RIDDLE v NEW ZEALAND POLICE [2020] NZHC 1706

RIDDLE v NEW ZEALAND POLICE [2020] NZHC 1706 [15 July 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-12[2020] NZHC 1706BETWEEN TERRANCE RIDDLEAppellantAND NEW ZEALAND POLICERespondentHearing: 14 July 2020Counsel: K R Pascoe for AppellantG N Milne for RespondentJudgment: 15 July 2020JUDGMENT OF SIMON FRANCE J[1] Mr Riddle appeals a final sentence of 13 months' imprisonment imposed inrelation to a number of charges.1[2] There are two sets of charges. The first set involves two breaches of prisonrelease conditions. The other set stems from what was initially a driving incident on6 February 2020.[3] The two charges of breach of prison release conditions involve differentcircumstances. In December Mr Riddle sought permission to attend a memorialservice in Taranaki for a relative who had died in Australia. Permission was declined,but Mr Riddle went anyway. The second offence concerns breaches during the Covid-19 lockdown. Arrangements were put in place that people required to report could doso by telephone. Mr Riddle failed to do so on three successive weeks. The summary1 New Zealand Police v Riddle [2020] NZDC 9320.to which he pleaded recorded that he had absconded and his present whereabouts wereunknown.[4] In relation to the second group of charges, on 6 February 2020, just beforemidnight, police activated their flashing lights in order to pull over the car Mr Riddlewas driving. He did not stop and a chase ensued. It lasted 50 minutes, involved speedsup to 160 kph and ended only because Mr Riddle ran out of petrol. The road overwhich the chase occurred is a gorge road with narrow corners, blind spots and at onepoint a one-lane bridge.[5] When arrested following the chase, Mr Riddle was found in possession of0.8 grams of methamphetamine and a single bullet which was for use in a .44 Magnumpistol. Police believed Mr Riddle to be in an impaired condition, but he declined togive a blood sample.[6] Mr Riddle pleaded guilty to all charges in circumstances that saw him receivethe full guilty plea discount.[7] Mr Riddle has a significant criminal record. He is 31 years of age. Since 2010he has received 15 sentences of imprisonment in relation to 19 offences (not countingcurrent offending). Prior to 2010, there was a steady diet of driving offending andlower-level violence and property offending. The most significant jail term is one offive years and three months' imprisonment in 2014 for aggravated robbery. He wasreleased from this sentence on 23 October 2019.[8] Relevant to the present sentencing exercise, Mr Riddle has previously beenconvicted of a large number of driving offences including failing to stop, driving in adangerous manner and drink driving. This offending stopped when he was jailed in2014, but prior to that the driving offending was persistent and regular.Sentencing[9] The sentencing Judge did not identify a lead offence but instead identified asequence of individual starting points for each offence, with all starting points beingcumulated on the others. The sequence was:(a) possession of ammunition, three months (four-year maximum);(b) breach of release conditions, two months for each (12-monthmaximum);(c) failing to stop, two months (three-month maximum);(d) reckless driving, two months (three-month maximum);(e) refusing blood sample, two months (three-month maximum); and(f) possessing methamphetamine, two months (six-month maximum).There was a three-month uplift for "previous breaches of court orders", leaving a totalof 18 months. The Judge did not address totality but applied the guilty plea discountrounded out to five months, leaving the final sentence of 13 months' imprisonment.[10] Each aspect of the process is challenged on appeal with the ultimate questionbeing whether any alleged errors have produced a manifestly excessive sentence.(a) The combined starting point for the offences[11] Within this topic I consider both the various links that produced the 15-monthtotal, and the issue of totality.[12] Ms Pascoe focused initially on the penalties for the driving offending. Shesubmitted the Court erred in identifying a chain of cumulative sentences. Other caseshad approached these groupings of charges by identifying a single figure for thepackage. While I agree the latter approach is possible, and may indeed be morecommon, how the Judge went about the task is of no consequence. The key issue iswhether the figure taken as the appropriate starting point for the three driving offenceswas excessive.[13] The cases to which I was referred involved the combination of flashing lightsand a chase.2 They suggest that for bad examples of reckless driving the maximumreckless driving penalty of three months as a starting point for both offences isappropriate. Here the Judge identified that figure as four months and I agree it ishigher than is needed. Accepting a three-month maximum for the reckless driving isappropriate, I do not consider the failing to stop merited a further month penalty. Asfor the refusal to provide a blood specimen charge, this involves different culpabilityfrom the reckless driving, and was not part of the aggravating features meriting thethree-month starting point. A separate cumulative sentence was appropriate.