RIWAI v NZ POLICE [2017] NZHC 301

RIWAI v NZ POLICE [2017] NZHC 301 [1 March 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI 2016-485-96[2017] NZHC 301BETWEEN TE PIWA MICHAEL RIWAIAppellantAND NEW ZEALAND POLICERespondentHearing: 28 February 2017Counsel: C J Nicholls for AppellantS T A Ellis for RespondentJudgment: 1 March 2017JUDGMENT OF ELLIS J[1] On 23 November 2016 Mr Riwai was sentenced by Judge Butler to a total oftwo and a half years' imprisonment on a number of offences committed over a six month period.1 He appeals on the basis that the sentence was manifestly excessive.Facts[2] For reasons that are not presently material, on 16 July 2015 Mr Riwai agreed to go to the Palmerston North police station in a police car. When he arrived at the station, he got out of the car, ran along the street and approached another car. He opened the door, grabbed the driver by her arm, and tried pulling her out of the seat several times. She and her mother screamed at him to go away.1 Police v Riwai [2016] NZDC 24032.[3] He then approached another car, opened the driver's door, got into the seatand started the engine. The owner ran up to the car and opened the passenger door, telling him to get out of the car, which contained a number of valuable personal items. Mr Riwai did not get out. Instead, he reversed onto the road, continuing to ignore her protestations. Mr Riwai drove the vehicle along the footpath, pulled out into the flow of traffic in front of another car, causing it to brake suddenly. The car driven by Mr Riwai collided with the other car, causing minor damage. These events gave rise to:(a) one charge of unlawful taking of a motor vehicle;(b) one charge of assault with intent to rob;(c) one charge of theft of property over $1000; and(d) one charge of dangerous driving.[4] On 24 January 2016, Mr Riwai was driving and refused to stop when signalled by police. He drove at over 100 kilometres per hour in a 50 kilometres per hour zone. He passed another vehicle crossing yellow lines. He then entered Paekakariki township and was located by police in a house there. They found a glass pipe used for consumption of methamphetamine. These events led to charges of:(a) possession of a utensil;(b) failing to stop; and(c) dangerous driving.[5] At this time there was also an outstanding warrant for Mr Riwai's arrest. On 29 January, he was approached by police. He ran away, chased by an officer. Three times he opened car doors and tried to coerce the drivers from their cars so that he could escape. He was chased by an officer into premises occupied by VTNZ. He grabbed an 18 inch screwdriver, brandished it at the policeman, causing him to back off. Mr Riwai then got into a Mazda, whose keys were in the ignition. He tried tostart it and drive off, but was stopped by staff and the police officer. These events led to charges of:(a) careless driving; and(b) failing to stop or ascertain injury;(c) assault with a weapon (the screwdriver); and(d) attempted unlawful taking of a motor vehicle (x4).[6] Mr Riwai was remanded in custody from the time of his last arrest on 29 January 2016. He then sought a sentence indication which was scheduled for 4 May 2016. Again, for reasons that are not presently relevant, that did not proceed. Instead, Mr Riwai entered guilty pleas to the charges presently at issue on that day. As I understand it, sentencing was delayed by his trial on other charges, which resulted in acquittals.Sentencing in the District Court[7] For the 16 July 2015 offending, Judge Butler took a collective starting point of one year and nine months. He gave a three month uplift for previous offending and said he would discount that by 20 per cent for Mr Riwai's guilty plea. It is accepted, however, that the discount actually given was 25 per cent. The resulting sentence for these three offences was 18 months on each, to be served concurrently.[8] In relation to the later offending the Judge imposed a cumulative sentence of one year's imprisonment on the 29 January 2016 assault with a weapon (screwdriver) charge, noting that he was taking totality into account. The Judge imposed short-term, concurrent, sentences for the other offences.2[9] The effective end sentence was therefore two and a half years' imprisonment.2 Mr Riwai was convicted and discharged on the careless driving charge. He was also disqualified from driving for various periods.The appeal[10] As far as the first tranche of offending is concerned Mr Nicholls initially took issue with the 20 per cent discount for Mr Riwai's guilty plea. He accepted,however, that given the Judge actually applied a full 25 per cent discount this aspect of the sentence could not realistically be impugned.[11] The real focus of Mr Riwai's appeal was therefore on the 12 month cumulative sentence imposed in relation to the assault with a weapon charge. Essentially Mr Nicholls says that:(a) twelve months is too high when compared with other similar cases;3and(b) the Judge did not give Mr Riwai a discount for his guilty plea; and(c) the Judge wrongly did not take account of the contents of a Drug and Alcohol Assessment report which disclosed that:(i) Mr Riwai may well be suffering from PTSD due to traumatic events in his past; and(ii) the offending in January 2016 appears to have been fuelled by his excessive methamphetamine use following one of these events, namely the death of a close friend in a car accident;(d) the Judge should also have taken into account the positive steps taken by Mr Riwai towards addressing his addictions (which are undoubtedly causative of his offending) during his period on remand. These steps were noted in the PAC report.