RIWAI v NEW ZEALAND POLICE [2018] NZHC 2283

RIWAI v NEW ZEALAND POLICE [2018] NZHC 2283 [31 August 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-000059[2018] NZHC 2283BETWEEN TEPIWA MICHAEL PETER KEREMETERIWAIAppellantAND NEW ZEALAND POLICERespondentHearing: 31 August 2018Counsel: C J Nicholls for AppellantA W M Britton for RespondentJudgment: 31 August 2018JUDGMENT OF COLLINS JIntroduction[1] Mr Riwai was sentenced to two months' home detention for operating a vehiclein a race1 by Judge Tompkins on 22 August 2018 in the District Court at Hutt Valley.2[2] Mr Riwai appeals his sentence on the basis that two months' home detention isthe equivalent of four months' imprisonment, which exceeds the maximum sentence.Summary of offending[3] On 8 March 2018, Mr Riwai was driving a Holden Commodore north onState Highway 2 near Lower Hutt. This stretch of road has a 100 km/h speed limit.1 Land Transport Act 1998, s 36A(1)(a); maximum penalty three months' imprisonment.2 New Zealand Police v Riwai [2018] NZDC 17883.Mr Riwai held a learner licence at the time, and was driving in breach of the conditionsof that licence as he was not accompanied by a fully licenced person. He was,however, accompanied by his partner, who holds a restricted licence.[4] Somewhere between Avalon and the Haywards Hill interchange, the driver ofanother Holden Commodore pulled up alongside Mr Riwai. The two drivers thenengaged in a race, with Mr Riwai reaching speeds of 212 km/h, and the other driverreaching speeds of 186 km/h. There were other vehicles present on the road at thistime. The two vehicles were observed by a stationary police officer, who "clocked"their speeds using speed detection equipment. Mr Riwai was then stopped andarrested. His licence was suspended and his Holden Commodore was impounded.[5] Mr Riwai explained to police that he had thought he had recognised the otherdriver and wanted to get away from him. However, he admitted that this developedinto a race and he accepted that this was dangerous to the public and to himself.District Court decision[6] Judge Tompkins sentenced Mr Riwai to two months' home detention anddisqualified him from driving for 18 months. In imposing this sentence, the Judgereferred to Mr Riwai's driving history:3In November 2016 Mr Riwai was sentenced to imprisonment for a number ofcharges which included dangerous driving, failing to stop for red and blueflashing lights, failing to stop to ascertain injury, and a separate incident ofdangerous driving. Mr Riwai [also has] convictions for dangerous driving in 2004 and 2006,and, in addition, has a number of convictions for driving whilst disqualifiedand driving whilst suspended.Sentence appeals[7] Section 250 of the Criminal Procedure Act 2011 requires the Court to allow anappeal against sentence if:3 New Zealand Police v Riwai, above n 2, at [4]–[5].(1) for any reason, there is an error in the sentence imposed on conviction;and(2) a different sentence should be imposed.[8] The Court of Appeal has explained that whether a sentence is "manifestlyexcessive" continues to be an important guide to finding an error.4 The Court ofAppeal has also explained:5The discretion to vary [a] sentence [on appeal] is not unfettered; this Courtdoes not embark upon the sentencing afresh nor substitute its own opinion forthat of the original sentencer. There must be an error vitiating the exercise ofthe original sentencing discretion. In short, this Court must proceed on an"error principle".[9] If the end sentence is within range, then the appeal court will not change it,even if the lower court made an error in the steps it took to reach that end sentence.6Grounds of appeal[10] The appeal is advanced on the basis that two months' home detention is theequivalent of four months' imprisonment, which exceeds the maximum sentence.Mr Riwai objects to the fact he was not given a discount to reflect his guilty plea.Submissions[11] Mr Nicholls, counsel for Mr Riwai, takes no issue of the fact that a sentence ofhome detention was given, but objects to the length of that sentence. He accepts thata starting point around the maximum sentence of three months' imprisonment waswarranted, but submits that Judge Tompkins gave no express discount for his guiltyplea. He also submits that the end sentence of two months' home detention wasmanifestly excessive because the equivalent sentence of imprisonment would be overthe three-month maximum penalty for the offence.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].5 At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].6 Ripia v R [2011] NZCA 101 at [15].[12] Mr Nicholls accepts that the Court of Appeal in R v Bisschop held that thepractice of halving a notional sentence of imprisonment to determine the appropriatelength for a sentence of home detention is just a convention (the halving convention).7However, he seeks to distinguish cases that have differed from the halving convention8from the present case on the basis that those cases did not involve a sentence that waseffectively over the maximum penalty. He seeks to draw an analogy with Gerrard vPolice, where Nation J allowed an appeal on the basis that the halving convention hadnot been followed in the context of a pre-existing statutory release date.9 Mr Nichollssubmits that failing to take into account the statutory release date is similar to failingto take into account the maximum penalty.