Fataiki v Police [2021] NZHC 3446 (14 December 2021)

Last Updated: 17 December 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-442 [2021] NZHC 3446

BETWEEN	KYLE JACK FATAIKI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 December 2021
Appearances:	M Timmins for the Appellant Z Trinder for the Respondent
Judgment:	14 December 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 December 2021 at 4:00 pm.

Registrar/Deputy Registrar

..........................................

Solicitors:

Mr M Timmins, Timmins Law, Auckland

Ms Z Trinder, Meredith Connell, Office of the Crown Solicitor, Auckland

FATAIKI v POLICE [2021] NZHC 3446 [14 December 2021]

Introduction

• [1] Mr Fataiki appeals against his sentence of 20 months’ imprisonment imposed by Judge J M Jelaš in the Waitākere District Court on 2 September 2021 following guilty pleas to the following charges:¹

(a) one charge of possession of explosive;²

(b) one charge of driving while disqualified (third or subsequent);³

(c) one charge of possession of methamphetamine;⁴

(d) one charge of possession of utensils;⁵

(e) one charge of receiving $500 to $1,000;⁶

(f) one charge of receiving under $500;⁷

(g) one charge of unlawful possession of Police property;⁸ and

(h) one charge of breaching release conditions.⁹

• [2] Mr Fataiki had previously accepted a sentence indication given by Judge Glubb on 3 May 2021.¹⁰ Judge Jelaš sentenced Mr Fataiki in line with this sentence indication. Mr Fataiki appeals on the basis that the end sentence was manifestly excessive because the starting point for the lead offence of unlawful possession of explosive was too high.

¹ New Zealand Police v Fataiki [2021] NZDC 17567.

² Arms Act 1983, s 45(1). Maximum penalty: 4 years’ imprisonment and/or $5,000 fine.

³ Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty: 2 years’ imprisonment or

$6,000 fine.

⁴ Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: 6 months’ imprisonment and/or

$1,000 fine.

⁵ Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty: 1 year’s imprisonment and/or

$500 fine.

⁶ Crimes Act 1961, ss 246 and 247(b). Maximum penalty: 1 year’s imprisonment.

⁷ Crimes Act 1961, ss 246 and 247(c). Maximum penalty: 3 months’ imprisonment.

⁸ Policing Act 2008, s 50. Maximum penalty: 3 months’ imprisonment and/or $2,000 fine.

⁹ Sentencing Act 2002, s 96(1). Maximum penalty: 1 year’s imprisonment or $2,000 fine.

¹⁰ New Zealand Police v Fataiki DC Waitākere CRI-2020-090-5204, 3 May 2021.

The offending

• [3] On 5 March 2007 Mr Fataiki was convicted in the Manukau District Court on two charges of driving while disqualified.

• [4] On 8 April 2008 Mr Fataiki was convicted in the Manukau District Court on a further two charges of driving while disqualified.

• [5] On 29 July 2014 Mr Fataiki was convicted in the Manukau District Court on two more charges of driving while disqualified.

• [6] Sometime between July 2014 and December 2014, Detective P’s vehicle was broken into outside his Manukau address and his Police photo identification badge and detective badge were stolen from the vehicle.

• [7] On 12 September 2019 Mr Fataiki was disqualified from driving for one year from 2 January 2020.

• [8] On 16 September 2020, Mr Fataiki failed to report to his Probation Officer, in breach of his release conditions (following release from prison on 20 January 2020). No contact was received from him to explain. On 9 December 2020, a home visit was undertaken to his last known address to try to re-engage him with his sentence but the address was empty.

• [9] Sometime between 15 December 2020 and 25 December 2020, S was the victim of a burglary at his Titirangi address. Multiple items were stolen including an Ibanez Electric Guitar purchased on Trade Me for $459.

• [10] On 12 December 2020, C rode her Scott Contessa Active Bike (valued at

$740.99) to work in Mt Eden where she secured it with a padlock. When she returned at the end of the day it was gone.

• [11] At about 1:00 am on 28 December 2020, Mr Fataiki was the driver of a Holden vehicle in Te Atatū South. He was stopped by Police and checks revealed he had an active warrant to arrest and was a disqualified driver. He was arrested and searched.

Police located two empty point bags and $770 cash in his pocket, as well as a glass methamphetamine pipe partially concealed under the driver’s side floor mat.

• [12] Police invoked a warrantless search of the vehicle and located four methamphetamine pipes, electronic scales, numerous new empty point bags, a small black magnetic key locker containing a point bag with a usable quantity of methamphetamine, Detective P’s Police photo identification tag, a detective badge, a shotgun cartridge, an Ibanez Electric Guitar, and a dismantled Scott Contessa Active bike with the serial number of C’s bike.

