Moananui v Police [2016] NZHC 3014 (13 December 2016)

Last Updated: 9 January 2017

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-36 [2016] NZHC 3014

BETWEEN	QUENTIN JOSEPH MOANANUI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 October 2016 via AVL, further submissions received on 1 November and 7 December 2016
Counsel:	Appellant in person MJR Blaschke for Respondent
Judgment:	13 December 2016

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

_{12 pm on the 13}^th _{day of December 2016}

MOANANUI v NEW ZEALAND POLICE [2016] NZHC 3014 [13 December 2016]

[1] Mr Moananui was sentenced to 19 months imprisonment on 26 July 2016¹ after pleading guilty on 7 July to three charges of driving while disqualified (third or subsequent),² two charges of dangerous driving,³ three charges of failing to stop for police (third or subsequent),⁴ a charge of threatening to kill,⁵ two charges of breach of release conditions,⁶ and a charge of breach of community work.⁷

[2] He appeals against both his conviction and his sentence.

The summary of facts⁸

[3] On 2 March 2016 Mr Moananui was convicted of driving while disqualified and was disqualified from driving for a further nine months with a start date of

18 December 2016.

[4] On 10 June 2016 Mr Moananui was spotted at around 10:30 pm by police driving in Palmerston North. The police gave pursuit and Mr Moananui fled, speeding and driving with headlights off. The police abandoned pursuit because of the risk involved in continuing.

[5] On 13 June Mr Moananui was again seen by police driving, this time at around 2 pm. The police gave pursuit and Mr Moananui fled, driving on the footpath and speeding. The police abandoned the pursuit.

[6] On 17 June Mr Moananui was once more seen driving by police. Two separate pursuits followed. In fleeing, Mr Moananui drove at great speed on the

_{wrong side of the road. Once more police abandoned the pursuit.}

¹ _{Police v Moananui [2016] NZDC 14236.}

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

a fine of $6,000 and disqualification from holding or obtaining a driver licence for one year or more.

³ Land Transport Act 1998, s 35(1)(b), maximum penalty: three months’ imprisonment or a fine of

_{$4,500 and disqualification from holding or obtaining a driver licence for six months or more.}

⁴ Land Transport Act 1998, ss 52(1)(c) and 52(4), maximum penalty: three months’ imprisonment

_{and disqualification from holding or obtaining a driver licence for one year.}

⁵ _{Crimes Act 1961, s 306, maximum penalty: seven years’ imprisonment.}

⁶ _{Sentencing Act 2002, s 96(1), maximum penalty: one year’s imprisonment or a fine of $2,000.}

⁷ Sentencing Act 2002, s 71(1)(a), maximum penalty: three months’ imprisonment or a fine of

_$1,000.

8. Not all these facts are now accepted by Mr Moananui, a matter touched on later, at [13] of this judgment.

[7] Mr Moananui was arrested on 21 June, during which he threatened to kill one of the constables carrying out the arrest.

[8] At the time of the offending Mr Moananui was subject to release conditions.

District Court decision

[9] Mr Moananui pleaded guilty to the charges on 7 July 2016. Judge Rowe was the sentencing judge. After setting out the facts outlined above he noted in particular that:

(a) Mr Moananui had earlier driving-related convictions and convictions for assaulting police;

(b) the offending occurred while Mr Moananui was subject to release conditions;

(c) his driving created a significant risk to the community; and

(d) the threat to kill was made against a police officer acting in the course of his duty.

[10] The Judge recorded the submission from Mr Moananui’s counsel that he was outgrowing his offending, and that his father was attending in support and had made his address available were home detention to be imposed. The pre-sentence report was mixed, the Judge said, and recommended against home detention.

