Bishop-Lister v Police

[2022] NZHC 216

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-1 CRI-2022-443-2

CRI-2022-443-3 [2022] NZHC 216

BETWEEN

BARRY JAMES BISHOP-LISTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (by VMR):	17 February 2022
Counsel:	J C Hannam for the Appellant J E Bourke for the Respondent
Judgment:	18 February 2022

JUDGMENT OF GWYN J

Summary

[1]        On 17 May 2021, the appellant was sentenced to community work and community detention on two charges of driving while disqualified and one of assault on a person in a family relationship.

[2]        On 15 November 2021, the appellant was sentenced for breaching the community work and community detention conditions, as well as for two further sets of offending relating to driving misconduct. The sentence at issue in this appeal relates to the following charges:

(a)breaching conditions of community detention (s 69G(a) of the Sentencing Act 2002);1

1      Maximum term of imprisonment of 6 months, or a fine of $1,500.

BISHOP-LISTER v NEW ZEALAND POLICE [2022] NZHC 216 [18 February 2022]

(b)breaching conditions of community work (s 71(1)(a) of the Sentencing Act);2

(c)two charges of driving while disqualified—third or subsequent offence r (s 32(1)(a) and 32(4) of the Land Transport Act 1998);3

(d)operating a vehicle carelessly (s 37 of the Land Transport Act);4 and

(e)failing    to    stop    when    followed    by    red/blue    flashing    lights (s 52A(1)(a)(ii)).5

[3]        The appellant was sentenced to 18 months’ imprisonment and a disqualification of two years and six months was imposed by Judge Greig in the Whanganui District Court.6

[4]On 11 January 2022, the appellant filed an appeal against sentence.

Background

[5]        The appellant was disqualified from driving in October 2020 with the disqualification period to begin on 15 March 2021.

[6]        On 25 June 2021, the appellant was found driving while trying to locate his son who was in some distress. Mr Bishop-Lister says this situation has caused him significant stress. As a result of what has happened to his son, the appellant has had to become involved in other court proceedings. He has experienced a breakdown of the previously co-operative parenting relationship with his son’s mother. The appellant’s background context also includes having to relocate out of his stepfather’s residence, who is a recovering alcoholic and is considered controlling and difficult by the appellant. Mr Bishop-Lister says he has felt overwhelmed by the consequences of dealing with simultaneous District Court and Family Court proceedings while also

2      Maximum term of imprisonment of 3 months, or a fine of $1,000.

3      Maximum penalty of two years, or a fine of $6,000; and, the Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.

4      Maximum penalty is a fine of $3,000.

5      Maximum penalty is a fine of $10,000.

6      Police v Barry James Bishop [2021] NZDC 22398.

contending with the consequences of his son’s situation, fractured family dynamics and Covid-19.

[7]        On 27 August 2021, the appellant drove again while disqualified. In this instance, the appellant said he was driving to procure a car part for a repair. After realising that he had come to the attention of the Police, the appellant drove carelessly, ignored the flashing lights of the Police and attempted to flee. He was located soon after. The appellant has expressed remorse for this offending and explained it as a lapse of judgement in a panicked moment.

[8]        The appellant’s failure to comply with community detention is, he says, also related to his actions surrounding his son’s situation. The appellant says he needed to protect his son and guard his wellbeing which resulted in him being absent from the prescribed residence between 13 August 2021 and 24 August 2021. The appellant says that personal issues with his stepfather also made it difficult for him to comply with community detention conditions.

[9]        The appellant’s failure to complete his community work obligations are also explained by him by reference to the difficult personal conditions he was experiencing.

District Court decision

[10]      The sentencing Judge started with nine months’ imprisonment for each of the two driving while disqualified charges, resulting in a total of 18 months’ imprisonment. The Judge then uplifted the sentence by six months to reflect the appellant’s manner of driving and for offending on bail, leading to a total of 24 months’ imprisonment. The Judge described this calculation as having been done on a totality basis.

[11]      The Judge added a further three months to the sentence for the breaches of community detention and community work orders. From the new total of 27 months, the Judge deducted nine months for the appellant’s guilty pleas and the “distressing situation” the appellant was in. The final sentence was, accordingly, 18 months’ imprisonment.