• [13] In explanation, Mr Fataiki said he did not think he was disqualified from driving. He said he had just purchased the bike for his daughter’s birthday and had just finished taking it out of the box. He said the guitar was his. He refused to comment on the other items but stated that everything in the car was his.

Judge Glubb’s sentence indication

• [14] Judge Glubb identified the following aggravating features of the offending: planning and premeditation, the repeat nature of the offending, quantum in terms of what was taken or at least received, and victim impact. He adopted a starting point of 14 months’ imprisonment.

• [15] The Judge indicated uplifts of eight months’ imprisonment for the remaining charges and four months for previous convictions, noting that Mr Fataiki’s conviction history, which includes drugs, firearms offending and reckless driving, was “a little troubling”.¹¹ He allowed a 20 per cent discount for his guilty plea, coming to an indicated end sentence of 20.8 months, which he rounded down to 20 months’ imprisonment. He also indicated disqualification from driving for a year and a day.

Judge Jelaš’ sentence

• [16] The Judge adopted the sentence indication and declined to give credit for a further factor raised – time spent at the LIMA unit in Auckland Remand Centre – as Mr Fataiki had absconded from EM bail immediately upon release.

¹¹ New Zealand Police v Fataiki DC Waitākere CRI-2020-090-5204, 3 May 2021 at [4] and [8].

That non-compliance with EM bail also precluded an electronically monitored sentence in the community.

• [17] The Judge imposed an end sentence of 20 months’ imprisonment on the charge of possession of explosive and three months’ imprisonment, concurrent, on each of the charges of receiving, breach of release conditions, possession of a pipe, possession without reasonable excuse of Police identification, and possession of methamphetamine. On the driving while disqualified charge, the Judge imposed a sentence of four months’ imprisonment, concurrent, and 12 months’ disqualification commencing the previous day (1 September 2021).¹²

Approach on appeal

• [18] To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.¹³ The Court will not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.¹⁴ The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.¹⁵

• [19] The fact that a defendant has accepted a sentence indication does not affect the right to appeal against sentence.¹⁶

Submissions

• [20] Mr Timmins, for Mr Fataiki, submits that the starting point for the lead offence of unlawful possession of explosive was too high. He submits an appropriate starting point would have been six months’ imprisonment, referring to several cases.¹⁷

¹² The Judge also remitted Mr Fataiki’s outstanding fines and offenders’ levies.

¹³ Criminal Procedure Act 2011, ss 250(2) and (3).

¹⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [34]- [36].

¹⁵ Ripia v R [2011] NZCA 101 at [15].

¹⁶ Criminal Procedure Act, s 245.

¹⁷ R v Walker-Haturini [2021] NZHC 1208; R v Newton [2021] NZHC 2665; Gray v New Zealand Police [2018] NZHC 3030; R v Walker HC Hamilton CRI-2006-019-8473, 13 November 2007; and New Zealand Police v Mrkusich [2021] NZDC 19404.

With uplifts of eight months for the remaining offending and four months for previous convictions, and a 20 per cent discount for guilty plea, the end sentence would be 14.4 months’ imprisonment. This is 28 per cent less than the sentence imposed by the Judge. Therefore, he submits, the sentence imposed is manifestly excessive. There is no suggestion a sentence other than imprisonment was appropriate.

• [21] Ms Trinder, for the respondent, accepts that the cases cited by Mr Timmins support a starting point in the range of six to eight months’ imprisonment for the possession of explosive charge. However, she submits it may have been more appropriate to treat the conviction for driving while disqualified (third or subsequent) as the lead charge.

• [22] Ms Trinder submits that a starting point of 15 to 18 months would have been in range for this offending, factoring in Mr Fataiki’s previous driving convictions. She refers to Osikai v New Zealand Police¹⁸ and Peterson v New Zealand Police,¹⁹ submitting that Mr Fataiki’s offending is similar in that it lacked any aggravating features.

• [23] From a starting point of 15 to 18 months, Ms Trinder submits an uplift of eight months was within range – more than eight months would have been open to the Judge given the number and range of other charges faced. She acknowledges the four month uplift for previous convictions would have included Mr Fataiki’s previous driving convictions. To avoid double counting, she submits an uplift of two months’ imprisonment for his relevant drug, dishonesty and firearms/weapons convictions is appropriate. No issue is taken with the 20 per cent guilty plea discount. Thus, Ms Trinder submits that adopting this approach at minimum a sentence of 20 months’

¹⁸ Osikai v New Zealand Police [2015] NZHC 2952, where Simon France J reduced an 18 month starting point to 15 months on appeal for the appellant’s eighth charge of driving while disqualified, given it would be the first time the deterrent effect of imprisonment was to be tried, and the lack of any aggravating features. He referred at [5] to Court of Appeal cases suggesting that 18 months for an eighth charge would be “at least near the top of the range”: citing Finch v R [2013] NZCA 446; and Butterfield v R CA 110/97, 23 July 1997.

