Ikiwai v Police [2013] NZHC 2515 (25 September 2013)

Last Updated: 14 October 2013

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-028 [2013] NZHC 2515

COLE ANDREW OWEN IWIKAU

v

_{NEW ZEALAND POLICE}

Hearing:	25 September 2013
Counsel:	J C Hannam and H Tyree for Appellant A Britton for Crown
Judgment:	25 September 2013

_{JUDGMENT OF WILLIAMS J}

[1] On 4 June 2013 Mr Iwikau pleaded guilty to one charge of driving while disqualified and one charge of failing to remain stopped. He appeals against Judge AC Roberts’ decision to sentence him to nine months imprisonment.1 He submits that both the starting point adopted by the Judge and the uplift imposed for previous convictions were manifestly excessive.

Circumstances of the offending

[2] Mr Iwikau is 28 years old. He has six previous convictions for driving while disqualified, the first in 2005. At 7.42pm on 24 April 2013, Mr Iwikau was driving on Celia St in Stratford. He states he was the only occupant of the car sober enough to drive. When stopped by Police, Mr Iwikau opened the driver’s door and ran off. He says he ran because he thought he wouldn’t get bail on arrest. He was located

_{and duly arrested on 1 May 2013.}

1 _{Police v Iwikau DC Hawera CRI-2013-021-000305, 31 July 2013.}

IWIKAU v NEW ZEALAND POLICE [2013] NZHC 2515 [25 September 2013]

Judge AC Roberts’ decision

[3] The Judge adopted a starting point of 10 months’ imprisonment. The Judge then imposed an uplift of six months for previous convictions, citing Peterson v Police.2 The Judge then made a deduction of three months to reflect personal mitigating factors (proper adherence to release conditions and volunteering at the kohanga reo his children attend). Finally the Judge deducted four months (or the maximum 25 per cent) for a guilty plea, arriving at an end sentence of nine months. Home detention was not considered appropriate in light of the gravity of the offending. Nor was Mr Iwikau’s address in light of his history of domestic violence.

Mr Iwikau was also disqualified from driving for yet another 12 months.

[4] On the charge of failing to remain stopped, Mr Iwikau was convicted and discharged.

Principles on appeal

[5] This is a first appeal against sentence under s 240 of the Criminal Procedure Act 2011. Accordingly, I must allow the appeal if satisfied that “for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed”.3 The words “an error in the sentence imposed” are a codification of existing case law dealing with appeals from summary proceedings.4

[6] Existing law sets out the factors that make a sentence “manifestly excessive”

and therefore in error:5

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

2 _{Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.}

3 _{Criminal Procedure Act 2011, s 250(2).}

4 _{Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA250.01].}

5 R v Monkman CA445/02, 3 March 2003.

[7] When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is, of course, on the correctness of the end result, not the process by which the sentence was reached.6

Starting point

[8] Mr Iwikau submits that a starting point of six months is appropriate and anything beyond that is manifestly excessive. The Crown says 10 months is in range, albeit at the top end. This, the Crown said, was Mr Iwikau’s seventh conviction for driving while disqualified and offenders in that category should expect starting points to increase geometrically rather than arithmetically compared to previous starting points.

[9] In the case of Peterson v Police (relied on by the Judge) the offender was sentenced for a sixth offence of driving while disqualified. Duffy J noted that there were no aggravating features particular to the offending. Her Honour adopted a starting point of 10 months.7

[10] This case is peculiar in that Mr Iwikau appealed against his previous sentence for driving while disqualified, and has cited his earlier appeal decision (Iwikau v Police) for the proposition that the sentence imposed this time round is also manifestly excessive.8 In that case Collins J adopted an end sentence of three months’ imprisonment for Mr Iwikau’s sixth conviction.9 Bearing in mind the 10 per

cent discount for a guilty plea given, that indicates a starting point of around three

and a half months’ imprisonment on Mr Iwikau’s sixth offence.

