Barwell v Police

[2019] NZHC 2071

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI 2019-409-0086

[2019] NZHC 2071

BETWEEN

KANE JAMES BARWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 August 2019

Appearances:

C Eason for the Appellant

J Whitcombe for the Respondent

Judgment:

22 August 2019

ORAL JUDGMENT OF JAGOSE J

The judgment was delivered by me on 22 August 2019.

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

Counsel/Solicitors:

C Eason, Barrister, Christchurch Raymond Donnelly & Co

BARWELL v NEW ZEALAND POLICE [2019] NZHC 2071 [22 August 2019]

[1]    Kane Barwell appeals his sentence of two years and nine months’ imprisonment, imposed by Judge A D Garland in the District Court at Christchurch on 4 June 2019.1 The sentence related to four discrete driving offences in January and February 2019, all for recidivist driving while disqualified,2 and associated offending.3 He appeals the sentence as in arithmetical error, manifestly excessive, and inappropriately custodial.

Background

[2]    Mr Barwell was disqualified from driving for twelve months from 16 April 2018. He was stopped by police while driving early in the morning of 20 January 2019. Two days later – early in the morning of 22 January 2019, driving a car nearly a year out of warrant – he drove away from police signalling him to stop. He drove through a red light, at speeds seriously exceeding the 50 km/h limit, on the wrong side of the road towards oncoming traffic, and with the car’s lights off. The police abandoned pursuit, later stopping his car by laying spikes in his path. A week later, late morning on 29 January 2019, Mr Barwell was again stopped by police. After appearing in Court on 21 February 2019, and being granted bail with a condition not to drive, he was yet again stopped in the late afternoon.

[3]    Judge Garland identified Mr Barwell’s extreme and escalating recidivism, presenting serious risk of harm to the public, in what would be his fourteenth conviction for driving while disqualified, among nearly 60 convictions since 2011. The Judge took the 22 January 2019 offending as the lead charge, imposing the maximum two-year term of imprisonment. He uplifted that by six months, to reflect the totality of the driving while disqualified charges. He applied a further twelve months to reflect Mr Barwell’s aggravating history, his thirteen prior driving while disqualified convictions including 18 months’ imprisonment on 23 August 2017. He applied a ten-month discount for Mr Barwell’s guilty pleas, and sentenced Mr Barwell to two years and nine months’ imprisonment.

1      Police v Barwell [2019] NZDC 10732.

2      Land Transport Act 1998, s 32(1)(a) and (4): maximum two years’ imprisonment.

3      Operation of vehicle on a road without displaying current evidence of vehicle inspection (Land Transport Act 1998, s 34(1)(b): maximum $2,000 fine); dangerous driving (Land Transport Act 1998, s 35(1)(b): maximum three months’ imprisonment); failure to stop when required by enforcement officer (Land Transport Act 1998, s 52A(1)(a)(ii): maximum $10,000 fine).

Issues on appeal

[4]    Mr Barwell’s counsel, Colin Eason, says the Judge’s calculations should have arrived at two years and eight months’ imprisonment. He says the Judge did not give due consideration to a non-custodial sentence, and disputes the Judge’s twelve-month uplift was permissible.

Approach to appeals against sentence

[5]    I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.4 In any other case, I must dismiss the appeal.5 The approach previously taken by courts on sentencing appeals continues to apply;6 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.7 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.8

Discussion

[6]There is no dispute the Judge’s mathematical error should be corrected: 24 + 6

+ 12 – 10 = 32, or two years and eight months’ imprisonment, not two years and nine months.9 I will make that correction accordingly.

[7]    I disagree the Judge disregarded the prospect of a non-custodial sentence. He identified the PAC recommendation for a supervisory and community sentence, but also observed Mr Barwell’s non-compliance with conditions, inherent in the driving while disqualified charges. Mr Barwell’s counsel sought home detention – that is, the same as Ms Penman before Judge Garland sought home detention – “again”. It is not without note Mr Barwell’s compliance with conditions ceased after that sentence. And the file also includes a charge of breach of a 200-hours’ community work sentence

4      Criminal Procedure Act 2011, s 250(2).

5      Section 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

7      At [33] and [35].

8      Ripia v R [2011] NZCA 101 at [15].

9      Ferris-Bromley v R [2017] NZCA 115 at [15(a)].

imposed on 10 July 2018 for earlier driving while disqualified charges. As I will discuss in a moment, escalating sentencing for recidivist driving while disqualified “is essential to the maintenance of the integrity of the system”.10

[8]    Whether the Judge’s twelve-month uplift is impermissibly “disproportionate” in the sense referred to in Tamihana v R is to be assessed not in isolation, but from the perspective of any ‘manifest excess’ in the end-sentence.11 The Judge took the orthodox approach in sentencing Mr Barwell: an offence-specific starting point, uplifted for personal aggravating factors, including previous offending. But the preferred approach is to set a starting point with reference to escalating driving while disqualified offending, and uplifting for additional charges (not as personal aggravating factors): “the need to set a higher starting point derives from the repetition of the prohibited driving”.12

[9]    In Morell v Police, the appellant’s eleventh driving while disqualified conviction attracted an eighteen-month starting point (uplifted by three months for dangerous driving).13 In Whitely v Police, uplifts of four months for each sixth and seventh convictions were applied in sentencing on the eighth.14 In Apiata v Police, uplifts of six months for each eighteenth to twenty-first convictions were applied in sentencing on the twenty-second.15

[10]   Thus Mr Barwell’s 22 January 2019 fifteenth driving while disqualified offending comparatively might attract, say, a 21-month starting point, uplifted by three months for the dangerous driving charge. His fourteenth, sixteenth, and seventeenth driving while disqualified offending each might attract four to six-month uplifts. That results in a final sentence of 36 to 42 months, discounted to 27 to 32 months for early guilty pleas. While Judge Garland’s sentence exactly is at the top of that range, it cannot be said manifestly excessive.

10     R v Butterfield CA100/97, 23 July 1997 at 5.

11     Tamihana v R [2015] NZCA 169 at [28].

12     Jenkins v Police [2018] NZHC 2055 at [15]–[16], citing Sykes v Police [2014] NZHC 2642 at [10].

13     Morrell v Police [2014] NZHC 856.

14     Whitley v Police [2016] NZHC 1025.

15     Apiata v Police [2016] NZHC 3119.

Result

[11]   I correct Mr Barwell’s sentence from two years and nine months’ imprisonment to two years and eight months. The appeal otherwise is dismissed.

—Jagose J