IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE	
CRI-2024-488-000039
CRI-2024-488-000040 [2024] NZHC 1937	

BETWEEN	METAHA HARLEY RANGI
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	10 July 2024 (via AVL)	
Appearances:	C Murray for Appellant C Megala for Respondent	
Judgment:	16 July 2024	

JUDGMENT OF GORDON J

This judgment was delivered by me on 16 July 2024 at 10 am

……………………………… Registrar/Deputy Registrar

Solicitors:
Davidson & Associates, Kaikohe
Marsden Woods Inskip Smith, Crown Solicitor, Whangarei

RANGI v NEW ZEALAND POLICE [2024] NZHC 1937 [16 July 2024]

[1]	The appellant, Metaha Rangi, pleaded guilty to two charges of driving with excess breath alcohol (EBA) for the third or subsequent time1 and three charges of driving while disqualified for the third or subsequent time.2 Judge D J McDonald sentenced Mr Rangi to 26 months’ imprisonment.3 He appeals his sentence on the grounds that:

(a)	The uplift for the offending on 2 October 2023 (driving while disqualified) was excessive.

(b)	The uplift for prior offending was excessive.

(c)	The guilty plea discount of 20 per cent was inadequate. A full guilty plea discount of 25 per cent was appropriate.

(d)	The Judge erred in adopting a cumulative approach rather than a concurrent approach with the result that the end sentence was manifestly excessive.

[2]	Mr Megala, counsel for the respondent, says the Judge did not err as alleged and submits the end sentence was not manifestly excessive, considering Mr Rangi’s history and the aggravated nature of the offending.

The offending

[3]	On 22 July 2023, Mr Rangi was driving along North Road in Kaitaia when he was stopped by Police. He underwent the excess breath alcohol procedure and returned a level of 597 micrograms of alcohol per litre of breath. He explained that he had “a few beers at a tangi” and was on his way home. At this time, Mr Rangi’s licence

1	Land Transport Act 1998, s 56(1) and (4):  maximum penalty of two years’ imprisonment and  12 months’ disqualification.
2	Section 32(1) and (4): maximum penalty of two years’ imprisonment or a $6,000 fine and more than one year’s disqualification.
3	Police v Rangi [2024] NZDC 10508.

had been indefinitely revoked as part of a sentence for previous EBA and driving while disqualified charges in 2021.

[4]	On 2 October 2023, Mr Rangi was driving along Whitaker Road in Warkworth when he was again stopped by Police. It was discovered that he was a disqualified driver. His car was impounded for 28 days.

[5]	Finally, on 7 May 2024, Mr Rangi was driving a motor vehicle bearing a false registration plate in Te Reinga Street, Kaitaia. He was followed by Police and signalled to stop. He underwent a breath screening test which he failed, returning a level of 702 micrograms of alcohol per litre of breath. He continued to be disqualified from holding a licence. Mr Rangi was arrested as he was in breach of bail conditions for the active charges.

[6]	Accordingly, the offending for which Mr Rangi was sentenced, by date, was:

(a)	22 July 2023: EBA and driving while disqualified;

(b)	2 October 2023: driving while disqualified; and

(c)	7 May 2024: EBA and driving while disqualified.

District Court decision

[7]	There is a mismatch between the sentences the Judge said he would impose and the sentences actually imposed. Further, the end sentence is not correct when the Moses methodology is followed.4

[8]	I set out the relevant parts of the decision to illustrate the above points:

[10]	In my view the start  point  for the first excess  breath alcohol  [on  22 July 2023] of 12 months is appropriate. There needs to be an uplift for the driving while disqualified of two months, an uplift for the driving while disqualified on 2 October 2023 of six months. In addition to that, there needs to be an uplift for the one last night with a much higher level, but I look at totality of 10 months, making a start point of 30 months.

4	Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[11]	I look at personal matters.

[12]	I have already counted the excess breath and the driving while disqualified but you have other breaches of the Land Transport Act. I consider an uplift for that of about four months is appropriate.

