|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 6 November 2019
|
|
|
|
BETWEEN |
ANDRE ROBERT TAIAPA Appellant |
|
|
AND |
THE QUEEN Respondent |
|
Hearing: |
10 April 2019 |
|
Court: |
Clifford, Katz and Thomas JJ |
|
Counsel: |
E A Hall and E T Blincoe for Appellant M H Cooke for Respondent |
|
Judgment: |
31 October 2019 at 12 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1] The appellant, Andre Taiapa, pleaded guilty to the manslaughter of Don Turei. That charge was laid after Mr Taiapa had pleaded not guilty to the murder of Mr Turei, arising out of the same circumstances.
[2] Lang J sentenced Mr Taiapa to six years and four months’ imprisonment, imposed a minimum period of imprisonment (MPI) of 50 per cent and disqualified Mr Taiapa “from holding or obtaining a motor driver’s licence for a period of four years from the date of [his] release from prison”.[1]
[3] Mr Taiapa now appeals against that last element of his sentence: he says the period of disqualification was manifestly excessive when considered in totality with the rest of his sentence.
[4] Mr Taiapa’s appeal was filed approximately two months out of time. As the delay has been adequately explained and no prejudice appears to arise, we grant the necessary extension.
Factual context
[5] Saturday 26 November 2016 was an eventful day for the inhabitants of the small settlements of Raukokore and nearby Waihau Bay on the northern side of East Cape, just short of Cape Runaway on State Highway 35. Three events of some significance were underway:
- (a) A large number of people were attending the tangi of a young woman who had been killed some days before.
- (b) Some 250 people were attending the unveiling of the gravestone of a long-time resident and previous captain of the local Mongrel Mob chapter.
- (c) Some 50 or more people were attending a local church for the wedding of a young couple with connections to the Tribesmen motorcycle gang.
[6] The local Mongrel Mob gang pad is a short distance down the road from the Raukokore church, where the wedding took place. The reception was held approximately five kilometres further up the road, at the Waihau Bay Fishing Club.
[7] Before the wedding began, a number of Mongrel Mob members and associates went to the church to intimidate the guests of the bridal party. At that point, there were no Tribesmen members in attendance.
[8] By midday, affected by alcohol and drugs, members of the Mongrel Mob were impeding traffic on State Highway 35 as it went past their gang pad. At about 1 pm a group of approximately 12 patched Tribesmen gang members road past the pad on their bikes on their way to the church. The wedding had, by then, taken place. After stopping briefly and finding that out, the Tribesmen continued on to the Waihau Fishing Club. Shortly after, a few carloads of Mongrel Mob members arrived at the Fishing Club. After kōrero, it was agreed the Tribesmen members would not wear their gang regalia whilst in the area.
[9] Mr Turei and his brother, both patched members of the Tribesmen gang, arrived in the area later that afternoon. They were unaware of the arrangements that had been made not to wear their gang patches. They rode their motorbikes past the Mongrel Mob gang pad, displaying their patches. Mr Taiapa, accompanied by a number of other Mongrel Mob members, followed the deceased and his brother in Mr Taiapa’s Honda car as they rode away. Mr Taiapa and his associates caught up with the two bikes. Mr Taiapa drove his car into the back of the bike being ridden by Mr Turei. The rear wheel of the bike became jammed under the front of the car. The bike then detached from the car and crashed, skidding along the road for some distance before ending up in a ditch.
[10] Mr Taiapa pulled the Honda car over just up the road, turned and travelled back to where Mr Turei lay dying. After insulting Mr Turei, Mr Taiapa and the occupants sped back to the gang pad.
[11] Mr Taiapa fled the area. Later that evening Mr Taiapa’s car was stripped of its identifying features and burnt.
[12] It took a lengthy police investigation to establish Mr Taiapa was responsible for Mr Turei’s death. On 15 November 2017 Mr Taiapa was charged with the murder of Mr Turei. He was remanded in custody. On 26 April that charge was substituted by a charge of manslaughter. Mr Taiapa then pleaded guilty to that charge, was convicted and sentenced.