[13] Mr Nicholls submits that a sentence of five weeks' home detention would havebeen appropriate in this case.AnalysisGerrard v Police[14] I do not regard the decision in Gerrard v Police as helpful in the presentcircumstances. I do not understand Nation J to have been departing from theestablished principles set out by the Court of Appeal in Bisschop. I note that Moore Jmade the same observation about Gerrard v Police in Henry v Police.10[15] The context for Gerrard v Police was that the defendant had successfullyappealed his 25-month sentence of imprisonment and had applied to the District Courtto have his new sentence of 23 months' imprisonment substituted for home detention.The District Court substituted a sentence of eight months' home detention, taking intoaccount seven months that the defendant had already served in prison. The effect ofthis was that the defendant's home detention would not have ended untilapproximately three months after what would have been the statutory release date.7 R v Bisschop [2008] NZCA 229 at [18]–[19].8 Referring to Henry v Police [2018] NZHC 394; and R v Caine [2014] NZHC 2330.9 Gerrard v Police [2016] NZHC 3130.10 Henry v Police, above n 8, at [29].[16] While Nation J's judgment focused on the statutory release date, it is clear fromreading the judgment that the District Court Judge had intended to apply the halvingconvention, but made a mistake in the subsequent calculations. Had the District Courtapplied the right methodology it would have reached an end sentence of five months'home detention, which is what Nation J imposed on appeal.[17] Accordingly, the result in Gerrard v Police is best understood as the correctionof a mathematical error that arose out of the need to account for time served whenresentencing a defendant to home detention. It was not a case where the sentencingJudge deliberately departed from the halving convention. Nation J's comments shouldnot be read as detracting from the general principle in Bisschop, nor should they beread as creating a general requirement for a sentencing Judge to give reasons fordeparting from the halving convention. As Moore J observed in Henry v Police, inapproximately half of the relevant cases, the sentencing Judge did not give reasons fordeparting from the halving convention.11 Moore J concluded that it was "bestpractice" to give reasons, but that a failure to do so would not be fatal on appeal.12Maximum penalties[18] The question in this case is whether the maximum penalty has any relevancein setting the length for a sentence of home detention. Section 80A of the SentencingAct 2002 provides that the Court may set the length for a sentence of home detention"for such period as the court thinks fit" between 14 days and 12 months. The Courtwill exercise this discretion by engaging in an "evaluative assessment of all thecircumstances" including the purposes and principles of the Sentencing Act.13 It maywell be that in the majority of cases, this assessment will coincide with half of thesentence of imprisonment that would otherwise have been imposed, but this will notalways be the case. In that respect, the process of halving is a useful convention, butnothing more.[19] For this reason, I do not consider that a sentencing Judge is constrained by halfof the maximum prison sentence when setting the length for a sentence of home11 Henry v Police, above n 8, at [36].12 At [37].13 R v Bisschop, above n 7, at [18].detention. Nor, in line with my comments above, do I consider that the maximumpenalty is a mandatory consideration in setting that length. As such, a sentencingJudge is not required to provide reasons for departing from the halving conventionmerely because (under that convention) the length of the sentence equates to close tothe maximum sentence of imprisonment that could have been imposed.Mr Riwai's sentence[20] Following that approach, I do not see how the appeal can be allowed.Mr Nicholls submits that the length of Mr Riwai's sentence should be reduced by threeweeks, while otherwise taking no issue with the kind of sentence imposed. Accedingto that request would amount to tinkering with the sentence. That is not the role of anappellate court.[21] In any case, I am not convinced a different sentence should have been imposed.Two months' home detention was an appropriate sentence for Mr Riwai taking intoaccount all the circumstances and the principles of sentencing:(1) Mr Nicholls rightly accepted that Mr Riwai's offending was one of themost serious cases of its kind, involving speeds over twice the legallimit in the presence of other road users. In such circumstances, asentence close to the maximum penalty must be imposed.14(2) Mr Riwai has several relevant previous convictions, including four fordangerous driving, one for careless driving, four for driving whiledisqualified, two for failing to stop and one for driving with excessblood alcohol.15(3) Although Mr Riwai pleaded guilty, the pre-sentence report records thathe did not appear to display any remorse and displayed a sense ofentitlement and impulsivity. He also maintains his denial that what hewas involved in was a race.14 Sentencing Act 2002, s 8(d).15 Section 9(1)(j).(4) The pre-sentence report assessed Mr Riwai's risk of offending asmedium and his risk of harm to others as high.16[22] A sentence of two months' home detention:(1) holds Mr Riwai accountable;17(2) denounces his conduct;18(3) deters him and others from similar offending;19 and(4) is the least restrictive outcome that is available in the circumstances.20[23] While I am mindful of the fact that Judge Tompkins did not expressly refer toMr Riwai's guilty plea, I am nevertheless satisfied for the reasons I have already giventhat the end sentence was within the available range. For that reason, it cannot be saidthat a different sentence should be imposed, and so the appeal must be dismissed.Result[24] The appeal is dismissed._____________________D B Collins JSolicitors:Chris Nicholls, Lower Hutt for AppellantCrown Solicitor, Wellington for Respondent16 Sentencing Act 2002, s 7(f) and (g).17 Section 7(1)(a).18 Section 7(1)(e).19 Section 7(1)(f).20 Section 8(g).