number of times, which resulted in the victimbeing thrown around the interior of the vehicle. He then threatened to crash the vehicleinto some parked vehicles, and he lined up the vehicle he was driving in order to doso. The victim managed to stop Mr Eru before he was able to achieve this outcome,and he then punched her in the face.[10] At [14] of the sentencing notes the Judge said the circumstances of the maleassaults female and breach of protection order offending were serious examples of thattype of offending, which on their own warranted a starting point of twelve months'imprisonment. In saying this the Judge must have been referring to the entirety ofMr Eru's behaviour towards the victim throughout the incident, rather than solely tothe punching which occurred at the end of the incident.[11] The Judge then said, at [14] that the 10th disqualified driving offence wasaggravated by the driving of Mr Eru on that day, which endangered the public and thevictim. The Judge considered this offending would ordinarily warrant a starting pointof 18 months' imprisonment and here he uplifted the initial start point by a further12 months to arrive at a starting point of two years' imprisonment for the 23 August2018 offending.[12] My concern is that features of the bad driving on 23 August 2018 haveinfluenced the choice of starting point for both the male assault female/breach ofprotection order offending and the disqualified driving offending. The impact of thedriving on the victim, and any danger it may also have posed to the public, shouldhave been considered when determining the starting point for the male assaultfemale/breach of protection order offending because the driving was a central featureof this offending. It was part of a continuing course of conduct which started withMr Eru taking control of the victim's vehicle, frightening and threatening her with histhreats of crashing the vehicle and ended with him punching her. Accordingly, for thedisqualified driving offending whilst there needed to be consideration of an uplift torecognise the fact Mr Eru was driving while disqualified when he committed the otheroffences, the consideration should have gone no further than that.[13] The double counting which appears to have occurred is a further reason why Iconsidered the appeal should be allowed.Result[14] The appeal is allowed, and the sentence of two years and six months'imprisonment is set aside.[15] Pursuant to s 251(2)(c) of the Criminal Procedure Act 2011 the matter isremitted to the District Court for Mr Eru to be re-sentenced.[16] The District Court on re-sentencing is directed to take into account the factorsthat I have identified herein.[17] Mr Eru has been granted bail pending re-sentencing on terms set out in aminute issued in this proceeding dated 6 August 2019.Duffy J