Eru v Police [2019] NZHC 1913 (7 August 2019)

Last Updated: 12 August 2019

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-000039 [2019] NZHC 1913

BETWEEN	SHAYDEN ERU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 August 2019
Appearances:	W Lawson for Appellant M Jenkins for Respondent
Judgment:	7 August 2019

JUDGMENT OF DUFFY J

This judgment is delivered by me on 7 August 2019 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Lance Lawson, Rotorua Crown Solicitors, Rotorua

ERU v NEW ZEALAND POLICE [2019] NZHC `1913 [7 August 2019]

[1] In the District Court Shayden Eru received an overall sentence of imprisonment of two years and six months’ imprisonment.¹ This sentence arose from a series of offending for which he received a mix of cumulative and concurrent sentences.

[2] For the offences committed on 23 August 2018 being: (a) male assaults female;
(b) breach of a protection order; and (c) driving whilst disqualified (for the tenth time) the Judge adopted a starting point for all these offences of two years’ imprisonment.²

[3] For the offences committed on 22 September 2018 being: (a) common assault;
(b) intentional damage, which were committed while Mr Eru was on bail for the 23 August 2018 offending the Judge adopted a starting point of seven months’ imprisonment and said he would impose a cumulative sentence because this offending was unrelated to the earlier offending on 23 August 2018.³

[4] For the offences committed on 26 November 2018 being: (a) driving whilst disqualified (for the 11th time); and (b) careless driving, the Judge adopted a starting point of five months’ imprisonment which he uplifted to seven months’ imprisonment to reflect the fact the third offences were committed while Mr Eru was on electronically monitored bail for the earlier offending.⁴

[5] Mr Eru appealed against the sentences of imprisonment he received on the ground they were manifestly excessive as a result of error on the part of his then counsel, whom he alleged failed to follow instructions. Mr Eru was prepared to participate in a restorative justice conference, which may have had a mitigating effect on his sentence. In addition, there was information relevant to mitigation in the form of medical information and counselling information that should have before the Court but was not.

[6] The Crown has conferred with Mr Eru’s counsel and there is agreement that due to admitted errors that occurred prior to and at the sentencing it is appropriate for

¹ New Zealand Police v Eru [2019] NZDC 7126.

² At [14].

³ At [15].

⁴ At [16].

the appeal to be allowed and the matter referred back to the District Court for sentencing.

[7] I am satisfied the admitted errors warrant the appeal being allowed and that the sentencing should proceed afresh.

[8] I am also concerned that in arriving at the overall sentence the Judge has double counted insofar as aggravating features of the offending against the victim on 23 August 2018 were also taken into account by him when assessing the uplift for the disqualified driving offending on that date as well.

[9] The offence of male assaults female and breach of a protection order occurred while Mr Eru was driving the victim’s vehicle. As part of a continuing course of conduct he slammed on the brakes a number of times, which resulted in the victim being thrown around the interior of the vehicle. He then threatened to crash the vehicle into some parked vehicles, and he lined up the vehicle he was driving in order to do so. The victim managed to stop Mr Eru before he was able to achieve this outcome, and he then punched her in the face.

[10] At [14] of the sentencing notes the Judge said the circumstances of the male assaults female and breach of protection order offending were serious examples of that type of offending, which on their own warranted a starting point of twelve months’ imprisonment. In saying this the Judge must have been referring to the entirety of Mr Eru’s behaviour towards the victim throughout the incident, rather than solely to the punching which occurred at the end of the incident.

[11] The Judge then said, at [14] that the 10th disqualified driving offence was aggravated by the driving of Mr Eru on that day, which endangered the public and the victim. The Judge considered this offending would ordinarily warrant a starting point of 18 months’ imprisonment and here he uplifted the initial start point by a further 12 months to arrive at a starting point of two years’ imprisonment for the 23 August 2018 offending.
[12] My concern is that features of the bad driving on 23 August 2018 have influenced the choice of starting point for both the male assault female/breach of protection order offending and the disqualified driving offending. The impact of the driving on the victim, and any danger it may also have posed to the public, should have been considered when determining the starting point for the male assault female/breach of protection order offending because the driving was a central feature of this offending. It was part of a continuing course of conduct which started with Mr Eru taking control of the victim’s vehicle, frightening and threatening her with his threats of crashing the vehicle and ended with him punching her. Accordingly, for the disqualified driving offending whilst there needed to be consideration of an uplift to recognise the fact Mr Eru was driving while disqualified when he committed the other offences, the consideration should have gone no further than that.

[13] The double counting which appears to have occurred is a further reason why I considered the appeal should be allowed.

Result

[14] The appeal is allowed, and the sentence of two years and six months’ imprisonment is set aside.

[15] Pursuant to s 251(2)(c) of the Criminal Procedure Act 2011 the matter is remitted to the District Court for Mr Eru to be re-sentenced.

[16] The District Court on re-sentencing is directed to take into account the factors that I have identified herein.

[17] Mr Eru has been granted bail pending re-sentencing on terms set out in a minute issued in this proceeding dated 6 August 2019.





Duffy J