The disqualification decision
[13] In determining Mr Taiapa’s sentence Lang J identified the characteristics of the offending relevant to his culpability. The Judge considered those to be the terrible consequences of Mr Taiapa’s actions; that those actions were deliberate; that they continued for some time; and that they occurred solely as a result of gang tensions.[2] The Judge considered that last characteristic to be of particular significance, as it resulted in otherwise unthinkable incidents occurring.[3]
[14] The Judge then compared Mr Taiapa’s offending to that in two other motor manslaughter cases where a car had been deliberately used as a weapon: R v Haufano and R v Johnson.[4] Mr Haufano was sentenced after trial to six years’ imprisonment and disqualified for six years from the date of his release from custody.[5] Ms Johnson was sentenced to seven years’ imprisonment, from a starting point of 10 years’ imprisonment, and disqualified for four years concurrently with her sentence of imprisonment (and timed to begin when she was first arrested and held in custody).[6]
[15] Mr Taiapa’s offending was, the Judge determined, more serious than that of Mr Haufano (because of the involvement of gang antagonisms and the absence of any provocation by Mr Turei), but less serious than that of Ms Johnson (because of the scale of her offending: one dead, 15 others injured, four of them seriously).[7]
[16] On that basis, the Judge set a starting point sentence of nine years’ imprisonment.[8] That starting point reflects the undoubted seriousness of Mr Taiapa’s offending. The Judge was only prepared to give Mr Taiapa six months’ credit on the basis of personal factors. With a discount of two years and two months to reflect Mr Taiapa’s guilty plea, an end sentence of six years and four months’ imprisonment resulted.[9]
[17] The Judge concluded that period was not in these circumstances sufficient to deter, denounce and hold accountable. He therefore imposed a MPI of three years and two months, with the four-year period of disqualification to commence on Mr Taiapa’s release from prison.[10]
Appeal
[18] For Mr Taiapa, Ms Hall first drew our attention to the Ministry of Justice’s summary of Mr Taiapa’s criminal and traffic history, which records that Mr Taiapa’s period of disqualification starts on 20 November 2024. That date is Mr Taiapa’s statutory release date, being six years and four months after the date on which he was sentenced. But, as Ms Hall noted and as the Crown accepted, the Judge’s sentencing notes — which must prevail — imposed the period of disqualification from the date on which Mr Taiapa is released from prison (which may be earlier). The discrepancy may have been caused by a notice prepared by a Deputy Registrar of the High Court pursuant to s 87 of the Land Transport Act 1998, which incorrectly recorded the start date of the disqualification as 20 November 2024. The Ministry’s records are clearly in error but, as we allow the appeal and order a new period of disqualification, we need not take the matter any further.
[19] More generally, and with reference to the principles of the Sentencing Act 2002, Ms Hall submitted that given (i) the circumstances of Mr Taiapa’s offending, (ii) the lengthy term of imprisonment imposed on him, and (iii) the imposition of an MPI of 50 per cent, imposing a term of disqualification of four years from the date of Mr Taiapa’s release was unjustified. It was inconsistent with the principle that the sentence imposed should be the one that is the least restrictive in all the circumstances. Ms Hall noted that Mr Taiapa does not have a recent history of careless or dangerous driving. This was a one-off event, of serious criminality. But it did not establish Mr Taiapa’s driving was itself a risk to the community.
[20] For the Crown, Ms Cooke accepted Ms Hall’s submission that, notwithstanding the Ministry’s records, the period of disqualification was to start from the date on which Mr Taiapa was released from prison. But she supported the disqualification period imposed by the Judge by reference to the seriousness of Mr Taiapa’s offending, his use of a motor vehicle as part of that offending and his extensive previous criminal and traffic history. That history includes numerous charges of driving whilst disqualified, third or subsequent, and of drink driving.
[21] Mr Taiapa’s offending, Ms Cooke submitted, had to be amongst the most serious of motor manslaughter cases. As such, the end sentence could have been higher, and it would have been open to the Judge to disqualify Mr Taiapa from driving for a longer period. In those circumstances it could not be said the Judge had been wrong to impose the four-year disqualification.
Analysis
The sentence of disqualification generally
[22] The power to disqualify Mr Taipa is provided by the Sentencing Act:
124 Power of court to disqualify offenders from driving motor vehicles
(1) This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against the Land Transport Act 1998.
(2) A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—
(a) the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or
(b) a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.
(3) The court may order the offender to be disqualified from holding or obtaining a driver licence within the meaning of the Land Transport Act 1998 for any period in accordance with section 125 that the court thinks fit.
...
[23] Section 85 of the Land Transport Act provides that a period of disqualification ordered under any Act starts on the day the order is made, unless the Court or that Act directs otherwise.