[11] Collins J also cited the decision in Paparoa v Police10 in which an offender with six previous convictions for driving while disqualified11 was sentenced to four and a half months for the seventh conviction and six and three-quarter months for the

_{eighth. Taking into account the 25 per cent guilty plea discount given, the starting}

6 _{Ripia v R [2011] NZCA 101 at [15].}

7 _{Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009 at [9].}

8 _{Iwikau v Police [2012] NZHC 2027.}

9 _{At [35].}

10 _{Paparoa v Police HC Auckland CRI-2009-404-189, 18 August 2009.}

11 At [8].

point adopted by Wylie J for the seventh conviction must have been six months (and nine months for the eighth).

[12] I note that, as Simon France J has held in relation to excess breath alcohol cases, the number of previous offences committed is only one factor amongst those relevant to setting a starting point:12

The well known graph appended to Clotworthy showing the correlation between offence number and sentence has proved equally helpful, but there can be no suggestion that Wild J was promoting some sort of mechanistic increase for each subsequent offence. The list of factors which he identified is what matters ... As always it depends, but in my view, how many times the particular offence has been committed, is a relevant factor, but no more.

[13] Mr Iwikau submits that a starting point of 10 months is manifestly excessive because it is nearly triple the starting point for his last offending. Authorities nonetheless suggest a sentence of between six and 10 months was open to the Judge for a seventh offence. The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences. For instance, a fifth

conviction warranted a starting point of two months,13 while an eleventh conviction

was held to warrant a starting point at or around the maximum of two years.14

[14] Here, Mr Iwikau has been convicted of driving while disqualified every twelve months or so for the last four years. This is not a case where the offender has relapsed after a long period of non-offending. This is a pattern of reoffending that runs like clockwork.

[15] For these reasons, I consider the starting point to be the top of the allowable range.

Uplift

[16] Mr Iwikau submits that the uplift of six months imposed for relevant previous convictions (additional to those already accounted for in the starting point, in terms

12 _{Hall v Police [2012] NZHC 2641 at [25].}

13 _{Tiopira v Police HC Hamilton CRI-2011-419-103, 6 March 2012 at [4].}

14 Drinkwater v Police [2013] NZHC 1036 at [20].

of previous convictions for driving while disqualified15) was manifestly excessive, and an uplift of three months was appropriate. The Crown accepts that the uplift was excessive, and that three months is appropriate.

[17] Mr Iwikau’s relevant previous convictions include five breaches of community work, one breach of supervision, three of excess breath alcohol and one of careless operation of a vehicle. In total he has 30 previous convictions. I am satisfied that an uplift of six months was manifestly excessive and an uplift of three months was the appropriate figure.

Personal mitigating factors

[18] Both counsel for the appellant and the Crown accept that the discount for personal mitigating factors was generous. The Judge gave a three month (approximately twenty per cent) discount for Mr Iwikau’s diligent observance of his release conditions and provision of positive support for his children. I note that the pre-sentence report writer describes Mr Iwikau’s compliance as “excellent”. The writer said he has been “open and candid” with probation, and there have been positive changes in his behaviour. Given that feedback, and that the Judge recorded that he was familiar with Mr Iwikau and his circumstances, I am more than happy to defer to his conclusion that Mr Iwikau is making a significant effort at change and

contribution to the community and that this is to be recognised by way of discount.16

I would not therefore disturb the three month discount.

Reformulated sentence

[19] I therefore reformulate the sentence as follows: a starting point of 10 months, an uplift and discount of three months cancelling each other out, and finally a guilty plea discount of 25 per cent. That brings the end sentence to one of seven and a half months’ imprisonment.

[20] The appeal is allowed accordingly, the sentence of 10 months’ imprisonment

_{is quashed and a sentence of seven and a half months substituted.}

15 _{At [18].}

16 Police v Iwikau DC Hawera CRI-2013-021-000305, 31 July 2013 at [1]-[4].

Solicitors:

Hannam & Co Lawyers, New Plymouth

Crown Solicitor, New Plymouth

Williams J