IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-63
CRI-2013-463-64 [2013] NZHC 2683

BETWEEN	BRENDON TROY TOA Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	15 October 2013	

Counsel:	
D Hall for Appellant
N Tahana for Respondent	

Judgment:	
15 October 2013	

JUDGMENT OF BREWER J

Solicitors:	Davys Burton (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent

TOA v POLICE [2013] NZHC 2683 [15 October 2013]

[1]       Mr Toa appeals against a sentence of effectively 11 months’ imprisonment

handed down by Judge IB Thomas in the District Court at Rotorua on 21 August

2013.

[2]       The background is a little complicated and I will set it out at this point so as to give context to the discussion following.

[3]       The appellant is 32 years old.  He has a lengthy criminal history. That history shows an almost total disregard for orders of the Court.  On this occasion, he was in trouble for repeatedly driving while he was disqualified. His record in that respect is as follows:

   13 April 2011 – driving while suspended

   13 March 2013 – driving while disqualified   10 April 2013 – driving while disqualified  25 July 2013 – driving while disqualified
   25 July 2013 – driving while disqualified (x3)

[4]       The sentence handed down on 25 July 2013 was for offending in the period

6 April 2013 to 20 April 2013.

[5]       The appellant came before the Court on 25 July 2013 for sentencing on these four most recent charges of driving while disqualified.  The Judge, very mercifully, sentenced him to two months’ home detention.   This is where his troubles really began.

[6]       The period of home detention commenced on 26 July 2013.  Subsequently he pleaded guilty to a charge of breaching home detention by absenting himself from the detention address between 27 July 2013 and 29 July 2013.  He pleaded guilty to a further charge of breaching home detention by absenting himself from the detention address on 5 August 2013.  Finally, on 13 August 2013 he was found in breach of his home detention condition by being away from the home address.   He was also driving a motor vehicle.  He was charged again with driving while disqualified but

was not charged with a third breach of home detention.  In the car was a meth pipe which the appellant pleaded guilty to possessing.

[7]       The above was the situation which the District Court Judge had to contend with on 21 August 2013.   There was, of course, an application for review of the sentence of home detention.

[8]       The District Court Judge had regard to the appellant’s criminal record.   I expect that his Honour would have paid particular regard to previous instances of disregard for Court orders. Some I have picked up from the criminal record are:

   24 August 1998 – failing to answer bail (x2)   26 October 1999 – failing to answer bail
   10 November 1999 – an example of failing to report

   18 August 2000 – failing to answer bail

   19 July 2001 – failing to answer bail

The  appellant  also  has  numerous  convictions  for  dishonesty,  driving  related offending and violence.

[9]       The District Court Judge did not go into much detail as to the reasons why he chose to resolve the sentencing situation in the way he did. However, what is clear is the outcome.  The District Court Judge granted the application for review of home detention and substituted two months’ imprisonment.   On each of the breaches of home detention, two months’ imprisonment was imposed.  For the possession of the meth pipe, two months’ imprisonment was imposed.  All of these sentences are concurrent with each other.   On the charge of driving while disqualified (third or subsequent offence) the District Court Judge adopted a starting point of 12 months’ imprisonment.  The maximum discount of three months’ imprisonment was allowed for the guilty plea, yielding an end sentence of nine months’ imprisonment.   The District Court Judge made this cumulative on the other sentences, resulting in an effective end sentence of 11 months’ imprisonment.   An order of disqualification

from holding or obtaining a driver’s licence for 12 months from 11 April 2015 was further imposed.

[10]     Mr Hall for the appellant submits that the District Court Judge was in error in adopting a start point of 12 months’ imprisonment on the driving while disqualified charge.  In his very sensible submission, it is simply too great a jump to go from two months’ home detention for four such charges to 12 months’ imprisonment for one subsequent charge.   That does not accord with the principle of consistency of sentencing.

[11]     Ms Tahana for the respondent accepts that the sentence was stern but notes the following aggravating factors specific to the offending and the appellant:

(a)       The offending took place while the appellant was serving a sentence of home detention.

(b)	This was one further conviction added to many previous convictions.

(c)       The appellant had made a futile attempt to conceal his offending by entering a car sales yard when he realised he was the subject of Police attention. Initially he denied that he was the driver.

[12]     An appeal against sentence is an appeal by way of rehearing.  That means that I must look at all of the circumstances myself but I will not interfere with the sentence unless I determine that the District Court Judge has fallen into error such that the end sentence reached is manifestly excessive or otherwise inappropriate.

[13]     Given the brevity of the sentencing notes, I need to stand back and analyse the factual background in a little more detail than I otherwise might. The first thing I conclude is that this appellant required a deterrent sentence.   His record, which I have set out above, shows that it is past time that he realises that disobeying Court orders  carries  consequences.    In  my  view,  his  sentence  of  two  months’ home detention for the four driving while disqualified charges was very lenient.   Those charges showed a pattern of contempt for Court orders.  It is a pattern which was

continued notwithstanding the sentence of home detention.   He breached the fundamental point of home detention almost immediately by absenting himself from the home detention address.  He repeated that breach on two subsequent occasions. On the third he was again found driving.  It seems to me that the District Court Judge would have been quite justified on the review of the home detention in substituting a term  of  imprisonment  of  four  months  for  the  two  months’  home  detention. Sentences of two months’ imprisonment each for the two breaches was reasonable. The sentence of two months on the possession of the methamphetamine pipe was also reasonable.  On a totality basis, a sentence of six months’ imprisonment for all of those charges would have been within the acceptable range.

[14]     I turn now to the charge of driving while disqualified, third or subsequent occasion.  The maximum sentence is two years’ imprisonment.  This was the latest in a spate of offending.  The District Court Judge needed to do something firm to bring it home to the appellant that Court orders are to be complied with.  Given that the driving while disqualified was also a breach of the sentence of home detention, the District Court Judge was entitled to reach a start point of 12 months’ imprisonment. The full Hessell discount of 25%, reducing the sentence to nine months’ imprisonment, was also generous given the comments of the Supreme Court to the effect that the strength of evidence can be taken into account in deciding whether or
not to give a full discount.1

[15]     I conclude that the effective sentence of 11 months’ imprisonment was at the lowest end of the scale available to the District Court Judge.  I accept Mr Hall’s point that there is a big jump from two months’ home detention to nine months’ imprisonment.  The jump is justified by having regard to the leniency of the two months’ home detention and the almost immediate repeating of the offending aggravated  by  the  breaching  of  the  home  detention  sentence.     Under  these
circumstances the appeal is dismissed.

Brewer J

1	Hessell v R [2011] 1 NZLR 607; (2010) 24 CRNZ 966.