[12]      The Judge declined to give the appellant leave to apply for home detention because of the appellant’s repeated failures to comply with previous sentences. Additionally, the appellant had not co-operated with the Probation Officer with the result that a recommendation of home detention could not be given.

[13]      Finally, the Judge disqualified the appellant from driving for a period  of   two years and six months.

Grounds of appeal

[14]The grounds of appeal are:

(a)the sentence of 18 months’ imprisonment is manifestly excessive;

(b)the driving disqualification for two years and six months is manifestly excessive; and

(c)leave to apply for home detention should have been granted.

Submissions

For the appellant

[15]      The appellant submits that the sentence did not correctly reflect the totality principle: there was no reduction for totality nor was the original starting point prior to totality articulated. Additionally, the uplift of six months to reflect the manner of driving and offending on bail was incorrect as the manner of the appellant’s driving was already reflected in the careless driving and failing to stop at the blue/red flashing lights charges. Further, the uplift for offending on bail neutralises the totality principle.

[16]      The appellant also submits that sufficient discounts were not given for his remorse, early guilty pleas and the difficult circumstances the appellant was experiencing. The appellant submits that a final sentence of 12 months’ imprisonment should be substituted.

[17]      On the issue of driving disqualification, the appellant submits that the special circumstances of this case, arising from the appellant’s concern for the safety of his son, warrant the application of s 81 of the Land Transport Act so that only a reduced disqualification should be imposed. Mr Hannam acknowledged that s 81 would not assist in respect of the second driving while disqualified charge.

[18]      Finally, the appellant submits that leave to apply for home detention should have been granted despite his past compliance breaches because by declining leave, the appellant has gone from community-based sentences straight to imprisonment; home detention as a sentence should not be bypassed in this way.

For the respondent

[19]      The respondent has submitted that a global starting point of 18 months’ imprisonment is consistent with the authorities and appropriate for the present case. Mr Bourke responsibly conceded that the 18 months starting point sufficiently takes into account previous offending, and therefore, no uplift for that is necessary.

[20]      The respondent submits that a three-month uplift for breaches of community detention, while stern, is appropriate. Additionally, the respondent submits that a further two-month uplift for failing to comply with community work conditions is also warranted.

[21]      On the issue of the driving disqualification, the respondent submits that the sentencing Judge was best placed to consider the period of disqualification. The respondent notes the repeated instances of the appellant driving while disqualified and submits that the period imposed, of two years and six months, is appropriate.

[22]      Finally, the respondent cites the appellant’s non-compliance with community- based sentences and refusal to engage with the Probation Officer as support for imprisonment being the only available sentence in this case.

Relevant law

Sentence

[23]      Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.7 Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to sentence appeals.8

[24]      It is not for the appeal court to “tinker” with an end sentence if it is within range.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10 The Court of Appeal has accepted, however, that there may be cases where “what has gone wrong was such as to require correction albeit the sentence imposed is within range”.11

Period of driving disqualification

[25]      On appeal, counsel for the appellant has raised for consideration the application of s 81 to reduce the period of the appellant’s driving disqualification.

[26]Section 81(1) of the Land Transport Act 1998 provides:

81Mandatory disqualification: court’s discretion if special reasons relating to offence

If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

[27]      In Drummond v Police, the Court noted that a special reason for the purposes of s 81 is “not simply a reason, or even a good reason”. Instead, it “must be of a sufficiently compelling nature to justify departing from the usual consequence for

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

8 At [35].

9      Ripia v R [2011] NZCA 101, at [15].

10 At [15].

11     Tutakangahau v R, above n 7, at [36].

disobeying a legal prohibition on driving”.12 A matter of urgency or importance is required before an appellant can benefit from s 81.

Leave to apply for home detention

[28]      In R v Morgan, a substituted sentence of two months’ imprisonment was imposed for an original sentence of 150 hours community work that had not been completed. The Court of Appeal noted that:13

[W]hile we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate.

