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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Affleck v Police

Details

AGLC: Affleck v Police [2017] NZHC 3220
Case: [2017] NZHC 3220
Decision Date: 19 December 2017

CaseChat Overview and Summary

Dylan Affleck appeals against his sentence of 15 months’ imprisonment, imposed by Judge Couch, for driving whilst disqualified and breaching release conditions. The appeal is heard out of time as legal aid was not granted until after the appeal period lapsed. The Court grants leave to appeal out of time as the delay was unavoidable and there is no prejudice to the Crown. The appeal is dismissed because the sentence imposed is not manifestly excessive or inappropriate. The starting point of 20 months’ imprisonment was appropriate given Mr Affleck’s culpability in relation to his tenth conviction for driving whilst disqualified in the four years since his indefinite disqualification. The court found that the mitigating factors argued by Mr Affleck’s counsel did not warrant a reduction in sentence. The refusal to grant home detention was not an error in the exercise of judicial discretion as the purposes of denunciation and deterrence were appropriately considered by the sentencing Judge. The appeal is dismissed and the original sentence stands.

Orders