[24] The power to disqualify drivers for offences others than road transport offences has existed for many years. It was first enacted in 1960 as an amendment to the Police Offences Act 1927,[11] before being re-enacted as s 44A of the Criminal Justice Act 1954,[12] s 30 of the Transport Act 1962, s 83 of the Criminal Justice Act 1985 and now as s 124 of the Sentencing Act.
[25] The original purpose of the provision (as described in 1960) was to combat a perceived outbreak of “delinquency and hooliganism”.[13] The Hon HGR Mason, Attorney-General, explained in the House that the section was designed to prevent individuals “from engaging in the use of [their] car in a manner conducive to or as a means of meeting or travelling or gathering together for the furtherance of mischievous practices and making a nuisance generally”.[14]
[26] The section was addressed more recently by the Justice and Electoral Committee during the enactment of the Sentencing Act 2002. The Committee was divided as to how broadly it should be applied, but both the majority and minority indicated its purpose went beyond preventing dangerous driving. The majority anticipated the power could be used in response to driving “which either [has] relevance to the commission of the offence or to the avoidance of justice afterwards”, while the minority simply described the section as providing a “useful penalty to have at the court’s disposal”.[15]
[27] The High Court has on a number of occasions discussed the policy behind s 124, which has previously been described as “difficult to discern”.[16] A more substantial discussion is found in Mathias v Police, a case both parties referred to in this appeal.[17] Mr Mathias had been convicted of burglary. As well as being sentenced to 22 months’ imprisonment, Mr Mathias was disqualified under s 124 from driving for two years, because he had used a car to help carry away the stolen items, and that car was confiscated under s 128. On appeal, Mr Mathias said his term of imprisonment was too long and the disqualification and confiscation orders unnecessary. The Crown accepted that there were very few instances where the powers under ss 124 and 128 were used in cases of Mr Mathias’ type of offending, but submitted that in the absence of clear evidence, complaints regarding the inconvenience of not having a car or being able to drive should be given little weight. The question was whether the sentence as a whole was manifestly excessive.
[28] In allowing Mr Mathias’ appeal in part — that is, quashing the disqualification and confiscation orders — Dunningham J discussed the policy underlying s 124 in some depth:
[37] I also accept the appellant’s submission that, as the purposes and principles of sentencing apply to any form of “dealing with an offender”, they must apply to the exercise of the discretion under s 124. That section provides that the Court may make an order under that section “in addition to, or instead of, passing any other sentence or making any other order”. This makes it clear that an order under this section may, in some cases, meet the purposes and principles of the Sentencing Act without the need for any other sentence.
[38] An order under s 124 has both ... punitive and protective purposes. The loss of a licence is a way of making the offender accountable, and of denouncing his or her behaviour and of deterring the offender and others from similar offending. Equally, though, it can provide a means of protecting the community from the offender.
[39] Where the ability to drive facilitated the offence, there may be a good reason for imposing disqualification to limit the opportunity for the offender to continue offending in that way. Equally, however, I accept the appellant’s submissions that where the inability to drive would hinder the offender’s rehabilitation and reintegration, or would mean that the totality of penalties imposed, offends the principle that the least restrictive sentence appropriate in the circumstances should be imposed, that would point against an order being made under s 124.
[29] We endorse that analysis.
[30] More generally, we note that motor manslaughter cases fall into two broad categories: those where the death of the victim is the result of bad (that is, reckless, dangerous, or careless) driving; and those where the offender in effect uses the motor vehicle as a weapon, deliberately driving into the victim. Mr Taiapa’s offending falls in that second category. Lang J commented in sentencing him:[18]
... there can be no dispute that what you did was deliberate. You took your motor vehicle and you deliberately rammed it into the rear of Mr Turei’s motorcycle. In doing so you must have known the potential to cause him very serious injury was present. The fact that the Crown has been prepared to reduce the charge from one of murder to manslaughter reflects an acceptance by the Crown that you did not know, or know that there was a risk, that Mr Turei might die. Nevertheless, I am satisfied that you must have known there was a substantial risk he would suffer serious injury.
[31] Just as there is no tariff or guideline decision for manslaughter cases generally, neither is their such a decision for motor manslaughter cases, let alone for the imposition of a period of disqualification as part of the sentencing exercise. Rather, each particular factual situation should be assessed in terms of the principles and purposes of sentencing generally.