[13]	In your favour, and the only thing in your favour is your plea of guilty
and I give you 20 per cent for that. [emphasis added]
[9]	Under the Moses methodology, the end sentence would be 28 months’ imprisonment (as opposed to 26 months’ imprisonment in fact imposed).5

[10]	Then, when the Judge passed sentence, although the total for the starting point was the same, namely 30 months, the individual sentences differed from what was said by the Judge in [10]. The Judge imposed sentence as follows:

[15]	I deal with you in this way:

(a)	In regards to s 16 of the Act, for the driving with excess breath alcohol [on 22 July 2023], you will be convicted and sentenced to 10 months’ imprisonment. You will be disqualified from holding or obtaining a driver’s licence for 12 months which will commence on your release from prison.

(b)	In relation to driving while disqualified on that occasion,  [22 July 2023], you will be convicted and sentenced to four months’ cumulative on the 10 months, making 14 months, and disqualified for 12 months the same way.

[11]	Mr Rangi was accordingly sentenced to 14 months’ imprisonment for the offending on 22 July 2023. However, instead of 12 months for the EBA charge and two months for the driving while disqualified charge as stated in [10] of the decision, the actual sentences were 10 months for the EBA and four months for the driving while disqualified charge.

[12]	The sentencing continued as follows:

(c)	For driving while disqualified on 2 October, you will be convicted and sentenced to four months’ imprisonment and disqualified from driving for 16 months on your release from prison.

5	See discussions of sentencing methodology in: Gray v R [2020] NZCA 548 at [31]; Stuart v R [2021] NZCA 539 at [14]–[16]; Wong-Tung v R [2024] NZHC 473 at [21]–[22]; and Nandan v New Zealand Police [2024] NZHC 505 at [63]–[67].

[13]	As is apparent, Mr Rangi was sentenced to four months’ imprisonment on the standalone driving while disqualified charge on 2 October 2023, whereas in [10] of the decision the Judge indicated the uplift for that charge would be six months’ imprisonment.

[14]	Finally, the Judge sentenced Mr Rangi as follows:

(d)	The one last night, [7 May 2024], you will be convicted and sentenced to 12 months’ imprisonment and disqualified for the same 16 months for a disqualification of four months and disqualified for 16 months.

[15]	As is apparent, Mr Rangi was sentenced to 12 months’ imprisonment for the offending on 7 May 2024, whereas the Judge said in [10] that he would impose a sentence of 10 months. However, the differences in [15(c)] and [15(d)] net off against each other so that the total for the individual sentences is 30 months’ imprisonment.

[16]	Without then referring to the uplift for prior offending or the discount for the plea of guilty, the Judge then continued as follows:

[16]	The end sentence is one therefore of 26 months’ imprisonment. Because it is over the two years, there are no release conditions.

[17]	Mr Megala confirmed that the  warrant  as  signed  by  the  Judge  was  for  26 months’ imprisonment. Ms Murray, counsel for Mr Rangi, accepts that is the case.

Prior offending

[18]	It is useful at this point to set out Mr Rangi’s relevant criminal history. He has a lengthy history of non-compliance with the Land Transport Act 1998, as follows:

(a)	Eight previous convictions for driving with excess breath alcohol.

(b)	Six previous convictions for unlicensed or disqualified driving.

(c)	Three previous convictions for dangerous driving causing injury.

(d)	Two previous convictions for dangerous driving.

(e)	One previous conviction for careless driving.

(f)	One previous conviction for refusing to accompany an enforcement officer.

(g)	One previous conviction for failing to stop to ascertain injury.

(h)	One previous conviction for failing to remain stopped for an enforcement officer.

(i)	One previous conviction for providing false details.