[12] Mr Nicholls says that a cumulative sentence of no more than six months'imprisonment was appropriate here.3 Mr Nicholls referred in particular to Hamiora v Police [2013] NZHC 98; Manuel v Police[2014] NZHC 2648; and Waa v Police HC Masterton CRI-2004-435-2, 21 May 2004.[13] The sentencing notes do not make it clear how the Judge arrived at the 12 month sentence for the assault with a weapon charge. All that can be said is that the Judge considered that that was an appropriate sentence once totality had been taken into account. It is not possible to say categorically that he did not take MrRiwai's guilty pleas into account in arriving at it. But in any event, the real andcentral question is whether, in the circumstances of Mr Riwai's case, the end sentence for all his offending can be said to be within the available range; the method by which a sentencing judge arrives at a particular sentence is not determinative.Discussion[14] Putting to one side the issue of totality (to which I later return) I do not propose to say anything more about the sentence imposed for the first tranche of offending. As I have said, Mr Nicholls did not ultimately dispute that it was within range.[15] If the sentencing on the second tranche were to be viewed in isolation from sentencing on the first I agree that the three cases relied on by Mr Nicholls are instructive in terms of the appropriate starting point for the index (assault with a weapon) offence.[16] Hamiora involved a threat with a firearm. There was another charge of attempting to pervert the course of justice, relating to threats subsequently made against the victim. A starting point of 15 months on the assault with a weapon charge was uplifted by three months for previous convictions and discounted by 25 per cent for the guilty pleas, giving an end sentence of 13 months' imprisonment.4The sentence was upheld on appeal.[17] In Manuel, a police officer noticed Mr Manuel getting into a stolen car. He spoke to him and put his hand through the window and on to his shoulder, and told him he was under arrest. Mr Manuel started the car, backed it up and then drove it hard at the officer, who received a blow to the thigh and only avoided more serious4 There was also a cumulative sentence of 18 months' imprisonment for attempting to pervert thecourse of justice, resulting in a total sentence of two years and seven months.injury by jumping out of the way. Mr Manuel drove away on the wrong side and through a pedestrian crossing at 60 kilometres per hour. He was found guilty following a defended hearing of receiving, escaping lawful custody, reckless driving and assault with a weapon.[18] The District Court imposed both a starting point and a total sentence of three years on the assault with a weapon charge, with concurrent sentences on the other charges. Moore J substituted a sentence of two years and six months, saying that the assault with a weapon charge should have attracted a starting point of 18 months. The Judge referred to the decision in Waa (below) and said that a three year starting point was outside the available range.[19] In Waa, the appellant was clocked speeding at just under 130 kilometres per hour and was pursued by police. He stopped while the officer approached. He then drove off at high speed refusing to stop. When he eventually pulled over, the officer remained in his car. Mr Waa got out of the car and charged the patrol car brandishing a crow bar. The officer reversed to avoid confrontation. Mr Waa returned to his car, turned it, then drove directly at the patrol car. He drove off, stopped again and turned around before driving on the wrong side of the road straight towards the police car, swerving at the last second to avoid a head-on collision. He then repeated this manoeuvre. He was sentenced to a total of 38 months' imprisonment, which the High Court upheld, comprising the following cumulative sentences:(a) assault with a weapon (crowbar): 14 months (with concurrent sentences for reckless driving, possession of a crowbar, and theft of a vehicle);(b) assault with a weapon (car): 18 months; and(c) possession of a shotgun: six months.[20] I agree that the assault with a weapon offending in Manuel was somewhatmore serious than Mr Riwai's. In my view it was more on a par with Hamiora andWaa and (on a comparative basis) would warrant a starting point of around 13 or 14 months' imprisonment. Equally, however, given the other offending within the second tranche, and both the fact that Mr Riwai was on bail at the time of that offending and that there was a warrant out for his arrest, an uplift of between three and four months could, in my view, easily be justified.[21] I also agree that Mr Riwai was entitled to a full discount for his guilty plea and that it is appropriate to recognise (insofar as is permissible) his remorse, his commendable rehabilitative efforts and the part that mental health had to play in his offending. But even then it would be difficult to arrive at an end sentence materially below 12 months.5 And when viewed in light of tranche one and the totality principle, it becomes impossible to say that the total sentence was outside of the available range.[22] As I have said, it is important to acknowledge the particular challenges that Mr Riwai has faced and the solid efforts he has made and is now continuing to make to take control of his life. But in the end I am unable to conclude that the sentence imposed by the learned District Court Judge was manifestly excessive.[23] The appeal is dismissed accordingly._________________________Rebecca Ellis J5 An end point of 12 months would involve a discount of one or two months for these factors, in addition to the guilty plea discount.