[32] There are any number of motor manslaughter cases where significant periods of disqualification have been imposed on a cumulative basis, that is to start after a finite sentence of imprisonment.[19] There are other cases where lengthy periods of disqualification have been imposed concurrently with lengthy sentences of imprisonment.[20] In one case a third approach was taken: a period of two years disqualification apparently was timed to commence on the date the offender’s MPI expired.[21]
[33] Little if any explanation tends to be provided either for the period of disqualification, or its start date. Rather sentencing decisions on the question of disqualification tend to be imposed in fairly conclusory terms. That approach is very similar to the conclusory approach taken by Judges to the imposition of MPIs, which this Court has criticised a number of times, most recently in Blackler v R.[22] There the sentencing Judge had imposed an MPI, reasoning:[23]
[38] I agree that in order to meet the purposes of sentencing which I outlined at the start, that is, deterrence, denunciation, holding you accountable for the harm done and protecting the community, a minimum period of imprisonment should be imposed and I consider a minimum period which represents half of your sentence, would be appropriate.
[34] This Court said:[24]
[38] We accept that the Judge ought to have provided reasons for the conclusory statement quoted above. As this Court has emphasised in other cases, minimum periods of imprisonment should not be imposed as a matter of routine or in a mechanistic way.[25] It is not sufficient to simply recite the statutory provisions. A reasoned analysis is required.
[35] We see no reason why the same approach is not required when Judges impose periods of disqualification under s 124.
Mr Taiapa’s sentence of disqualification
[36] In concluding that a four-year period of disqualification, following release from prison, was called for the Judge reasoned:[26]
[46] The final issue I am required to determine is the length of time for which you should be disqualified from driving as a result of this offending. I acknowledge that this is not a driving offence as that term is commonly understood. Rather it involves the use of a motor vehicle as a weapon. Nevertheless, I am satisfied that the offending is a type that should be reflected in a significant period of disqualification. You will therefore be disqualified from holding or obtaining a motor driver’s licence for a period of four years from the date on which you are released from prison.
[37] We observe it is difficult to assess that reasoning as being any less conclusory than the reasoning this Court criticised in Blackler. That is, in our view the criticisms this Court made of the Judge’s decision in Blackler apply equally to this aspect of the Judge’s decision as regards Mr Taiapa’s sentence. We note in particular the Judge would not appear to have assessed the significance of a period of four years disqualification, after release from prison, in terms of the overall effect of the sentence. The Judge had earlier observed that, given Mr Taiapa’s past gang associations and criminal record, it was unlikely he would be released after his MPI had expired.[27] It was more likely that he would not be released until at least two‑thirds of his sentence had expired, were he to be released on parole at all. We agree. In those circumstances the Judge needed to consider the overall consequences of the addition of a period of four years’ disqualification after release and provide some reasons as to why that additional penalty was appropriate. In our view, he did not do that.
[38] We therefore conclude that the Judge did err when imposing that sentence of disqualification. We agree, however, that given the nature of Mr Taiapa’s offending a period of disqualification may have been called for. We therefore undertake that aspect of Mr Taiapa’s sentencing exercise afresh.
[39] Mr Taiapa has accepted the period of imprisonment imposed on him, together with the 50 per cent MPI. The questions he raises in this appeal are whether, in light of that sentence of imprisonment any period of disqualification, let alone one of four years post-release, was called for.
[40] On imprisonment, Mr Taiapa loses his liberty and all that goes with that. Here he faces a moderately long period of imprisonment (relative to sentences imposed generally). It is unlikely he will be released immediately on the expiry of his MPI. His is a significant sentence, and carries with it emphatic denunciation and deterrence, and certainly holds Mr Taiapa accountable.
[41] On the assumption (and given Mr Taiapa’s history is all that it is) that Mr Taiapa will be released on parole, his four year period of disqualification from holding a driving licence will only commence once the Parole Board is satisfied that Mr Taiapa will, if released on parole, not pose an undue risk to the safety of the community or any person or class of persons for the balance of his sentence.[28] In making that assessment the Parole Board will have regard to the support and supervision available to Mr Taiapa following release, and the public interest in his reintegration into society as a law-abiding citizen. Mr Taiapa will also remain subject to the standard parole release conditions and any special conditions the Parole Board might impose. If not released on parole, Mr Taiapa will face the four-year disqualification after six years and four months in prison.
[42] As Lang J acknowledged, it would appear that in more recent times Mr Taiapa has left some of his anti-social behaviour patterns behind.[29] Immediately prior to his arrest, he was working well at a local marae, and he has strong expressions of support for the continuation of that involvement on his release from prison.