[19]	Mr Rangi was accordingly for sentence on his ninth and tenth convictions for EBA and his seventh, eighth and ninth convictions for driving while disqualified.6

Approach on appeal

[20]	This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.7 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.8

[21]	The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The focus is on the end result rather than the process by which the sentence was reached.9 In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).10

6	Mr Rangi has three previous convictions for driving while disqualified and three previous convictions for driving while suspended. There is no distinction between the two: Laurence v Police [2013] NZHC 197 at [16]–[17] and [21].
7	Criminal Procedure Act 2011, s 250(2).
8	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
9	At [36].
10	At [36].

Uplifts

Second driving while disqualified charge (2 October 2023)

[22]	Ms Murray approached her submissions on the basis that the Judge imposed an uplift of  six  months for  the  standalone  driving  while  disqualified charge  on  2 October 2023. Ms Murray submits that this was excessive. She says the uplift imposed should have been on a par with what she says was a two-month uplift for the first driving while disqualified charge (on 22 July 2023) or, alternatively, a modest increase of three months.

[23]	Although the Judge said at [10] he would be adding an uplift of six months for the driving while disqualified charge on 2 October 2023, in fact when he came to sentence Mr Rangi, the sentence was four months’ imprisonment (refer to [15(c)] set out at [12] above). As to a comparison with the 22 July 2023 driving whilst disqualified charge, again, although the Judge indicated the uplift would be two months, the actual sentence on this charge was four months’ imprisonment (refer to [15(b)] set out at [10] above).

[24]	Mr Megala submits even assuming the uplift was six months, this was justified considering the offence occurred while on bail and it was a standalone offence, warranting a distinct approach as compared with the first driving while disqualified charge.

[25]	The Judge was clearly alive to the principle of totality when considering the uplifts to be imposed for Mr Rangi’s additional charges.11 Further, the uplift imposed for the second driving while disqualified charge is within the range as identified in cases with similar offending, especially in the context of repeated offending for which the defendant had been subject to sentence.12 In the present case, Mr Rangi had previously been sentenced to seven months’ imprisonment on 18 November 2021 for driving while disqualified on 4 June 2021.

11	Police v Rangi, above n 3, at [10].
12	Birch v Police [2017] NZHC 841; Opetaia v Police [2015] NZHC 2532.

[26]	There was no error in the uplift of four months (nor in the indicated uplift of six months which was not in fact imposed).

Previous breaches of the Land Transport Act

[27]	The Judge addressed the uplift for previous offending saying:

[12] I have already counted the excess breath and the driving while disqualified but you have other breaches of the Land Transport Act. I consider an uplift for that of about four months is appropriate.

[28]	Both counsel were agreed on the meaning to be taken from the above paragraph. That is, that the Judge had already taken into account prior EBA offending and driving whilst disqualified offending when setting the starting points for the current charges. The four months’ uplift was accordingly for other prior breaches of the Land Transport Act.

[29]	Ms Murray submits that a four month uplift for that other prior offending is excessive. She says many of those offences attracted a maximum penalty of a fine or three months’ imprisonment. She argued that the uplift should have been no more than two months.

[30]	I do not agree. Mr Rangi has three previous convictions in 2018 of excess breath alcohol causing injury for which he received concurrent sentences of two years and two months’ imprisonment. Also in 2018, there are three convictions for driving dangerously causing injury for which he received concurrent sentences of two years and two months’ imprisonment. Having regard to those convictions and other convictions (separate from EBA and driving whilst disqualified offending) under the Land Transport Act, I do not consider the Judge erred in adding an uplift of four months’ imprisonment.

Guilty plea

[31]	Ms Murray submits that Mr Rangi should have been given a 25 per cent discount for his guilty plea, which she says was entered for all charges at the earliest opportunity.13

[32]	While Mr Megala acknowledges that the guilty pleas were entered at an early stage, he submits the 20 per cent discount was appropriate as the pleas were entered two months after the charges were laid and in the face of a strong prosecution case.