¹⁹ Peterson v New Zealand Police HC Hamilton CRI-2009-419-11, 20 February 2009, where this Court on appeal considered a 10 month starting point was appropriate for a sixth charge of driving while disqualified with no aggravating features. There was an uplift of seven months, but this was both because it was the appellant’s sixth driving while disqualified conviction and because of his other previous convictions (76 in total).

imprisonment would be reached; it would have produced the same outcome. Therefore the end result was plainly within range and not manifestly excessive.

• [24] In reply, Mr Timmins submits that a lower starting point should be used if the Court treats the driving while disqualified as the lead offence. He refers to Russell v New Zealand Police²⁰ and Whitley v New Zealand Police,²¹ submitting these cases are more supportive of a 10 month starting point.

• [25] Mr Timmins submits the uplift for the remaining offences should be reduced to four months’ imprisonment, to account for the higher starting point taken on the driving while disqualified charge. With the additional four month uplift for previous convictions, this comes to 18 months’ imprisonment. After the 20 per cent guilty plea discount, he submits the result is the same as first proposed, namely 14.4 months’ imprisonment.

Discussion

Lead offence

• [26] As indicated, the sentencing Judge adopted the sentence indication’s end sentence of 20 months’ imprisonment without reference to how that sentence was calculated, but it appears the sentencing Judge treated the possession of explosive charge as the lead offence given that 20 months’ imprisonment was imposed on that charge, with much lower concurrent sentences on the other charges. The sentence indication did not identify the lead offence explicitly, but it is evident from the submissions for the indication that counsel proposed, and the Judge accepted, that possession of explosive should be seen as the lead offending.

²⁰ Russell v New Zealand Police [2018] NZHC 858, where this Court upheld a starting point of nine months’ imprisonment for an eighth offence of driving while disqualified. The last driving conviction was nine years prior, but the appellant had previously been sentenced to short terms of imprisonment for some of the previous driving convictions. The Court said that the uplift of three months’ imprisonment imposed by the District Court was not needed, as the starting point adequately reflected the defendant’s conviction history.

²¹ Whitley v New Zealand Police [2016] NZHC 1025, where this Court upheld a starting point of 10 months’ imprisonment for an eighth charge of driving whilst disqualified, with uplifts of four months each for the ninth and tenth such charges. The appellant’s most recent driving conviction occurred only four months before the eighth charge. The ninth and tenth charges involved an aggravating feature, having occurred while the appellant was on bail.

• [27] It is common ground that the starting point was too high for the possession of explosive charge, but it is also common ground that the driving while disqualified (third or subsequent) offence justified a higher starting point than the starting point for the possession of explosive. Given that, as Ms Trinder submitted, it would have been more appropriate to treat the conviction for driving while disqualified (third or subsequent) as the lead charge even though the explosive charge has the higher maximum penalty. While it was an error attaching the higher concurrent sentence to that charge, it is clear that the 20 months’ imprisonment imposed for the possession of explosive reflected the Judge’s view of the overall offending as it included uplifts for the other charges.

Starting point for driving while disqualified (third or subsequent)

• [28] The cases indicate there are two approaches to setting a starting point for the charge of driving while disqualified (third or subsequent). One is to factor the number of previous driving convictions into the starting point.²² The other is to allocate a starting point for the offence of driving while disqualified and then uplift the starting point to reflect the defendant’s previous convictions, including driving convictions.²³

• [29] Each approach is supported by principle. The former approach reflects the fact that prior offending is, by statute, relevant to the maximum sentence. The latter approach reflects the fact that ordinarily the offender’s previous convictions are relevant at the second step of the sentencing process. I prefer the former approach of factoring previous driving while disqualified convictions into a global starting point. As Hansen J said in Maxwell v New Zealand Police, the starting point should reflect not simply the fact of the more serious offence of driving on a third or subsequent occasion but the additional culpability arising from the number and frequency of previous convictions.²⁴ As Moore J said in Opetaia v New Zealand Police, this approach appears to have more judicial support.²⁵ But, as Dunningham J said in

²² Drinkwater v New Zealand Police [2013] NZHC 1036 at [18]; and Maxwell v New Zealand Police

[2013] NZHC 3172 at [13].

²³ Peterson v New Zealand Police HC Hamilton CRI-2009-419-11, 20 February 2009 at [9]-[10]; and Keenan v New Zealand Police [2014] NZHC 1894 at [20]- [23].

²⁴ Maxwell at [13].

