HIKAKA v NEW ZEALAND POLICE [2020] NZHC 716

HIKAKA v NEW ZEALAND POLICE [2020] NZHC 716 [7 April 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2019-454-23[2020] NZHC 716TOBY BRYAN HIKAKAvNEW ZEALAND POLICEHearing: 7 April 2020Appearances: W Kronast for the AppellantJ Harvey for the RespondentJudgment: 7 April 2020JUDGMENT OF COOKE J[1] On 27 August 2019 Mr Hikaka was sentenced before Judge Rowe in theDistrict Court at Palmerston North to 19 months' imprisonment for the followingcharges:1(a) Two charges of breach of community detention,2(b) One charge for breach of intensive supervision,3(c) Three charges of theft (under $500),41 New Zealand Police v Hikaka [2019] NZDC 16907.2 Sentencing Act 2002, s 69G, maximum penalty six months' imprisonment or $1,500 fine.3 Section 70(A)(a), maximum penalty six months' imprisonment or $1,500 fine.4 Crimes Act 1961, s 219 and 223(d), maximum penalty three months' imprisonment.(d) One charge of intentional damage,5(e) Two charges of driving contrary to an alcohol interlock licence,6(f) One charge of driving in a dangerous manner,7 and(g) One charge of failing to stop for red/blue flashing lights whileexceeding the applicable speed limit.8[2] Mr Hikaka appeals his sentence on the grounds that the District Court erred infailing to grant Mr Hikaka leave to cancel his sentence of imprisonment.[3] For the reasons set out in my decision in White v New Zealand Police, the Courtretains the jurisdiction to make decisions such as bail decisions, or decisionsconcerning substituting a sentence of imprisonment for home detentionnotwithstanding the COVID-19 situation.9 The COVID-19 situation may, however,affect the decision the Court should make. For example the Court may need to haveinformation to be satisfied that the bail address, or home detention address, remainssuitable notwithstanding the COVID-19 situation.10[4] By memorandum dated 6 April 2020 the respondent suggested that this appealshould be adjourned in light of such considerations. I declined that application as it isimportant that the Court proceed to deal with important matters, such as mattersaffecting the liability of the person, notwithstanding the COVID-19 situation.Factual background[5] The two breaches of community detention relate to two instances whereMr Hikaka returned to his address after curfew. On 30 December 2018 Mr Hikaka5 Section 269(3), maximum penalty seven years' imprisonment.6 Land Transport Act 1998, ss 32(1)(b) and 32(3), maximum penalty three months' imprisonmentor $4,500 fine.7 Section 35(1)(b), maximum penalty three months' imprisonment or $4,500 fine and minimum sixmonth disqualification.8 Sections 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2), maximum penalty $10,000 fine and six monthdisqualification.9 White v New Zealand Police [2020] NZHC 684 at [11]–[15].10 At [24]–[26].returned home almost an hour late. Prior to that occasion Mr Hikaka had returned latealmost every day prior for the previous week despite repeated warnings from his paroleofficer. Then in early January, non-compliance with curfew continued. On 6 JanuaryMr Hikaka returned home late. On 7 January Mr Hikaka returned home seven hoursand 13 minutes after curfew. He then left the curfew address at about 3.15 am.[6] The breach of intensive supervision relates to Mr Hikaka's continued failureto report to his probation officer, and repeated failures to attend alcohol and drugrehabilitation programmes.[7] The theft charges relate to several occasions where Mr Hikaka filled up his carwith petrol at a station and then left without paying:(a) At 12.30 pm on Thursday 18 April 2019 Mr Hikaka was at Z Energypetrol station. He asked the floor attendant to pump $40 worth of petrolinto his car and entered the store. He went to the bathroom beforewalking out of the door and drove off without paying. In explanationMr Hikaka said he had forgotten to pay.(b) At 7.51 am on Tuesday 14 May Mr Hikaka was at a petrol station inPalmerston North. He put $20 worth of petrol into his car and droveoff without paying. In explanation he said he could not afford to payfor the petrol.(c) At 6.07 pm on Friday 17 May Mr Hikaka put $40 worth of petrol intohis car at a petrol station. He drove off without paying. In explanationhe said he had left his wallet at home.