Apiata v Police [2016] NZHC 3119 (16 December 2016)

Last Updated: 23 December 2016

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2016-443-34
CRI-2016-443-35 [2016] NZHC 3119

BETWEEN	JASON PAUL APIATA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 December 2016
Counsel:	N L Laird for Appellant C E Clarke for Respondent
Judgment:	16 December 2016

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] Mr Apiata appeals a sentence of 29 months’ imprisonment imposed on him by Judge L Harrison in the District Court at New Plymouth on 14 October 2016 after he pleaded guilty to four charges of driving whilst disqualified or suspended.¹

[2] Mr Apiata says that sentence was manifestly excessive. He should have received a short term sentence of imprisonment, that is, one less than two years, and should have had that sentence of imprisonment commuted to one of home detention.

Context

[3] Mr Apiata has a lengthy history of driving whilst disqualified offending. In

December 2014 Mr Apiata was convicted on one of those offences. On that occasion, special circumstances had been found: he was not further disqualified.

¹ _{Police v Apiata [2016] NZDC 20574.}

APIATA v POLICE [2016] NZHC 3119 [16 December 2016]

Rather, in terms of s 94 of the Land Transport Act 1998, he was sentenced to community work and provided with an opportunity to obtain a driver’s licence so as to break his cycle of offending. He would appear to have obtained a learner’s licence, but gone no further.

[4] On 27 February 2016 he was stopped by the police whilst he was driving. His licence was suspended on that date for a period of three months because he had excess demerit points. He was subsequently stopped whilst driving on 21 April and

12 May. As regards the events on those days, he received the first two convictions for driving whilst suspended that are at issue here. Whilst those charges were pending, Mr Apiata was stopped again in June, and his licence again suspended under the demerits points system. Whilst subject to that suspension, he was stopped whilst driving on 25 July and 14 September, giving rise to the third and fourth convictions that are at issue here.

[5] Those convictions are Mr Apiata’s 20th to 23rd for driving whilst disqualified/suspended.

[6] Mr Apiata has a considerable number of other convictions (in all some 90) for a range of, generally relatively minor, dishonesty, violence and drink driving offending. Mr Apiata also has numerous convictions for failing to comply with the terms of non-custodial sentences. Mr Apiata has been sentenced to a number of sentences of imprisonment. Most recently, and most seriously, in May 2015 he was sentenced to a total of nine months’ imprisonment for offending involving breaches of a protection order and assault with intent to injure.

The challenged decision

[7] The Judge noted the lengthy history of like offending. She categorised Mr Apiata as a recidivist offender, with an “horrendous history” of breaching court orders and sentences, and a cavalier attitude towards compliance with driving restrictions.

[8] Referring to the decision of Wylie J in Whitley v Police,² the Judge set a starting point sentence for each charge of nine months, which resulted in a cumulative starting point of 36 months’ imprisonment. The Judge allowed a 25 per cent discount for Mr Apiata’s guilty pleas. That reduced the sentence to 27 months. The Judge then imposed a cumulative sentence of one month for the charge of failing to give particulars and added a further month on account of the fact that she had remitted some $6,200 in fines. Thus, Mr Apiata was sentenced to 29 months’ imprisonment.

Appeal

[9] For Mr Apiata, Ms Laird submitted the Judge’s approach had been wrong. A combination of the inappropriate use of cumulative sentences, and too much reliance on past offending, had resulted in a manifestly excessive starting point. Further mitigating factors, such as Mr Apiata’s child being in his care and the absence of any element of dangerous driving, had not been recognised. An end sentence between

12 to 18 months, with “leave to apply for home detention”, was said by Ms Laird to be the appropriate outcome.

[10] Relying on Whitley, the respondent’s submission was that the Judge was correct to use cumulative sentences. By reference to the High Court decision in Wilson v Police,³ the overall end sentence did not offend the totality principle. The sentence recognised that Mr Apiata had, with an extended history of driving whilst disqualified/suspended, driven whilst suspended on four further occasions.

Analysis

[11] As Ms Laird recognised in oral argument, whether or not the Judge was correct to approach Mr Apiata’s sentencing on a cumulative basis, the question here is whether the end point arrived at of 29 months was a manifestly excessive

_sentence.

² _{Whitley v Police [2016] NZHC 1025.}

³ Wilson v Police [2016] NZHC 506.