[14] I consider a four month starting point for the breach of release conditions wasappropriate. The balance could be different in that the breaches during lockdown areparticularly serious whereas the first breach, though wrong, had an underlying contextthat mitigated the poor decision-making. The whereabouts condition is important bothto rehabilitation and public safety. The breaches during lockdown, involving threesuccessive occasions, merited a firm response.[15] On its face the starting point of two months for the possession ofmethamphetamine is too severe. At just below a gram it is not a trivial amount butthere is no suggestion it was other than for personal use by someone with addictionissues. Imprisonment would not be the normal response, and a two-month cumulativesentence is excessive.[16] In relation to the three-month sentence for possession of ammunition, there islittle precedent to be guided by. However, the circumstances of the possession do notindicate particular risk – it is not associated with drug offending nor with any weaponit is known Mr Riddle had access to. It is offending that is plainly towards the bottomend of this type of offending. Again, standing alone it would not attract imprisonment.Given a sentence of imprisonment was to be the overall outcome, some penalty isappropriate but a cumulative sentence of one month would suffice.[17] Applying this analysis to the judgment under appeal, I would adjust thecumulative starting point package downwards by four months, which produces a base2 For example, Sekai v New Zealand Police [2014] NZHC 1348.figure of 11 months' imprisonment. I do not consider totality requires any furtheradjustment to this new figure, but I observe some adjustment for this factor shouldhave occurred in relation to the initial 15 month total. Where the sentencing approachis to cumulate on an individual basis a number of offences, some of which areinterconnected, there should be a totality consideration.(b) The uplift[18] Ms Pascoe challenges the three-month uplift, noting it was expressed to beimposed only as a response to the number of previous breaches of court orders. I agreethat, if that were the sole reason for its imposition, it would be disproportionately high(being 75 per cent of the sentence being imposed for that type of offending).[19] That said, a three-month uplift is appropriate in the overall circumstances ofthe case. Mr Riddle's offending had occurred only around three months after releasefrom a lengthy jail sentence. He was in possession of drugs in breach of his releaseconditions, and he was again driving recklessly and endangering public safety, thisbeing regular conduct prior to his incarceration. There is a clear need for personaldeterrence and protection of the public.[20] With this uplift, the final starting point now becomes one of 14 months.Applying the same guilty plea discount, the end sentence becomes one of 10 monthsand two weeks. I recognise that it could be seen as a relatively small adjustment tomake on appeal, but it is nevertheless a 20 per cent adjustment, which I consider makesthe original outcome manifestly excessive.Outcome[21] Perusal of Mr Riddle's offending history indicates that the sentences finallyimposed do not reflect the sentencing notes. Contrary to the structure discussed in thisjudgment, the Judge signed a warrant that imposed concurrent 10-month sentences forthe breach of release conditions, made the three-month sentence for the possession ofammunition cumulative and then imposed concurrent sentences for the balance.Recognising that occasionally modest corrections may be necessary to give effect tothe intent of the sentencing, I do not consider such a significant change should occuras part of the warrant process, even if the final effective sentence is the same. Asmatters stand there is little correlation between the sentencing remarks and the actualsentences imposed. It further creates an impression of much more serious breaches ofthe release conditions than is the reality.[22] I give effect to the appeal by quashing the sentences of 10 months imposed oneach of the breach of release condition charges and substitute concurrent sentences ofseven and a half months. It would not assist at this stage to further alter the structureof the imposed sentences to better reflect the sentencing remarks. The comments inthe appeal judgment are sufficient explanation for the future of the nature of theoffending should that become of importance.[23] All other sentences are unchanged.[24] The final total sentence is 10 months and two weeks._____________________Simon France JSolicitors:Nicholsons Lawyers, New Plymouth for AppellantCrown Solicitor's Office, New Plymouth for Respondent