[8] Mr Hikaka has been convicted of driving with excess alcohol on a previousoccasion. As a consequence of that conviction he is required to have an AlcoholInterlock device attached to his car at all times. This is a breath testing device wiredinto the car's starting system. At 1 am on Saturday 27 April Mr Hikaka was stoppedby Police driving in Palmerston North. He revealed he was required to drive a carfitted with an alcohol interlock device but the car was not fitted with such a device.At 5.15 am on Sunday 5 May 2019 Mr Hikaka was stopped by Police driving inPalmerston North. Again, his car was not fitted with the alcohol interlock device. Inexplanation he said that his car was getting fixed and he was driving to McDonalds.[9] While on bail for the theft offences and while still subject to a sentence ofintensive supervision, Mr Hikaka was the subject of a dangerous police chase inPalmerston North. At about 3.30 am on Saturday 22 June 2019 Mr Hikaka was drivinga car in Palmerston North. There were limited cars on the road and the conditionswere good. Police observed the car travelling at excessive speed with no headlightson. Police activated red and blue flashing lights and sirens and began pursuit.Mr Hikaka did not stop for Police and drove to the wrong side of the road with hislights off. He reached speeds of 90 kilometres per hour in a residential speed area witha posted speed limit of 50 kilometres per hour. Mr Hikaka then left Palmerston North,entering a rural area towards Feilding reaching speeds of 150 kilometres per hour.[10] He turned onto Affco Access Road, a dead-end street, and did a power slide tocomplete a U-turn driving straight towards Police. Police had to take evasive action toavoid a collision. Mr Hikaka continued driving into the Feilding township, reachingspeeds of 90 kilometres per hour in a 50 kilometre zone. He continued to drive on thewrong side of the road with his headlights off.[11] While driving along Makino Road he stopped the car and tried to reverse intothe Police car. He completed another sliding U-turn and continued onto North Streetdriving on the wrong side of the road. His car began to smoke, back fire and began toslow. Another Police car attempted to pass Mr Hikaka on the inside lane. Mr Hikakathen turned into the passing lane, causing the Police car to slide and hit the curb andcolliding with the driver's side. Mr Hikaka's car spun in the opposite direction.[12] The entire pursuit lasted for a total of 16 minutes, covering 48 kilometres. Allthree vehicles were moderately damaged but fortunately no one was injured. Whenspoken to by Police, Mr Hikaka was paranoid and frightened, convinced that everyonewas trying to kill him including the Police. He said he had been given some form ofdrugs and was "tripping out".District Court decision[13] The Judge took the dangerous driving charges as the lead offences and took astarting point of 14 months' imprisonment, noting it "could be a great deal higher".11She uplifted by three months for driving in breach of his interlock licencerequirements, one month for the theft, one month for the breach of communitydetention and one month for breach of intensive supervision.[14] The Judge noted it was highly aggravating that Mr Hikaka continued to offendwhile subject to bail and subject to sentence for previous offending and uplifted by afurther four months. That resulted in a total starting point of 24 months' imprisonment.With a discount for guilty plea, that resulted in an end sentence of 19 months'imprisonment.[15] Turning to a consideration of whether the sentence ought to be commuted to asentence of home detention, the Judge noted that Mr Hikaka did not have a suitableaddress. But in any case, the Judge considered home detention was not appropriate inthe circumstances:[23] You have so comprehensively breached your community-basedsentences that I do not consider you would serve a home detention sentence.I also need to send you a very strong message that if you do not stop for thepolice and you put people at risk in this way, particularly for that length oftime and over that period, then the only outcome I can possibly impose thatwill protect the public is one of imprisonment.Leave to appeal[16] Notice of appeal was filed out of time, on 9 October 2019. Counsel forMr Hikaka advises the delay was due to the fact that his lawyer for sentencing, did notappear to be available for the appeal. Delays in communication resulted in theappellant himself filing the notice of appeal and making an application to Legal AidServices after the fact. The respondent does not oppose the appeal being determinedout of time. In the circumstances I grant leave to appeal out of time.1211 New Zealand Police v Hikaka, above n 1, at [14].12 