²⁵ Opetaia v New Zealand Police [2015] NZHC 2532 at [36]. In that case, Moore J referred to a number of authorities and said they make plain that the number of previous convictions for driving while disqualified or driving while suspended is strongly and directly relevant in assessing the

Keenan v New Zealand Police, whichever approach is adopted the starting point after taking into account the previous driving offences will be about the same.²⁶

• [30] Previous sentencing authorities are of limited assistance, turning as they do on the individual circumstances of the offence and the offender in the particular case.²⁷ Also, given the two different approaches referred to, it is particularly important when comparing other cases to identify whether or not the starting point factors in driving while disqualified convictions.

• [31] This is Mr Fataiki’s eighth conviction for driving while disqualified. The authorities cited involving an eighth conviction without other aggravating driving features span a range of starting points between nine and 15 months’ imprisonment. But the number of previous driving while disqualified convictions is only one of the relevant factors.²⁸ It may be an aggravating factor where a sentence of imprisonment has been imposed for a previous driving while disqualified conviction with insufficient deterrent effect. Here, Mr Fataiki has previously been sentenced to imprisonment for driving while disqualified; he was sentenced to three months’ imprisonment for his two convictions in 2014. Evidently this (and more recent imprisonment for other offending) has not sufficiently deterred him from driving while disqualified. However, those driving while disqualified convictions were in 2014 and any sentence within range is a material increase on a sentence of three months’ imprisonment. Given that, and the lack of other aggravating driving features, I consider a starting point of 12 months’ imprisonment would have been within range for this lead charge of driving while disqualified (third or subsequent).

starting point for this kind of offending. While a mathematical or formulaic approach is not to be commended, a starting point of 10 months’ imprisonment, albeit at the top end of the range, may be appropriate for an eighth conviction.

²⁶ Keenan v New Zealand Police [2014] NZHC 1894 at [23].

²⁷ Haig v New Zealand Police [2017] NZHC 2751 at [25] citing Lord v New Zealand Police [2015] NZHC 1756 at [13].

²⁸ Iwikau v New Zealand Police [2013] NZHC 2515 at [12] citing Hall v New Zealand Police [2012] NZHC 2641 at [25]. In Iwikau, Williams J observed that the case law suggests a sentence of between six and 10 months is available for a seventh offence, and further substantial increases for subsequent offending between the fifth and tenth offences: at [13]. In Drinkwater v New Zealand Police [2013] NZHC 1036 at [20], a starting point of 16 months was upheld for an eleventh offence.

Uplifts

• [32] My conclusion on starting point necessarily impacts on the uplift for remaining charges. Taking the driving while disqualified charge as the lead offence means the explosive charge, rather than the driving while disqualified charge, is to be considered in the uplift for remaining charges. As Mr Timmins submits, that offence would attract a lower starting point than the driving while disqualified charge. Given that, and the spread of other charges, I consider an uplift of six months’ imprisonment is appropriate for the remaining charges including the explosive charge.

• [33] Turning to the uplift for previous convictions, Ms Trinder acknowledged that the four month uplift should be reduced to two months to avoid double counting Mr Fataiki’s driving while disqualified convictions which are factored into the starting point. But in the sentence indication, those previous convictions were correctly omitted from the Judge’s assessment of the uplift. I consider an uplift of four months’ imprisonment for Mr Fataiki’s previous convictions (excluding those for driving while disqualified) was within range. I note, however, that the approach in Moses v R now requires all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, to be calculated as a percentage of the adjusted starting point.²⁹

• [34] Ms Trinder responsibly advised that it had just come to her attention that Mr Fataiki had attended a restorative justice meeting with the victim guitar owner. The Judge would not have been aware of this at sentencing and therefore not in a position to take it into account. Ms Trinder advised that the meeting went very well. While it involved only one of Mr Fataiki’s victims, it is a positive step and he should be commended for showing some insight and remorse. I consider a discount of five per cent is warranted to recognise his participation in the restorative justice process.

Was the sentence manifestly excessive?

• [35] In summary, I consider a starting point of 12 months’ imprisonment would have been within range for the lead offence of driving while disqualified (third or

²⁹ Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

subsequent) with an uplift of six months for the remaining charges, resulting in an adjusted starting point of 18 months’ imprisonment. Turning to Mr Fataiki’s personal circumstances, there is the further uplift of four months (22 per cent) for his previous convictions (excluding those for driving while disqualified) and the discounts of 20 per cent for guilty plea and five per cent for participation in restorative justice, resulting in a net discount of three per cent, or just over two weeks.

• [36] The resulting end sentence of 17 and a half months’ imprisonment is just over 12 per cent lower than the imposed end sentence of 20 months’ imprisonment. Such an alteration is sufficient to found a successful appeal and does not amount to tinkering.³⁰ I therefore consider the sentence imposed was manifestly excessive.

Result

• [37] The appeal is allowed.

• [38] I set aside the sentence of 20 months’ imprisonment, and substitute it with a sentence of 17 and a half months’ imprisonment.

Gault J

³⁰ Wikaira v New Zealand Police [2021] NZHC 3262 at [18].