[11] The critical passages from the Judge’s sentencing notes are as follows:

[20] The way to approach those sorts of purposes of sentencing is firstly to analyse appropriate terms of imprisonment. In other words what are the right terms of imprisonment that would apply, particularly given your ongoing and repeated breaches of sentences. The way I analyse it is this; firstly on the 10 June incident I disagree with Ms Younger but only slightly in that her starting point was six months with an end point of four. For that episode given that it was your third driving while disqualified charge and having an eye to what we call the totality principle, in other words trying not to impose a sentence that is out of all proportion, I would impose an end sentence on that driving while disqualified charge of 10 June of three months

as an end sentence with concurrent terms of two months for the dangerous driving and one month for the failing to stop so that would be an overall sentence of three months for the 10 June episode. It would be higher ordinarily given how appalling the driving was but I need to have an eye to totality. In other words what is the overall sentence and does that correctly reflect all of the purposes and principles here.

[21] The 13 June incident I again disagree with your counsel. As this is the fourth driving while disqualified offence, I would impose three months on that with one month concurrent on the failing to stop. That would be cumulative on the 10 June matter. So Ms Young was at two months, I am at three. She was at four, I was at three on the first lot. She is two I am at three on the second lot.

[22] The 17 June incident is the most concerning of the driving incidents. When driving into the path of oncoming cars at speed, it is simply a matter of luck that something far more tragic did not happen here and on that incident I agree with your lawyer that the end point sentence from about an eight month start point or possibly even higher but allowing for totality might end up at six months as a cumulative sentence on the driving while disqualified, two months for the dangerous driving, one month for the failing to stop.

[23] The threatening to kill I see in slightly different terms to your counsel. There are cases which say that when you threaten to kill policemen or people in positions of authority who are required by us to do their job, that is a more serious thing and sentences have been imposed at 18 months plus for that sort of offence. Again, however I need to have an eye to totality. In other words not impose such a crushing sentence that it outweighs the overall criminality of your conduct or the overall purposes and principles that we are setting to achieve. Your counsel suggested four months as an end point. I say that the proper end point is a cumulative sentence of six months. It could be an awful lot higher for reasons I have explained to you but I say that allowing for totality it would be six months.

[24] Finally, your counsel submitted one month each for the breaches of sentences. So her end point was 16 months, one month each would it take to

20 months on her calculation. Well I am at 18 months on where I am so far

but I would only impose one month for your breaches of sentence so that will be concurrent with each other but on top of the 18 months that I have got to. My overall sentence on a sentence of imprisonment would be

19 months taking all of those terms into account.

[12] The Judge then considered whether a sentence of home detention was appropriate but decided it was not, in light of the seriousness of the offending and Mr Moananui’s record of compliance with conditions.

The appeals

[13] Mr Moananui was self-represented on his appeal. In advance of the hearing he had filed written submissions which focussed solely on his appeal against conviction. The three main grounds advanced in submissions were that:

(a) his guilty pleas were entered on the basis of inadequate or incorrect information and that his lawyer did not follow instructions;⁹

(b) he should not have been subject to the penalty for third or subsequent offence in respect of the driving while disqualified charge;¹⁰ and

(c) there has been an abuse of process by the police involving the fabrication of evidence.

[14] Mr Moananui also said that he had pleaded guilty principally to avoid spending a lengthy period in custody on remand. In itself, however, this suggests that he made an informed decision.

[15] As I have said, Mr Moananui did not raise any specific matters in relation to his sentence appeal. But during the hearing there was some discussion about whether he had been afforded any sentencing discount for his guilty pleas. The Crown acknowledged that on the face of the Judge’s sentencing notes (set out above), it seemed that he had not. Unsurprisingly, Mr Moananui advised that that was an avenue he wished to pursue.

[16] Because the issue had not previously been raised I adjourned the appeal in order that Mr Blaschke could consider the issues raised and to file a further memorandum. He also agreed that he would make some preliminary inquiries of

_{Mr Moananui’s former counsel with a view to setting in train the orthodox (Hall v}

⁹ He said, in particular, that his guilty pleas were entered without him seeing the summary of facts, aspects of which he now disputes.

¹⁰ This ground appears to have been based on a misunderstanding of the law. It is correct that Mr Moananui had only one previous conviction for driving while disqualified. But he also had a conviction for driving while his licence was suspended or revoked which s 32(4) of the LTA requires to be taken into account.

R)¹¹ trial counsel error process, in the event that Mr Moananui wished to pursue his conviction appeal on that basis.