[12] In order to answer that question, however, the appellate court must itself take a view – separately from the sentencing Judge – on the end point to be arrived at. To do that, a proper sentencing methodology must be applied.

[13] Determining the proper sentencing methodology here raises two issues: how the question of previous offending should be addressed and, given that Mr Apiata is to be sentenced on four charges, how the principles relating to cumulative and concurrent sentences should be applied. And there is always the overarching principle of totality.

[14] The discrete offence of driving whilst disqualified/suspended, third or subsequent, attracts a maximum sentence of imprisonment of two years or a fine not exceeding $6,000. By contrast, the offence of driving without a (current) licence, a fine not exceeding $1,000; and driving whilst disqualified/suspended, a first or second offence, a term of imprisonment not exceeding three months or a fine not

exceeding $4,500.⁴

[15] Agreeing with Ronald Young J, and others,⁵ I consider that the relevant previous offending is an element of the offence. It is therefore appropriate to include what might be called the degree of “recidivism” in the calculation of the starting point sentence. As Ronald Young J put it, it would be artificial to take the alternative approach, and set a starting point for what would be treated notionally as a first, third or subsequent, offence and then uplift for “previous offending”.⁶

[16] The question then becomes whether concurrent or cumulative sentences are appropriate as regards the four charges Mr Apiata faces. The principles are well known. In particular, concurrent sentences will generally be appropriate where the various offences are of the same type, and represent a connected series of events or a continuing course of conduct. When determining sentences for this type of offending, courts have sometimes taken the view that, because (as here) the like

_{offending has occurred over a period of months, as a matter of principle cumulative}

⁴ _{Land Transport Act 1998, ss 31 and 32.}

⁵ Drinkwater v Police NZHC 1936; Wylie J in Whitley v Police, above n 2; Moore J in Opetaia v

_{Police [2015] NZHC 2532.}

⁶ At [18].

sentences are called for.⁷ I am not persuaded that is the correct approach. It is difficult, not only given the facts of Mr Apiata’s offending but also the nature of that offending itself (that is, recidivist driving whilst disqualified/suspended), to avoid the conclusion that Mr Apiata’s conduct reflects a continuing course of conduct. Thus concurrent sentences are, on that basis, appropriate.

[17] But that is not the end of the matter. Where determining a sentence for a number of identical offences on a concurrent basis would, because of the maximum sentence for the offence, mean that the appropriate sentence could not be applied, a court may impose cumulative sentences to achieve that result.⁸

[18] In determining the appropriate starting point, then, the principle that as between offenders and over time like offending should receive similar sentences is perhaps the most useful help to the sentencing judge, in this context,⁹ as well as the principle calling for the application of the maximum sentence to the worst type of the relevant offending.¹⁰

[19] In Opetaia, Moore J referred to a number of recent decisions for this type of offending. Nation J did similarly in Wilson. For my own assistance, I have prepared a table of the sentencing outcomes from some of those cases. I set that table out as an appendix, by reference to the important factors of the number of charges being faced and the degree of recidivism. Other important factors would include the gap between the offending being sentenced and previous like offending, and the period of time over which all of the offending has occurred.

[20] That table shows that the decision in Wilson, which the Crown relied on in defending Mr Apiata’s sentence, is on the face of it and by a reasonable margin something of an outlier.

[21] I take the approach I think is preferable: namely, one that is similar to that reflected in the decisions of Wylie J and Moore J in Whitley and Opetaia

⁷ _{For example, Wilson, above n 3.}

⁸ _{Sentencing Act 2002, s 85.}

⁹ _{Sentencing Act 2002, s 8(e).}

¹⁰ Sentencing Act 2002, s 8(c) and (d).

respectively. That is, I will set a starting point for the fourth offence first (as that offence involved the greatest extent of recidivism), then impose smaller uplifts for the previous three offences. Recognising the increased seriousness of Mr Apiata’s offending, relative to that being considered in those cases, I consider that the appropriate starting point was two years and six months’ imprisonment, comprising

12 months’ imprisonment for the fourth charge and three cumulative sentences of six months for each of the other three charges. That is, a starting point sentence of 30 months, rather than the 36 months the Judge arrived at.