[33]	I do not consider the Judge erred. While guilty pleas for the 7 May 2024 charges were entered promptly, in fact on the following day, Mr Rangi had failed to appear on the earlier charges causing a delay of around two months. In some circumstances, a period of two months after charges are laid, and before a guilty plea is entered, might warrant a full 25 per cent discount. Not so here. The charges were straightforward and there was a strong case for the prosecution. Mr Rangi delayed the entry of guilty pleas by failing to appear. A 20 per cent discount was appropriate.

Cumulative sentence

[34]	Ms Murray argues that the cumulative approach taken by the Judge resulted in a manifestly excessive sentence and a concurrent approach should have been taken.

[35]	Mr Megala submits that this does not accord with the Court of Appeal’s approach in Hughes, considering the offences bear several of the Clotworthy aggravating factors and are different in kind and circumstance.14

[36]	Clotworthy v Police continues to provide the framework for sentencing third or subsequent EBA charges in terms of aggravating and mitigating factors:15

[a]	The breath or blood alcohol level.

[b]	The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).

13	Counsel referred to the principles in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
14	Hughes v R [2012] NZCA 388.
15	Clotworthy v Police HC Wanganui CRI-2003-483-13, 25 September 2003 at [20].

[c]	Conviction for two or more drink driving offences in close succession.

[d]	The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).

[e]	Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).

[f]	The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.

[g]	The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.

[h]	The offender’s record, if any, of convictions for other types of offending.

[i]	Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.

[j]	Any mitigating personal or family circumstances contributing to the offending.

[37]	In Samson v Police, Whata J considered the Clotworthy features:16

I regard items [a]–[e] as aggravating factors for the purpose of assessing the start point for the offending, while [g] and [h] are relevant to uplift for aggravating personal circumstances. Items [f] and [i]–[j] are mitigating factors.

[38]	Further, upon review of other drink-driving sentencing authorities, Whata J identified the spectrum of available starting points:17

(a)	No seriously or only moderately aggravating factors, 9–12 months;

(b)	One or more seriously aggravating factors, 12–18 months;

(c)	Multiple offences with seriously aggravating factors, 18–20 months; and

(d)	Multiple offences and very serious aggravating factors (ie offending of the worst kind), 20–24 months.

16	Samson v Police [2015] NZHC 748 at [13]–[14].
17	At [15].

[39]	Seriously aggravating factors included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending and/or a prolonged and continuous history of driving-related offending.18

[40]	In Hughes v R, the Court of Appeal confirmed that a cumulative sentencing approach was appropriate for this type of offending:19
We are satisfied that the two offences involved in this case are different in kind. As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety. While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders. Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice. In those circumstances, cumulative sentences of imprisonment are generally appropriate in terms of s 84(1) whether or not they relate to a connected series of offences.

[41]	The Court of Appeal further commented on the relevance of recidivism in relation to similar offending:20

… it was open for the Judge to impose cumulative sentences in the context of this case. We are satisfied he did not err in law. He was entitled to impose cumulative sentences in the circumstances. The appellant's recidivism in relation to similar offending was a factor the Judge was entitled to take into account as an aggravating circumstance calling for a deterrent sentence. It was open for the Judge to conclude that the appellant's case was within (or at least near to) the most serious of that kind and that the combination of offences was such that concurrent sentences would not adequately reflect the overall culpability of the offender.

[42]	The Judge made reference to Mr Rangi’s significant history of like offending. That history demonstrates an established pattern of recidivist offending which brings to the fore the principle of deterrence in imposing the sentence, a matter to which the Judge was clearly alive.

[43]	Mr Rangi has previously been subject to multiple sentences of imprisonment for identical offending — this has clearly been insufficient to deter him. Against the background of the prior offending, the end sentence is well within the range available to the Judge. I do not find that the Judge erred in this respect.

18	At [16].
19	Hughes v R, above n 14 , at [22].
20	At [34].

[44]	Further, as earlier noted, Mr Rangi is the beneficiary of an error in the Judge’s calculations. The sentence imposed should have been 28 months’ imprisonment rather than 26 months’ imprisonment.

Result

[45]	The appeal is dismissed.

Gordon J