Hemopo v Police [2024] NZHC 3094 (23 October 2024)

Last Updated: 7 November 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-488 [2024] NZHC 3094

BETWEEN	TAHUWAKA TIRA HEMOPO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 October 2024
Appearances:	S J Morgan for Appellant K Venter for Respondent
Judgment:	23 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 23 October 2024 at 3 pm

Registrar/Deputy Registrar

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

Solicitors/Counsel:

Public Defence Service, Manukau Kayes Fletcher Walker, Auckland

HEMOPO v NEW ZEALAND POLICE [2024] NZHC 3094 [23 October 2024]

• [1] On 6 September 2024, Mr Hemopo appeared for sentencing in respect of six offences:

(a) On 18 October 2023, driving while disqualified (third or subsequent offence).

(b) On 29 February 2024:

(i) driving while disqualified (third or subsequent offence);

(ii) driving under the influence of a class A drug;

(iii) resisting police; and

(iv) possessing a knife in a public place.

(c) On 5 June 2024, failing to appear.

• [2] Judge N R Webby sentenced the appellant to 20 months’ imprisonment.¹

• [3] The appellant contends that the sentence was manifestly excessive, because of the following errors:

(a) imposing a starting point above the available range for comparable offending;

(b) applying an excessive uplift for the charges of resisting arrest, possession of a knife and failing to answer bail; and

(c) failing to provide a discrete discount for time spent on restrictive bail.

¹ R v Hemopo [2024] NZDC 21635.

Legal principles

• [4] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.² Generally, the sentence must be shown to be manifestly excessive or wrong in principle.³ The focus is on the end sentence imposed, rather than the process by which it is reached.⁴

• [5] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.⁵

• [6] Appellate courts do not indulge in mere tinkering with a sentence.⁶ The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

• [7] Where there are multiple offences, as in the present case, a challenge to a sentence imposed for a particular offence will automatically bear the question of whether the ultimate sentence offended against the totality principle.⁷

The offending

• [8] The circumstances surrounding the first driving while disqualified charge were as follows:

(a) On 12 March 2021, the appellant was convicted of driving while disqualified. On 8 June 2022, the appellant was convicted of driving while disqualified.

² Criminal Procedure Act 2011, s 250.

³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

⁴ At [36].

⁵ At [32].

⁶ R v Boyd [2004] NZCA 342; (2004) 21 CRNZ 169 at [38].

⁷ R v MacCulloch [2004] NZCA 221; [2005] 2 NZLR 665 (CA) at [50].

(b) On 18 October 2023 at approximately 4.10 am, the appellant was driving a stolen motor vehicle. He was stopped by police in Takanini and found to be driving while disqualified.⁸

(c) The appellant admitted to not having a licence and when questioned about driving stated, “Bro, I don’t know”.

• [9] The relevant circumstances of the February 2024 charges are as follows:

(a) In addition to the driving while disqualified convictions outlined above, the appellant was convicted on 7 June 2023 on charges of driving a motor vehicle in a dangerous manner and failing to stop when followed by red/blue flashing lights (third or subsequent).

(b) On 19 December 2023, the appellant was issued a warrant to arrest by the Manukau District Court after failing to appear in Court in relation to the offending described at [8] above.

(c) Between December 2023 and February 2024, police conducted extensive enquiries to locate and arrest the appellant in the South Auckland area.

(d) On 29 February 2024 at 12 pm, police identified that the appellant was driving a motor vehicle around the Manurewa and Clendon Park area. At around 2 pm, the appellant drove to a residential address in Clendon Park.

(e) Staff were deployed to the address to arrest the appellant. The staff included members of the Armed Offenders Squad.

(f) Police approached the address, and the appellant was observed standing by the motor vehicle. He was advised that he was under arrest.

8. The appellant was disqualified from driving for six months on 7 June 2023 for two years and six months on charges of driving a motor vehicle in a dangerous manner and failing to stop when followed by red/blue flashing lights (third or subsequent).

(g) The appellant ignored the instructions, entered the motor vehicle and started the engine. He reversed up the driveway at the same time as the police drove down the driveway. The appellant stopped abruptly, just short of hitting the police vehicle. He then drove forward and crashed into the garage at the address.

(h) The appellant then exited the motor vehicle, was non-compliant and began yelling obscenities at the police. He was called to surrender but removed an unidentified weapon from his waistband. He held the weapon in his hand while yelling obscenities at the police.

(i) The appellant walked inside the residential address, discarding the weapon (a knife with a 10 cm blade) as he entered the garage.

(j) The appellant was located inside the garage where he continued to be non-compliant until he was arrested by the police.

(k) The appellant was taken to Middlemore Hospital for injuries he suffered during the arrest. While being transported, he stated that he had consumed some drugs during the day.