[43] Ms Hall points to the likely impact of a long period of disqualification from driving on Mr Taiapa’s successful reintegration into society as a law-abiding citizen. There was no specific information available to the Judge as to the likely impact of a period of disqualification on that process; nor was any sought to be admitted on this appeal. We think, however, we can fairly infer that a lengthy period of disqualification from holding a driver’s licence is likely, in today’s society, to impact adversely on a person’s ability to obtain and keep employment. That is particularly the case for a person who lives outside the few metropolitan areas in New Zealand that have reasonable public transport systems. The concerns Ms Hall raises are real ones. This Court has, on a number of occasions, acknowledged the counterproductive effects of excessively long periods of disqualification, including in sentence appeals in cases of manslaughter by dangerous or drunk driving. Thus, in Hitchens v R, the offender was sentenced to three years and six months’ imprisonment and 10 years’ disqualification.[30] In reducing that period of disqualification to seven years, commencing on the date of sentencing, this Court observed:[31]
It has been said many times that long periods of disqualification typically leave little hope for offenders. On the other hand, it is incumbent on the Courts to keep dangerous drivers such as Mr Hitchens off the road for as long as reasonably possible.
[44] On this occasion Mr Taiapa deliberately used his car as a weapon, with fatal consequences. In addition, whilst his driving record is not as bad as many that come before the Courts, it is not unblemished.
[45] Having regard to all those circumstances, we consider that some period of disqualification commencing on the date upon which Mr Taiapa is released on parole is appropriate. That element of the sentence responds to the criminal use of a motor vehicle that occurred. But we think the need for a period of disqualification diminishes the longer Mr Taiapa in fact remains in prison following the expiry of his MPI. Were he to serve his full sentence without release, we do not think a post release period of disqualification would be required at all.
[46] On that basis, Mr Taiapa is to be disqualified from driving for one year following his release from prison, provided that in any case his disqualification (if not already spent) will end on his prison sentence expiry date.
[47] We grant the application for an extension of time and allow Mr Taiapa’s appeal to that extent.
Solicitors:
Crown Law Office, Wellington
for Respondent
[1] R v Taiapa [2018] NZHC 1815 at [47].
[2] At [20]–[22].
[3] At [23].
[4] R v Haufano [2014] NZHC 1201; and R v Johnson HC Whangarei T031987, 9 June 2004.
[5] R v Haufano, above n 4, at [68].
[6] R v Johnson, above n 4, at [52].
[7] R v Taiapa, above n 1, at [25]–[26].
[8] At [29].
[9] At [36] and [41].
[10] At [44] and [46].
[11] Police Offences Amendment Act (No 2) 1960, s 4.
[12] Criminal Justice Amendment Act 1961, s 6; and Criminal Justice Amendment Act 1969, s 11.
[13] (21 October 1960) 325 NZPD 3187.
[14] (20 October 1960) 325 NZPD 3179.
[15] Sentencing and Parole Reform Bill 2001 (148-2) (select committee report) at 16.
[16] Simonsen v Police HC Dunedin AP142/90, 13 November 1990 at 5.
[17] Mathias v Police [2016] NZHC 959.
[18] R v Taiapa, above n 1, at [20].
[19] See, for example, R v Pairama HC Wanganui CRI-2009-083-2345, 31 May 2010; R v Haufano, above n 4; R v Stevens [2017] NZHC 727; R v Herewini HC Hamilton CRI-2007-019-10174, 14 May 2009; and R v Pori HC Auckland CRI-2004-204-118, 5 October 2004.
[20] See, for example, R v Green [2016] NZHC 513; R v Johnson, above n 4; R v Singh HC Auckland CRI-2005-092-163, 23 June 2006; R v Cossey [2018] NZHC 887; and R v Fairburn [2012] NZHC 28.
[21] R v Tozer HC Palmerston North CRI-2004-054-2221, 18 August 2004 at [34] and 9.
[22] Blackler v R [2019] NZCA 232.
[23] R v Blackler [2018] NZHC 830.
[24] Blackler v R, above n 22.
[25] Taumati v R [2018] NZCA 463 at [15]; R v Parker CA179/03, 21 August 2003; and R v Gordon [2009] NZCA 145.
[27] At [45].
[28] Parole Act 2002, s 28(2).
[29] R v Taiapa, above n 1, at [36].
[30] Hitchens v R CA380/03, 25 March 2004.
[31] At [10].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2019/524.html