Affleck v Police

[2017] NZHC 3220

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-151 [2017] NZHC 3220

BETWEEN

DYLAN WILLIAM AFFLECK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 December 2017
Appearances:	L Acland for the Appellant B Hawes for the Respondent
Judgment:	19 December 2017

JUDGMENT OF MANDER J

[1]      The appellant, Mr Dylan Affleck, was sentence by Judge Couch to 15 months’ imprisonment after pleading guilty to one charge of driving whilst disqualified being a third or subsequent offence, and one charge of breaching release conditions.1    He appeals that sentence on the grounds it is manifestly excessive and that home detention should have been imposed.

Background

[2]      In 2012, Mr Affleck was disqualified from driving indefinitely following a drink-driving conviction.  In March 2017, he was stopped by police while driving in Nelson.   That gave rise to the present charge of driving whilst disqualified which

represents Mr Affleck’s tenth conviction since he was indefinitely disqualified.

1      Police v Affleck [2017] NZDC 2299.

[3]      On 31 October 2016, Mr Affleck was released on parole on standard release conditions after being imprisoned on two charges of driving whilst disqualified, theft of a car and unlawfully taking a motor vehicle.  After relocating from Dunedin to Christchurch in August 2017, he was of no fixed abode. As a result, he was instructed to report daily.  After three weeks of that arrangement he failed to report.  He was charged accordingly.

Sentencing

[4]      Judge  Couch  noted  what  he  described  was  Mr Affleck’s  “extraordinary background” of driving whilst disqualified offending since his indefinite disqualification.  Because it was Mr Affleck’s tenth conviction in the space of four years, the Judge considered the gravity of the offending to be “near the most serious possible for this offence”. He adopted a starting point of 20 months on the lead charge of driving whilst disqualified.

[5]      While the Judge mentioned Mr Affleck’s other criminal history, including 10 dishonesty offences and numerous other driving offences, he did not impose any uplift. He applied a full 25 per cent discount for guilty plea which resulted in an overall sentence of 15 months’ imprisonment.   The Judge made mention of the breach of release conditions charge, but did not apply an uplift. A concurrent two month prison sentence was imposed.

[6]      As the sentence was less than two years, the Judge turned his attention to whether home detention would be appropriate.  He decided it would not because:2

Such repeated, blatant disregard for Court orders requires strong denunciation and deterrence, not only of you but of other people as well.  In my view, you have now passed the point where any sentence short of imprisonment would achieve the purposes of the Sentencing Act.

[7]      While somewhat academic given the indefinite disqualification, a further finite period of disqualification of one year was imposed.

2 At [7].

Appeal out of time

[8]      Mr Acland on behalf of Mr Affleck seeks leave to appeal out of time.  Legal aid was not granted on a full basis until after the appeal period lapsed.  Mr Acland submitted the appellant acted quickly in bringing the appeal once legal aid was confirmed.   The delay appears to have been unavoidably incurred and it does not appear there is any prejudice to the Crown.  Leave is granted.

Jurisdiction and approach to appeal

[9]      Mr Affleck appeals as of right.3   This Court can only allow the appeal if it is satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.4    If the sentence under appeal can properly be justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge.  The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

[10]     It is not enough that a Judge made an error in his or her reasoning: the focus is on the overall sentence imposed rather than the process by which the sentence was reached or its component parts.5

First ground of appeal: manifestly excessive

[11]   Mr Acland took issue with the overall starting point of 20 months’ imprisonment.   He submitted it should have been between 12 to 18 months.   He referred to a number of cases in his written submissions, singling out Keenan v Police as particularly supportive of his submission.6   There, a 20 month starting point was upheld on appeal by Dunningham J, who characterised it as “high, but not outside the allowable range”.   In that case, the offender was being sentenced on his eleventh driving whilst disqualified conviction over a period of four and a half years, and also had six prior driving while prohibited convictions on his record.  Mr Acland, rather

optimistically, submitted the fact this is only Mr Affleck’s tenth and the fact he has no

3      Criminal Procedure Act 2011, s 244.

4      Section 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Keenan v Police [2014] NZHC 1894.

other related offences in his criminal history means a lower starting point should have been adopted.