[17] Following receipt of Mr Blaschke’s memorandum addressing both these matters I sent out a minute advising Mr Moananui of what his options were and seeking a response from him. His subsequent correspondence with the Court made it clear that he did wish to pursue the sentence appeal but did not wish to pursue the issues of alleged counsel incompetence or, more broadly, his appeal against conviction. It is therefore to the sentence appeal that I now turn.

Discussion

[18] In his post-hearing memorandum Mr Blaschke did not accept that the guilty pleas had not been taken into account by Judge Rowe. He said the discount was implicit in the Judge’s repeated adjustments for totality. He also submitted that the end result could not be said to be manifestly excessive in light of the nature and extent of Mr Moananui’s offending.

[19] It seems to me that the difficulty in the present case arises because the Judge took the slightly unorthodox approach of adjusting for totality in advance, within each of the five groups of offences, notwithstanding that the sentences within each group were imposed concurrently rather than cumulatively. Moreover, and other than in relation to the 10 June tranche of offending, it is unclear what the Judge regarded was the appropriate sentencing starting point for each group. And, of course, it is also not immediately evident whether he was discounting for Mr Moananui’s guilty pleas as well.

[20] In my view the preferable approach would have been to:

(a) identify in the usual way the appropriate starting and end points¹² for the lead offence in each group (other sentences within the group being

_concurrent);

¹¹ _{Hall v R [2015] NZCA 403.}

12. The starting point might be adjusted, for example, for any relevant aggravating factors (such as those mentioned at [23] below.

(c) apply the appropriate guilty plea discounts.¹³

[21] Because that did not occur, I consider that the best approach on appeal is simply to focus on whether a sentence of 19 months’ imprisonment could be said to be manifestly excessive in all the circumstances of Mr Moananui’s case. In order to make that assessment it is necessary to assume that the sentence was arrived at after taking his guilty pleas into account and, accordingly, to proceed on the basis that the (undiscounted) end sentence was one of around 25 months’ imprisonment. In other words, the question is whether a sentence of 25 months’ imprisonment could be said to be manifestly excessive for Mr Moananui’s offending, before taking into account his guilty pleas?

[22] The starting point is that there can be no quibble either with Judge Rowe’s division of Mr Moananui’s offending into five groups or with his decision to impose concurrent sentences within each group but cumulative sentences between them.

[23] The maximum penalty for threatening to kill is seven years’ imprisonment. The maximum penalty for driving while disqualified (third or subsequent) is two years imprisonment. Mr Moananui was being sentenced for three such charges which related to three separate occasions. The other five driving charges each carried maximum penalties of three months’ imprisonment. Breach of release conditions carries a one year maximum. And as the Judge noted, there were a number of aggravating features of the offending, including:

(a) the very real danger to the public involved in the manner in which

Mr Moananui had been driving;

(b) his prior dangerous driving convictions and his earlier convictions for failing to stop; and

¹³ It would be possible to apply an overarching guilty plea discount because Mr Moananui’s offending occurred in a short space of time and his guilty pleas were entered on the same day. Had that not been the case it would have been necessary to assess the appropriate guilty plea discount on a group by group basis.

[24] Taking into account all these matters, then, it cannot in my view be said that a sentence of 25 months (prior to guilty plea discount) was manifestly excessive. Such a sentence could equally be arrived at in a variety of ways. For example, that end sentence could have comprised:

(a) cumulative sentences of six months each on the driving while disqualified charges, six months on the threatening to kill and one month for the breach of conditions; or

(b) cumulative sentences of 15 months for the threatening to kill, three months each on the driving while disqualified and one month for the breach.

[25] Had either of those approaches been adopted then, with a full 25 per cent discount for guilty pleas, the end sentence would have been 19 months’ imprisonment. Judge Rowe arrived at the same result in a different way. His approach, and the outcome, was plainly available.

[26] The appeals against conviction and sentence must therefore be dismissed, for the reasons I have given.

“Rebecca Ellis J”

Solicitors: Ben Vanderkolk & Associates, Palmerston North, for Respondent

Copy to: Mr Moananui