Barton v Police HC WN CRI 2009-485-000108

[2010] NZHC 59

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI-2009-485-000108

BETWEEN  DAVID THOMAS GRANT BARTON

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 February 2010

Counsel:         D L Stevens QC for Appellant

K Grau for Respondent

Judgment:      9 February 2010

ORAL JUDGMENT OF GENDALL J

[1]      The appellant was convicted on 19  May  2008  after  a  defended  hearing  of

driving  in  a  manner  which  might  have  been  dangerous  to  the  public. He  was sentenced by Judge P D Mahoney in the District Court to six weeks’ imprisonment and disqualified from holding a driver’s licence for a period of 18 months.

[2]      Initially, he appealed against his conviction and sentence, but does not now pursue the conviction appeal.   That is sensible given the evidence against him was overwhelming.

[3]      In respect of the sentence appeal he contends that the term of imprisonment and the period of disqualification it was manifestly excessive and inappropriate and

that he should have been sentenced to a community-based sentence.

BARTON V NEW ZEALAND POLICE HC WN CRI-2009-485-000108  9 February 2010

Background facts

[4]      The  circumstances  of  the  offending are  contained  in  the  evidence  heard  by Judge  Mahoney,  which  I  have  read. It  is  quite  clear  that  on  a  moderately  busy State Highway 1, in the early morning, the appellant drove in an aggressive manner dangerously  so  as  to  alarm  a  number  of  motorists. It  may  be  that  the  appellant believed he was an experienced skilful driver, who had adopted motor vehicle racing as a hobby in the past, but he chose to drive in an aggressive, erratic and speeding manner on a public highway.   He tailgated vehicles, flashing headlights at them to move  aside,  changed  lanes  rapidly,  speeding  in  and  out  of  other  vehicles  over  an extended  period  on  the  busy  highway. One  witness  described  him  as  being  “a lunatic  on  the  road”  and  his  manner  of  driving  may  have  been  reminiscent  of speedway cars.  He was dangerous and aggressive and, it seems, an angry driver on the highway.  Judge Mahoney described the driving as being:

“...  consistent  with  the  demeanour  displayed  by  the  defendant  and  his dealings  with the  police [the  evidence  was  he  was  belligerent  and abusive when eventually stopped].”

[5]      Judge Mahoney went on to say:

“There  was  an  element  of  severe  or  extreme  recklessness  in  the  way  in which  he  was  accelerating,  braking,  flashing  his  lights  and  using  his  horn and changing from lane to lane in an endeavour to make his way through the traffic...”

[6]      Since  1980  the  appellant  has  amassed  over  30  convictions. Many  are historical   but   they   include   two   for   dangerous   driving,   two   for   careless   or inconsiderate  driving,  others  for  using  insulting,  alarming  or  offensive  words, assaulting a traffic officer as well as threatening behaviour.  It might be the appellant had an anger management problem.   This is a trait it seems was displayed after he was  stopped  by  the  police  and  the  evidence  was  that  he  was  then  belligerently arrogant. It  seems,  at  least  according  to  the  District  Court  transcript,  that  the appellant  may  have  responded  in  similar  fashion  to  the  prosecutor  after  being sentenced.   The  probation  officer  spoke  of  the  appellant’s  denial  of  any offending and his claim to be a skilled racing car driver for a number of years.

[7]      Given  the  appellant’s  previous  history  and  the  apparent  inability  of  other sentences to deter such dangerous driving, it was apparent to Judge Mahoney that a stern personal deterrent sentence was called for.  According to the probation officer, the appellant had said he refused to carry out a sentence of community work.  If that was   correctly   reported   then   obviously   the   only   apparent   other   option   was imprisonment, and  I can  sympathise with Judge Mahoney’s position given s 17 of the  Sentencing  Act  2002.   The  probation  officer  in  fact  recommended  a  fine  and community work.

[8]      In  a  written  communication  to  the  Court,  and  in  Mr  Stevens’  submissions (which  are  based  on  his  instructions),  the  appellant  now  says  that  what  he  meant when  he  told  the  probation  officer  that  he  would  not  carry  out  a  sentence  of community work was simply referring to the difficulty this would involve as he lived on a rural property at Paekakariki Hill Road, and transport to and from community work would have been difficult.  I entertained some doubt about that explanation and indeed, his stated remorse is now very mutedly expressed and arises it seems only because of the sentence that was imposed.

[9]      In  support  of  the  appeal  against  sentence  Mr  Stevens  said  that  he  was instructed the appellant’s wife had a terminal illness (although the Court would have been assisted by an independent report or assessment about that) and the day-to-day management of the household and the appellant’s 10-year old son it is said falls upon him.  Mr Stevens referred to the well known dicta of the Court of Appeal in R v Hill [2008]  NZCA  41  to  support  the  proposition  that  home  detention  or  a  community- based sentence as a stand alone sentence was available to the sentencing Judge and the imposition of the least restrictive sentence required a community-based sentence. Mr Stevens submitted that imprisonment was a last resort and the circumstances of the  offending  were  such  that  the  appellant  could  be  held  accountable  to  the community  through  making  compensation  in  the  form  of  community  work  or community detention.