(l) Blood samples taken at Middlemore Hospital returned a positive result of blood containing 470 nanograms of methamphetamine per millilitre of blood (the high-risk legal limit is 50 nanograms).

• [10] The charge of failing to answer District Court bail arose on 5 June 2024.

District Court proceeding

• [11] Guilty pleas to the above charges were entered at a case review hearing on 5 September 2024. The Court accommodated the appellant’s request to conduct sentencing promptly, ordering a standdown pre-sentence report, and holding the sentencing hearing the following day on 6 September 2024.
• [12] At that hearing, the Judge had the benefit of sentencing submissions filed for the appellant, but no police submissions were filed.

• [13] The Judge gave the following sentence:

Offending

(a) A starting point of 18 months’ imprisonment for the two lead charges of driving while disqualified (third or subsequent).

(b) An uplift of two months’ imprisonment for driving under the influence of a class A drug.

(c) An uplift of four months’ imprisonment on a totality basis to reflect resisting arrest, possession of a knife in a public place and failing to answer court bail.

Personal aggravating factors

(d) An uplift of four months’ imprisonment to reflect previous convictions.

(e) An uplift of two months to reflect offending on bail.

Personal mitigating factors

(f) A full guilty plea discount of 25 per cent, equating to six months.⁹

(g) A further reduction of four months for remorse and personal circumstances.

• [14] On each charge of driving while disqualified (third or subsequent), Mr Hemopo was sentenced to 20 months’ imprisonment (concurrent) and disqualified from driving for 18 months (also concurrent).

⁹ Applied to the 24 months’ imprisonment global starting point for the offending.

• [15] Mr Hemopo was sentenced to three months’ imprisonment to be served concurrently for each of the remaining charges. For the charge of driving under the influence of a class A drug, Mr Hemopo was also disqualified for a period of 18 months’ imprisonment (concurrent). An order was made for destruction of the knife.

• [16] Post-detention conditions were set for six months.

Starting point

• [17] An offence of driving while disqualified, being a third or subsequent offence, carries a maximum of two years’ imprisonment.¹⁰ The sentence should reflect the number of times the offender has failed to comply with disqualification orders and whether there are accompanying aggravating features (such as by driving, or driving under the influence of alcohol, which raise public safety concerns).¹¹

• [18] There are two accepted approaches to fixing a starting point for multiple driving while disqualified offences.¹²

(a) The Drinkwater v Police approach takes into account all of the defendant’s previous driving while disqualified convictions in fixing a starting point.¹³

(b) The alternative approach is to assume the offending was a third offence (the qualifying number), set a start sentence for such offending, and then uplift the sentence to reflect the actual number of past disqualified driving offences.¹⁴

• [19] The Drinkwater approach appears to have more judicial support.¹⁵

¹⁰ Land Transport Act 1998, s 32(4).

¹¹ Lord v Police [2015] NZHC 1756 at [19].

¹² Tuhiwai v Police [2016] NZHC 3042 at [27].

¹³ Drinkwater v Police [2013] NZHC 1036 at [18].

¹⁴ Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009 at [10].

¹⁵ Opetaia v Police [2015] NZHC 2532 at [36].

• [20] No issue is taken with the Judge’s methodology in applying the Drinkwater approach to set the starting point for the driving while disqualified offences in this case. However, the appellant submits that the starting point of 18 months’ imprisonment was above the reasonably available range, considering comparable cases:

(a) In Tuhiwai v Police,¹⁶ Mr Tuhiwai received a global starting point of 12 months’ imprisonment for his third, fourth and fifth offences for driving while disqualified. This was structured as two months’ imprisonment for the third offence, a cumulative four months for the fourth offence, and a cumulative six months for the fifth offence. On appeal the starting point of 12 months was “near the limit of the appropriate range to reflect Mr Tuhiwai’s five convictions for driving while disqualified (third or subsequent)”.¹⁷

(b) In Finch v R,¹⁸ in addition to a starting point of six months’ imprisonment for the charge of attempting to pervert the course of justice, a further 14 months of imprisonment adopted as a starting point for his fifth, sixth and seventh convictions for driving while disqualified was upheld on appeal.

(c) In Jonathan v Police,¹⁹ a global starting point of 16 months’ imprisonment was adopted for the sixth and seventh offences of driving while disqualified and upheld on appeal.

(d) In Whitely v Police,²⁰ an overall starting point of 18 months’ imprisonment was considered appropriate on appeal for Mr Whitely’s ninth, tenth and eleventh convictions for driving while disqualified.²¹

¹⁶ Tuhiwai v Police, above n 12.

¹⁷ At [31].

¹⁸ Finch v R [2012] NZCA 446.

¹⁹ Jonathan v Police [2019] NZHC 1115.

²⁰ Whitely v Police [2016] NZHC 1025.

²¹ At [31].