Criminal Procedure Act 2011, s 231(3).Approach to appeal[17] This appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act2011. The Court must allow the appeal if, for any reason, there is an error in thesentence imposed and a different sentence should be imposed.13 The focus will be onthe final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.14 Decisions in relation to home detention involve aprincipled choice between different forms of sentence in light of sentencingprinciples.15Analysis[18] As at sentencing, it appears Mr Hikaka still does not have a suitable homedetention address. The justification for an appeal is somewhat unclear but, as therespondent suggests, the appeal may be properly framed as an appeal against theDistrict Court's refusal to grant Mr Hikaka leave to apply for cancellation of sentenceof imprisonment pursuant to s 80I of the Sentencing Act 2002:80I Leave to apply for cancellation of sentence of imprisonment andsubstitution of sentence of home detention in certain cases(1) This section applies if—(a) a court has sentenced an offender to a short-term sentence ofimprisonment; and(b) at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitable residencehad been available.(2) At the time of sentencing, the court must make an order granting theoffender leave to apply to the court of first instance for cancellationof the sentence of imprisonment and substitution of a sentence ofhome detention if the offender finds a suitable residence at a later date.[19] The Judge made it clear that, even if a suitable address were identified,Mr Hikaka would not be a suitable candidate for home detention.16 Mr Kronast forMr Hikaka refers to a number of reasons to explain Mr Hikaka's most recent breaches13 Criminal Procedure Act 2011, s 250.14 Ripia v R [2011] NZCA 101 at [15]; see also Palmer v R [2016] NZCA 541 at [19].15 Fairbrother v R [2013] NZCA 340 at [30] See also Bishop v Police [2018] NZHC 657 at [48]–[49].16 Hikaka v New Zealand Police, above n 1.of his sentence conditions such as poor time management and deterioration ofrelationship with the occupation of his curfewed address.[20] I am not satisfied the Judge was incorrect to find Mr Hikaka was an unsuitablecandidate for home detention. Mr Hikaka has an extensive history of failures tocomply with Court orders and sentence conditions. Not only has he failed to complywith the conditions of those sentences and bail, but he has a history of offending whilesubject bail and while subject to sentence. I have no confidence that Mr Hikaka wouldcomply with any home detention conditions and am not otherwise satisfied a sentenceof home detention would be appropriate for the following reasons:(a) The offending was serious — in particular the driving charges were theresult of a lengthy, reckless and highly dangerous car chase.(b) Being subject to intensive supervision and community detention hasnot deterred Mr Hikaka from further offending. This latest set ofoffending was committed while subject to a sentence of intensivesupervision and the dangerous driving offending was committed whileon bail for the theft charges.(c) Apart from his most recent offending Mr Hikaka has a demonstratedhistory of failure to comply with sentence conditions and court ordersextending back to 2007, with five previous convictions for breach ofrelease conditions, four convictions for breach of intensive supervisionconditions and seven convictions for driving while disqualified. Healso has a history of offending on bail and breaching the conditions ofbail.(d) Mr Hikaka has failed to attend programmes in accordance with thespecial conditions of his sentence of intensive supervision, includingCare NZ Drink Driving Programme and alcohol and drug counsellingthrough the MASH Trust. The potential rehabilitation potential of ahome detention sentence is likely to be lost on Mr Hikaka.(e) The pre-sentence report noted "there is little confidence that Mr Hikakawill comply with a community-based sentence including anelectronically monitored sentence" and recommended a sentence ofimprisonment.(f) Mr Hikaka has not displayed any motivation to address his non-compliance, does not appear to understand the importance ofcommunity-based sentences and has not demonstrated any remorse forhis offending or non-compliance.[21] I am not satisfied there was any error in the sentence imposed, nor did theJudge err in declining to grant leave to apply for cancellation of the sentence ofimprisonment. For those reasons the appeal is dismissed.Cooke J