[22] The Judge then calculated and applied the discount for Mr Apiata’s guilty pleas, before, finally, adding two months on account of the failing to give particulars charge and the remission of fines. Those two months were not challenged. Strictly speaking, a guilty plea discount is the last adjustment to be made. There being no challenge to those adjustments, I would add them to the starting point sentence at this point: so 32 months.

[23] The Judge included no uplift for other previous convictions. It may be that she had those convictions in mind when fixing the starting point sentences for the four charges. Given the nature and extent of Mr Apiata’s previous non-driving offending, and in particular the offending relating to failure to comply with terms of non-custodial sentences, I think an uplift was called for. In all the circumstances, an uplift of four months could not be challenged.

[24] That results, on the basis of my approach, in a starting point sentence of

36 months’ imprisonment. That is, the very same starting point arrived at by the

Judge.

[25] Ms Laird argued for credit for a number of mitigating factors, including most particularly that Mr Apiata had been driving whilst having the care of his young daughter, that he was seen by CYFS as doing a good job in that role, that he had employment and that his driving whilst disqualified did not involve any element of dangerous or drink driving. Those are, I acknowledge, positive aspects of Mr Apiata’s lifestyle and speak positively of him. But I do not consider they mitigate this offending: the essence of this offending is that – notwithstanding

whatever lifestyle Mr Apiata has led over the years – he has continued to disregard the requirement to obtain and maintain a valid driver’s licence and has, in many other ways, shown little regard for some relatively basic, but important, requirements of our civic society.

[26] Allowing, as a final adjustment, a 25 per cent discount for Mr Apiata’s guilty pleas, an end sentence of 27 months is arrived at.¹¹ On that basis the issue of home detention does not arise.

[27] The sentence I have reached is therefore two months less than that of the Judge. This is because of the stage at which the guilty plea discount was given. I will allow the appeal to take account of this two month difference. I accept it could, on its face, be seen as tinkering. However, the courts recognise that where there has been an error of principle by the sentencing Judge, even where the necessary adjustment is small, it should be given.¹²

Result

[28] The appeal is allowed to the extent set out above at [27]. I quash the sentence of 29 months’ imprisonment and impose a sentence of 27 months’ imprisonment, on the following basis:

(a) twelve months on the fourth charge; and

(b) five months cumulative on each of the first, second and third charges;

and

(c) one month (concurrent) on the charge of failing to give particulars and in substitution for remitted fines.

¹¹ It might be argued that the guilty plea discount should only be given as regards the charges in respect of which guilty pleas have been entered. There being no charge corresponding to the one month uplift in substitution for remitted fines, the guilty plea adjustment could be calculated before that uplift is added. My sense is that is a little over-complex. The general principle is that guilty plea discounts are calculated as the last step in the sentencing process.

¹² Tutukangahau v R [2014] NZCA 279 at [36].

_{“Clifford J”}

Solicitors:

Crown Solicitor’s Office, New Plymouth

_APPENDIX

Case	Year	Charges	Third or subsequent	Starting point
Apiata*	2016	4	18–22	9 x 4 = 36 months
Whitley13	2016	3	9–11	10 months + 2 x 4 months = 18 months
Wilson14	2016	4	13–16	9 x 4 = 36 months
Opetaia15	2015	4	5–9	10 months + 3 x 3 months = 19 months
Sykes16	2014	1	40	21 months
Keenan17	2014	1	11	20 months
Tua18	2013	1	18	Community work
Drinkwater19	2013	1	11	16 months
Maxwell20	2013	2	11–12	12 months + 8 months (other crimes) = 20 months
Finch21	2012	3	5–7	14 months
Peterson22	2009	1	7	17months

¹³ _{Whitley v Police [2016] NZHC 1025.}

¹⁴ _{Wilson v Police [2016] NZHC 506.}

¹⁵ _{Opetaia v Police [2015] NZHC 2532.}

¹⁶ _{Sykes v Police [2014] NZHC 2642.}

¹⁷ _{Keenan v Police [2014] NZHC 1894.}

¹⁸ _{Tua v Police [2013] NZHC 2994.}

¹⁹ _{Drinkwater v Police NZHC 1936.}

²⁰ _{Maxwell v Police [2013] NZHC 3172.}

²¹ _{Finch v R [2012] NZCA 446.}

²² Peterson v Police HC Hamilton CRI-2009-419-011, 20 February 2009.