[12]     Mr Acland also submitted the Judge did not take into account his explanation of why he committed the offence.  He says the other occupant in the car at the time was intoxicated and Mr Affleck had chosen to drive in order to stop his associate from doing so. Mr Affleck has sworn an affidavit setting out these details. He says that his “mate was so drunk he couldn’t even put the keys in the door” but that “he was wanting to drive because he was freaking out that his daughter was not going to be picked up from kindergarten”.  He said that he “made a snap decision out of impulse to drive to get my mate out of his bad situation”. I will comment further on this explanation later in this judgment, but I do not consider it is one which is capable of mitigating his offending.

[13]     Mr Acland further observed that Mr Affleck has ADHD-related behavioural issues and this should have been taken into consideration. In his affidavit, Mr Affleck says, “if  I was on my meds (for ADHD) I wouldn’t have [driven my friend]”. However, again, as with the situation where Mr Affleck chose to drive, this is a factor entirely within his own control and cannot mitigate his actions.  That he is offering such excuses does not bode well for his future motivation to comply with his obligations not to drive.

Analysis

[14]     The maximum penalty for driving whilst disqualified in its aggravated form is two years’ imprisonment.7  A starting point of 20 months indicates, as the Judge noted, offending at the highest end of culpability for the offence.

[15]     In my view, the circumstances giving rise to the 20 month starting point in this case are hardly distinguishable in seriousness from those in Keenan. There is nothing in the fact that this is Mr Affleck’s tenth, rather than eleventh, conviction. Arguing in such relatively numerical minutiae is unhelpful, but even if one were to do so, 10

convictions in four years is actually offending at a higher rate than 11 in four and a

7      Land Transport Act 1998, s 32(4).

half years. The important point is that Mr Affleck’s actions represent very serious and almost compulsive recidivist disqualified driving.  This is particularly apparent when consideration is given to Mr Affleck having been in and out of prison over those four years, and that his opportunities to reoffend have to some extent been more limited.

[16]     Nor is Mr Acland right to distinguish Keenan on the basis that six of the other previous driving convictions were while Mr Affleck was prohibited.   While Judge Couch decided not to apply a discrete uplift for Mr Affleck’s previous offending, he does have some relevant history. He has two convictions of contravening a protection order and one of failing to answer bail, which further demonstrates his disregard for Court-imposed restrictions.  He also has six dishonesty convictions involving motor vehicles, three drink-driving convictions, and one of careless driving, reinforcing his strong proclivity for driving-related offending. He was perhaps fortunate no uplift was imposed to mark this feature.

[17]     The 20 month starting point is also reinforced by other analogous cases, including those which Mr Acland himself referred to.  The 20 month starting point in Garlick v Police was for an eighteenth conviction for driving whilst disqualified.8

However, it had been eight years since Mr Garlick’s last offence of this kind, with only more minor driving convictions being entered in the intervening years.   In such circumstances, the culpability was comparable notwithstanding the greater number of convictions.

[18]     In Sykes v Police, I upheld a 21 month starting point in relation to a fourteenth conviction.9   However, there, the convictions had been amassed over 29 years.  The conclusion that Mr Sykes was a hopeless recidivist was tempered by the fact that his last conviction for driving whilst disqualified was over eight years before.   In the present case there are no grounds to conclude that Mr Affleck is other than a recidivist who chooses to drive whilst disqualified with alarming regularity notwithstanding his convictions.