[10]     Ms Grau, on behalf of the Crown contended that the appellant is a recidivist dangerous  driver  who  was  not prepared to accept responsibility and the offending warranted a stern deterrent approach. She submitted that given the lack of remorse

and  the  refusal  to  accept  responsibility  and  the  apparent  stated  refusal  to  perform community  work  there  was  no  realistic  prospect  of  motivation  to  change  and  the Judge was entitled to impose a sentence of imprisonment.

[11]     I  do  not  accept  the  submission  that  imprisonment  for  offences  such  as  this must be only imposed as a matter of “last resort”.   Two months’ imprisonment was imposed  on  appeal  in  the  decision  of  Foulds  v  Police  HC  Auckland  A32/99, 24 March 1999 Laurenson J and more recently in Wicks v New Zealand Police HC New Plymouth CRI-2008-443-12, 24 April 2008 Duffy J.   Her Honour emphasised that in a case where the offender’s driving was “appalling” emphasised in cases of bad dangerous driving where an appellant had previous convictions, sentences of two months’ imprisonment could result.   Likewise, in Rupapera v Police HC Auckland A80/01, 6 July 2001 Hugh Williams J allowed an appeal against a sentence of four months’  imprisonment  on  a  charge  of  reckless  driving,  but  because  of  previous driving-related  convictions  a  sentence  of  two months’  imprisonment  was  justified. That case, however, involved a charge of reckless driving but also the sentence had to reflect a guilty plea.

[12]     It is clear from the authorities that a charge of dangerous driving may lead to

a sentence of imprisonment if the Court considers it necessary.  Previous convictions

for similar offending are significant factors in determining whether imprisonment is necessary.    In  this  case  it  is  questionable  whether  a  sentence  of  home  detention would have had any rehabilitative effect on the appellant, and it is that feature which underpins some of the reasoning in R v Hill.  The probation officer had reported that the appellant did not appear to have motivation to change and lacked insight into the seriousness of his offending and the need for specific deterrence was high.

[13]     The appellant in his statement presented to the  Court says that although  he did not appreciate it at the time, he now accepts that “I have startled people with my driving”. As I have said this is a muted statement which indicates a lack of real insight or acceptance that his driving was dangerous to the public on a busy highway. It is rather less than a fulsome acknowledgement of serious offending. Given the appellant’s apparent attitude first, when  apprehended; secondly, to the probation  officer; and  thirdly,  in  response  to  the  Judge’s  sentencing  remarks  as

appeared in the transcript, it is difficult to give any credence to claims to remorse.  A

guilty plea would have been the best example of such remorse.

[14]     I note, as I have referred to counsel in the course of argument that on 3 June

2009 the appellant was ordered to pay a fine and costs of $330 for exceeding 100kph which  could  only  have  arisen  through  an  infringement  speeding  notice  where  the speed exceeded the limit by more than 30kph but not more than 35kph.  That is, after his offending in the present case.

[15]     This  is  a  case  where  no  discount  or  concession  could  be  afforded  to  the appellant  for  a  guilty  plea  and  required  a  stern  response. Other  penalties  or sentences   imposed   in   the   past   had   been   ineffective,   but   for   his   personal circumstances, past convictions and his behaviour and attitude towards a community based   sentence,   well   justified   Judge   Mahoney   imposing   a   short   period   of imprisonment.

[16]     I was minded to require the appellant to provide some independent support

for the matters he advanced (or his counsel advanced on his instructions) in relation

to  his  wife’s  health  because  at  this  stage  the  Court  does  not  have  sufficient  and independent material to make an informed judgment as to the degree of difficulty the appellant experiences at home and which requires his presence there.  I am certainly not impressed with any elaboration given by the appellant as to the location of his residence on Paekakariki Hill Road.  But in the end I have concluded that because of the family circumstances the appellant should avoid imprisonment, but only by the skin of his teeth.   He should clearly understand  that, and when he is able to drive again, if he continues in this fashion then imprisonment is inevitable.

[17]     As I said, I can well sympathise with Judge Mahoney given what the appellant had said to the probation officer that  he  would  not  perform  community work.  He now says he will do so. I propose to quash the sentence of imprisonment and impose a term of community work, which will be complied with or prison will follow. The element of personal deterrence necessary for the appellant can be met by the sentence of community work and the punitive aspect of a fine, which I intend

to impose.  The appellant it is said being well able to meet a significant fine and that

is what his counsel in the District Court had submitted.

[18]     The term of imprisonment is quashed.  In its place the appellant is sentenced

to community work for 150 hours.   In addition, he is fined $1,500.   I do not regard the 18 months’ period of disqualification given the history and belligerent attitude of the  appellant,  to  be  outside  the  discretion  of  the  sentencing  Judge  and  that  is confirmed.

J W Gendall J

Solicitors:

Brandons, Wellington for Appellant

(Counsel acting:  D L Stevens QC, Wellington) Crown Solicitor, Wellington for Respondent