Heke v R [2019] NZHC 1833 (31 July 2019)

Last Updated: 19 September 2019

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI 2019-412-000015 [2019] NZHC 1833

BETWEEN	REAGAN MANO JOHN HEKE Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2019
Counsel:	B P Kilkelly for Appellant C E R Power for Respondent
Judgment:	31 July 2019

JUDGMENT OF SIMON FRANCE J

[1] The appellant appeals a sentence of 32 months’ imprisonment imposed for dangerous driving causing injury and possession of methamphetamine.¹

Facts

[2] Mr Heke, in December 2017, was the driver of a car that lost control on a bend. He was arguing with his girlfriend at the time. It was a left-hand bend and the car travelled across the road hitting two parked cars on the other side and damaging a third. It is estimated Mr Heke was travelling between 99 to 117 kph in a 50 kph area. Mr Heke and his two passengers were all injured. The passenger in the back right seat was knocked unconscious; his door had come off in the accident. The front seat passenger hit the windscreen with her head. No one in the car was wearing a seatbelt. Mr Heke also suffered some injury.

¹ New Zealand Police v Heke [2019] NZDC 6255.

HEKE v R [2019] NZHC 1833 [31 July 2019]

[3] At the scene Mr Heke was aggressive with bystanders. He then got back in his damaged car and sought to drive off but eventually the car failed. Mr Heke ran off.

[4] Concerning the possession of methamphetamine, Mr Heke was located hiding in a cupboard during the execution of a search warrant. The background was that Mr Heke was on the run having failed to turn up for trial on the driving charge. In the cupboard was a bag in which there was 10.49 grams of methamphetamine and other paraphernalia. Mr Heke was charged with possession for personal use of 4.9 grams.

[5] Mr Heke, now aged 37, has a lengthy criminal record. In the last five years he has six drug offences, none of which attracted imprisonment. There were, however, other offences in this same period that did lead to imprisonment. Mr Heke’s last significant driving offence was driving without a licence in November 2013. Since January 2013, he has 12 events that have resulted in demerit points including three speeding and one crossing a yellow line.

[6] The sentencing Judge recorded the facts and went into some detail about Mr Heke’s conduct at the scene. It is clear he was aggressive, confronted people, and sought to pick fights. He displayed no concern for those injured.

[7] The District Court Judge took a starting point of two years and six months’ imprisonment, added three months’ for a serious example of simple drug possession, two months for previous offences and two months for offending on bail. That led to an aggravated starting point of 37 months’. A single credit of 10 per cent was given for the guilty plea and restorative justice efforts, leaving a term of 33 months. One further month was deducted to have regard to a reparation order, leaving the final sentence at two years and eight months’ imprisonment.

Appeal submissions

[8] On appeal it is first submitted the starting point for the driving offence was too high. Mr Kilkelly urged the Court to put to one side the aggressive conduct at the scene as it is a reasonable inference that it was the product of a head injury. The other uplifts are all submitted to be excessive, with particular focus on the uplift for
offending while on bail. Mr Heke had committed other offences in this time and been sentenced on them. That sentencing exercising included sentencing for breach of bail.

[9] Concerning past offending it is noted that the last driving conviction was 2013, and that the bulk of recent drug convictions were all dealt with on a single sentencing occasion and resulted in a total sentence of 60 hours community work. It was not therefore a criminal record requiring an offending uplift.

[10] Finally, it is submitted the credit given for the guilty plea and restorative justice efforts were inadequate. A plea to the methamphetamine was indicated well in advance of the formal plea. The appellant was genuine in his restorative justice efforts; it was the victim (his former girlfriend) who twice did not turn up.

Decision

[11] I accept the Crown submission that there is no evidential basis to dismiss the conduct at the scene in the way suggested. There is no statement from Mr Heke explaining away his conduct in this manner, and the medical records do not support it. Mr Heke’s criminal record involves a number of offences of violence in his recent past, and the conduct at the scene is more easily referable to an established pattern.

[12] I do not understand there to be any other challenge to the starting point but observe I agree with it. The speed was around twice the limit, and the accident was undoubtedly a product of it. Three people were hurt, as well as damage to four cars including the appellant’s. The mid-range starting point acknowledges that on a comparative basis the resulting injuries are not as bad as one sometimes gets. Mr Heke’s conduct at the scene, threatening people trying to help the injured, was rightly seen as an aggravating factor.

[13] The three month uplift for a sizeable quantity of methamphetamine cannot be challenged; it is half the maximum and it is difficult to imagine offenders with greater quantities not being charged with a more serious offence. It does appear to indicate that contrary to his own assertions, Mr Heke had a significant methamphetamine problem.
[14] There is more strength in the challenge to the other two uplifts. On the face of it, the criminal conviction history does not demand an uplift. The last driving offence was 2013 and was driving without a licence. Mr Heke does, however, have three offences of speeding in a 50 kph area, committed in 2013, 2015 and 2017. Concerning drug offending, since the five drug offences were dealt with at the one time in January 2015 with a 60 hour community work sentence, there was a single offence of possessing utensils which received a one month concurrent sentence in December 2018. That drug offending had occurred in February 2018. Mr Heke was on bail in relation to it when he was found in the cupboard again in possession of methamphetamine.

[15] This aspect leads onto the issue of the bail uplift. In December 2018 Mr Heke was sentenced on several offences, including breach of bail. That breach primarily related to him not turning up for the first intended trial of his dangerous driving charge. However, it covered other offending on bail. I consider there is little profit in seeking to over-analyse the extent to which there was additional culpability on this occasion for offending while on bail. I agree with Mr Kilkelly that the topic was sufficiently addressed in the December sentencing. Overall, my view is that while there are arguments either way on these two aspects, the four month uplift for these two features was excessive by three months.

[16] Turning to the credits, I see little merit in the challenge. Whichever way one looks at it, the driving plea was entered a long time after the commission of the offence. The other plea was not particularly early and was made in the face of an overwhelming case. A total allowance of 10 per cent for all mitigating factors was not insufficient.

Conclusion

[17] I allow the appeal by adjusting for the reduced uplifts. I am conscious it leads only to a modest change but having identified a discrete basis for change, I consider it appropriate to give Mr Heke the benefit of it. I do so because the reason for the charge is that the offending on bail component has been double counted, which is a matter that should be redressed.
[18] The appeal is allowed. The sentence of two years and eight months’ on the dangerous driving causing injury charge is quashed, and in its place, I impose a sentence of two years and six months’.

[19] All other aspects of the sentence are unchanged.







Simon France J