[19]     In Whitley v Police an overall starting point of 30 months was adopted in relation to the offender’s ninth, tenth and eleventh convictions of driving whilst disqualified. On appeal this was reduced to 24 months.10  In Wilson v Police an overall starting point of 36 months was undisturbed on appeal in relation to an offender’s thirteenth to sixteenth convictions.11   These cases are, of course, less helpful as they involved multiple charges for which the offender was being sentenced at the one time, raising totality issues.   However, they reinforce the fact the Courts take a stern approach to sentencing recidivist offenders of this type.

[20]     As I have already commented, Mr Acland’s submissions as to mitigating features are also not persuasive.  There is no medical evidence before the Court as to Mr Affleck’s ADHD and how it might affect his proclivity to offend.   As to Mr Affleck’s explanation of his offending, I do not consider it mitigates his culpability in a way which would warrant any reduction in his sentence.  If it was a one-off offence it might have done so, but this is simply the latest in a pattern which irresistibly suggests a disregard for his disqualification.

[21]     Mr Affleck had options other than to drive.  He could have called a taxi, or counselled his associate against driving and contacted the kindergarten. This situation was entirely avoidable.  Mr Affleck’s affidavit reads as though he considers himself justified by the circumstances, and there is no indication he accepts responsibility for his continuing offending.

Second ground of appeal: leave to apply for home detention

[22]     Mr Acland in his written submissions originally submitted that Judge Couch erred in that he “found a presumption that the only option available to the Court was [a] sentence of imprisonment” because it was a tenth offence. Mr Acland has modified his submission in that regard because no suitable address is presently available to Mr Affleck.  He now identifies the error as being failure to grant leave to Mr Affleck to apply for home detention.

[23]     Mr Affleck submitted the Judge failed to consider principles and purposes of sentencing, other than denunciation and deterrence, and that as a result the Judge did not come to a principled decision on why imprisonment was the least restrictive sentence in the circumstances.  Mr Acland in his written submissions contended the reason Mr Affleck’s past offending had resulted in imprisonment was because he had not had a suitable home detention address available. That remains the current position.

Analysis

[24]     An appeal against the refusal to grant home detention represents a challenge to the exercise of judicial discretion.  As such, the question on appeal is whether the Judge “applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was ... plainly wrong”.12

[25]     In Fairbrother v R, the Court of Appeal observed that what is required is:13

... a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[26]     Judge Couch’s comments on home detention were brief but satisfactorily articulated his reason why he considered home detention inappropriate.   I do not consider his remarks evidenced reliance on any general “presumption” that imprisonment is the only option when dealing with a recidivist offender.  The Judge referred to the purposes of the Sentencing Act, and stressed that in these circumstances, given Mr Affleck’s relentless reoffending, that deterrence and denunciation were the predominant concerns.   That was not an unreasonable conclusion, based on circumstances specific to this case and an application of the statutory considerations to the facts.

[27]     It is notable that home detention was not granted, or even seriously argued in the analogous cases cited by counsel.   The way the Courts ordinarily respond to recidivist offending of this type is to escalate the penalty in order to provide further

deterrence and denunciation. Very often it also reflects the bleak prospects of rehabilitation in light of an offender’s wilful determination to simply ignore the Court- imposed prohibitions.  Mr Affleck has already served prison sentences in relation to this kind of offending. However, there is nothing to suggest home detention may have produced any change in his attitude.  To the contrary, Mr Affleck’s apparent response to his most recent offending is to deflect and offer excuses rather than accept responsibility.

[28]     Apart from the need to impose the least restrictive sentence, Mr Acland has not contended what other purposes of sentencing the Judge ought to have paid more attention to. There is no basis in Mr Affleck’s personal circumstances to suggest home detention would have likely had a rehabilitative effect on him.  In the circumstances, I am unable to conclude the Judge erred in the exercise of his discretion to refuse home detention.

Conclusion

[29]     Mr Affleck has failed to demonstrate any error in the sentence imposed, and that another sentence would have been more appropriate. The appeal is dismissed.

Solicitors:

Luke SB Acland Barrister, Nelson

Raymond Donnelly & Co, Christchurch

Solicitors: