WIKI v NEW ZEALAND POLICE [2018] NZHC 885

WIKI v NEW ZEALAND POLICE [2018] NZHC 885 [1 May 2018]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-22[2018] NZHC 885BETWEEN WARREN WILLIAM HOHEPA WIKIAppellantAND NEW ZEALAND POLICERespondentHearing: 1 May 2018(Heard at ROTORUA)Appearances: K M Jackson for AppellantA Z M Shore for RespondentJudgment: 1 May 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Wiki pleaded guilty in the District Court to a charge of driving whilstdisqualified in its aggravated form. He has seven previous convictions for eitherdriving whilst suspended or prohibited from driving or driving whilst disqualified.[2] On 13 February 2018, Judge P G Mabey QC sentenced Mr Wiki to 12 monthsimprisonment.1 Mr Wiki appeals against sentence on the basis that the Judge adopteda starting point that was too high, and failed to give him adequate discount for an earlyguilty plea.[3] In addition, the Judge disqualified Mr Wiki from driving for 18 months. MrWiki appeals against the length of the disqualification.The facts[4] The facts of Mr Wiki's offending are unremarkable. He was disqualified fromdriving for a period of 15 months on 19 October 2017 after pleading guilty to a chargeof driving whilst disqualified. Eleven days later, on 30 October 2017 and whilstserving a sentence of community detention imposed on 19 October 2017, he was founddriving a motor vehicle on SH29 near Tauranga. In explanation, he told the police hewas driving home. His explanation when sentenced was that a companion had becomeill and he had found it necessary to drive the companion home.The Judge's decision[5] The Judge adopted a starting point of 15 months imprisonment. He expressedthe opinion that Mr Wiki had "an appalling record". He has two historic convictionsfor driving whilst disqualified or driving whilst suspended in 1990. In 2017 he wasagain convicted of driving whilst disqualified. During the 12 month period leading upto the present sentence, Mr Wiki drove whilst disqualified or suspended from drivingon no fewer than four separate occasions. The most recent was on 3 August 2017.[6] The Judge did not accept that a sentence of home detention was appropriate.He considered deterrent principles were to the fore, and imposed a sentence that heconsidered to be a deterrent to Mr Wiki personally.1 New Zealand Police v Wiki [2018] NZDC 2505.DecisionStarting point[7] For Mr Wiki, Ms Jackson submits the Judge selected a starting point that wastoo high having regard to previous sentences imposed on him for similar offending.She points out that previous sentences have comprised sentences of community workand community detention. On 19 October 2017, Mr Wiki was sentenced to six monthscommunity detention and 100 hours community work on the charge to which I havealready referred. She submits that an increase from six months community detentionto 15 months imprisonment was too great in all the circumstances. She also contendsthe Judge ought to have given Mr Wiki a credit of 25 per cent for his guilty plea.[8] Ordinarily, I would agree that a starting point of 15 months imprisonment wasat the very upper end of the available range, even having regard to the fact thatMr Wiki has seven previous convictions for similar offending. That is tempered in thepresent case, however, by the fact that Mr Wiki was just 11 days into the sentence ofsix months community detention imposed on 19 October 2017. That sentence wasobviously going to be subsumed within any sentence of imprisonment that might beimposed in respect of the present offending.[9] If the Judge had elected a starting point of approximately ten to 12 monthsimprisonment, as Ms Jackson accepts would have been an appropriate starting pointfor the present offending, Mr Wiki would not serve any effective sentence in respectof the offending for which he was sentenced on 19 October 2017. The Judge did notexpressly say he was taking this factor into account. Nevertheless, an appellate courtmay only interfere with a sentence in circumstances where it is manifestly excessiveor subject to some other error of principle in the sentencing process.[10] In the present case I do not consider a three month uplift to reflect the sentenceof community detention that was being replaced by the sentence of imprisonment canbe said to be untoward. For that reason I do not accept the Judge erred in principle inselecting a starting point of 15 months imprisonment.Home detention[11] I do not accept that a sentence of home detention would have been anappropriate outcome in the present case. A sentence of community detention is insome respects akin to a sentence of home detention because it requires the offender tobe subject to electronic monitoring at night. Mr Wiki was not deterred by that type ofsentencing from offending again on the present occasion. I consider the Judge wasentitled to take the view that deterrent principles required a sentence of imprisonmentrather than home detention.Credit for guilty plea[12] The only remaining issue relates to the credit the Judge gave Mr Wiki for hisguilty plea. Mr Wiki intimated a guilty plea on his second appearance in the DistrictCourt. He then entered the plea on the following appearance, which was the firstoccasion he had appeared before a Judge. On that basis it must be said that he entereda guilty plea at the earliest possible opportunity.[13] Importantly, however, the Supreme Court in Hessell v R did not say that adiscount of 25 per cent is mandatory in cases of an early guilty plea.2 Another Judgemay well have given a credit of 25 per cent for the guilty plea, but I do not considerthe Judge erred in principle in applying a discount of 20 per cent. Rather, that is themaximum discount that may be allowed.3 The Supreme Court observed that anotherfactor the Court may take into account when assessing the credit to be given for theguilty plea is the strength of the prosecution case and the inevitability of conviction.4Mr Wiki had no hope of defending this charge, because he was caught in the act ofdriving whilst disqualified.[14] For that reason I do not consider the end sentence to be manifestly excessivebecause of the fact that the Judge applied a discount of 20- per cent rather than 25 percent to reflect the guilty plea.2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 (SC).3 At [75].4 At [60].Disqualification[15] Mr Wiki also appeals against the period of 18 months disqualification that theJudge imposed. However, the Judge who sentenced Mr Wiki on 19 October 2017disqualified him for driving for one year three months from that date. Mr Wiki cannotcomplain that his offending 11 days later resulted in a period of disqualification justthree months longer.Result[16] The appeal against sentence is accordingly dismissed.Lang JSolicitors:Crown Solicitor, TaurangaPublic Defence Service, Tauranga