• [21] The respondent acknowledges that the starting point of 18 months’ imprisonment was stern and on the margins for offending of this kind. In the circumstances, the respondent submits that a total of 16 months’ imprisonment for the appellant’s third and fourth convictions for driving while disqualified would have been appropriate. It contends that adjusting for a starting point difference of only two months would amount to tinkering.

• [22] I accept that setting a starting point of 18 months’ imprisonment for the two lead charges of driving while disqualified was outside the reasonable range indicated by comparable cases and is therefore an error.

• [23] Taking into account the cases referred to above, I accept the appellant’s submission that the appropriate starting point for Mr Hemopo’s driving while disqualified offending is 12 months’ imprisonment. This is a starting point appropriately lower than Finch for his fifth, sixth and seventh convictions (14 months).

Uplift for other charges

• [24] The appellant also contends that the uplift of four months for resisting arrest, possession of a knife in a public place and failing to answer court bail was excessive.

• [25] The maximum penalty for each of the charges of resisting arrest and possession of a knife is three months’ imprisonment. Failure to answer bail carries a maximum penalty of one year’s imprisonment.

• [26] The appellant relies on the cases of Makiri v Police²² and R v Walker-Haturini²³ as demonstrating that a one month uplift would be appropriate for the combined charges of resisting arrest and possession of a knife, occurring at the same time as the driving while disqualified offending. In respect of the failure to answer court bail, the appellant submits that an uplift of one month imprisonment is appropriate and in accordance with the totality of the offending. In other words, the appellant wishes to substitute an uplift of only two months’ imprisonment (rather than

²² Makiri v Police HC Auckland CRI-2007-404-48, 16 July 2007.

²³ R v Walker-Haturini [2021] NZHC 1208.

four) in respect of the charges of resisting arrest, possession of a knife in a public place, and failing to answer court bail.

• [27] With reference to Davis v Police,²⁴ I accept that the four month uplift applied by the sentencing Judge was within range considering the principle of totality. I take into account that this was a more serious instance of possession of a knife in a public place, given that the knife was 10 cm long and being held by the appellant while he was verbally abusing the police. I find that there was no error on this aspect.

Time on electronically monitored bail

• [28] Mr Hemopo’s time spent on electronically monitored (EM) bail came to an end when he absconded. Mr Hemopo was later released on compassionate bail between 13 August 2024 and 16 August 2024 to attend a tangi. The appellant contends that a reduction in the order of one month would be appropriate to give credit for the time he spent remanded on bail subject to strict conditions.

• [29] I accept the submissions of the respondent that it is entirely orthodox for non-compliance to undermine any potential discount for time spent subject to restrictive bail conditions.²⁵ One of the mandatory considerations is the offender’s compliance with the bail conditions.²⁶

• [30] I accept that Judge Webby did not make any error in declining to provide any credit for time spent on EM bail in circumstances where Mr Hemopo absconded within one month of bail being granted.

Overall assessment

• [31] The overall effect of the above would be a change from the global starting point of 24 months’ imprisonment for the charges, to one of 18 months.

²⁴ Davis v Police [2024] NZHC 2742.

²⁵ See, for example, R v Bidois [2009] NZCA 426; R v Bishop [2009] NZCA 265; Murray-MacGregor v R [2011] NZCA 66; Gage v R [2014] NZCA 140; Roberts v R [2021] NZHC 2128; Bird v R [2023] NZCA 308; and Agar v R [2021] NZCA 350.

²⁶ Sentencing Act 2002, s 9(3A)(c).

• [32] This then impacts on the calculation of the discount for the guilty plea. A full credit of 25 per cent was given for the guilty plea — this applied to the global starting point for the offending but not to the aggravating or mitigating factors personal to the appellant. Accordingly, the guilty plea discount is not applied in respect of the uplift for the previous convictions or offending on bail. Recalculating this for the new global starting point results in a guilty plea deduction of four months and two weeks.²⁷

• [33] I consider it appropriate that the other uplifts and deductions should remain as determined by the sentencing Judge.

• [34] The result is an end sentence of 15 months and two weeks’ imprisonment for the charges of driving while disqualified (third and subsequent), as opposed to one of 20 months. Assessing that end result, I consider that fair and reasonable for the totality of the offending and the other circumstances personal to the appellant.

Result

• [35] The appeal is allowed. The sentences of 20 months’ imprisonment imposed in the District Court on the two charges of driving while disqualified (third or subsequent) are quashed. On each of those charges, a sentence of 15 months and two weeks’ imprisonment to be served concurrently is substituted. For the avoidance of doubt, the disqualification period of 18 months on both charges remains.

• [36] Otherwise, all of the other concurrent sentences imposed in the District Court are to remain in place, including post-detention conditions.

O’Gorman J

²⁷ The appellant’s submissions recalculated an end sentence that purported to apply the guilty plea discount not only to the offending, but also to uplifts for the appellant’s other personal aggravating circumstances.