The Court emphasised that a re-sentence was not an opportunity to punish the offender for the failure to comply with the community work sentence. In that case, the Court held that a substituted sentence of eight months’ imprisonment bore no relationship to the original sentence of 150 hours of community work, and therefore, appeal against it was allowed with a substituted sentence of two months’ imprisonment imposed instead.14

Analysis

Sentencing

[29]      In Whitely v Police, the appellant’s explanation for driving while disqualified suggested he  was  “simply  flouting  his  disqualification”.15  A  starting  point  of  10 months was adopted for the eighth conviction and four months each for the sixth and seventh convictions, for a total starting point of 18 months’ imprisonment.

[30]      In Jenkins v Police, a starting point of nine months was considered appropriate for the appellant’s seventh conviction and three months for his sixth conviction, for a

12     Drummond v Police [2014] NZHC 1851 at [14].

13     R v Morgan [2008] NZCA 232 at [15].

14 At [16].

15     Whitley v Police [2016] NZHC 1025 at [31].

total starting point of 12 months’ imprisonment.16 The explanations provided by the appellant in that case were considered to be genuine, but they did not excuse the offending.17

[31]      In Jonathan v Police, a starting point of 12 months for the sixth conviction and four months for the seventh conviction was adopted, resulting in a total starting point of 16 months.18 The Judge was prepared to find that special reasons existed to not disqualify the appellant for the seventh conviction, but that the conduct reflected poor judgement nonetheless.19

[32]      In light of these authorities, I consider that the starting point of nine months for each of the appellant’s fifth and sixth driving while disqualified convictions, totalling 18 months (the same starting point adopted in Whitely v Police) was excessive. In the present case, I accept that the appellant has offered a reasonable explanation for his fifth conviction—relating to a concern for his son’s wellbeing. Instead, I adopt an eight month starting point for the appellant’s sixth conviction and four months for the fifth conviction, a total starting point of 12 months.

[33]      The appellant and respondent are in agreement that no uplift is necessary from the starting point to reflect the manner of driving and previous offending by the appellant. I, too, am satisfied that the charges appropriately take into account the manner of the appellant’s driving and his previous offending. Therefore, a starting point of 12 months is appropriate without the six-month uplift imposed by the sentencing Judge and is consistent with the helpful review of authorities found in Jonathan v Police.20

[34]      The three month uplift for breaches  of  community  work  (approximately 145 hours left uncompleted) and community detention conditions is similar to the two month sentence substituted for 150 hours of  uncompleted community work in  R v Morgan.21 The additional month, in comparison with Morgan, reflects the

16     Jenkins v Police [2018] NZHC 2055.

17 At [20].

18     Jonathan v Police [2019] NZHC 1115.

19 At [16].

20     Jonathan v Police, above n 18, at [14].

21     R v Morgan, above n 13.

appellant’s non-compliance with community detention (failing to return to prescribed address on 18 occasions). I do not agree with the respondent’s submission that breaches of community detention and community work should result in two separate uplifts, of three and two months respectively. A three month total uplift for breaches of both parts of one sentence is appropriate.

[35]      Finally, I consider the discounts available to the appellant for his guilty pleas, remorse and difficult circumstances surrounding  the  offending.  A  discount  of  nine months was given by the sentencing Judge. There is no error in the sentencing Judge’s determination of a discount. Accordingly, I adopt it in relation the new starting point I have determined.

[36]      The resulting calculation is as follows: 12 months starting point, uplifted by three months for breaches  of  community-based  sentences,  and  discounted  by  five months (the same proportion as in the District Court). The end result is a sentence of 10 months’ imprisonment. I note that the appellant has served five months of this sentence at the date of hearing.

[37]      Now that the final term of imprisonment is less than 12 months, the imposition of release conditions becomes discretionary.22 Standard conditions must be directed to, and be no more than is required to protect, the safety of the community.23 I am satisfied that no release conditions need to be imposed in this case. Mr Bishop-Lister is already subject to a driving disqualification for 18 months. Since his offending was driving-related, the disqualification will adequately manage the risk of re-offending and facilitate rehabilitation.

Period of driving disqualification

[38]      The minimum period of disqualification  to  be  imposed  was  18  months. Mr Hannam submits that I can approach this either on the basis that the sentence was manifestly excessive or by applying s 81 of the Land Transport Act. Section 81 might potentially have some application to the first charge of driving while disqualified

22     Sentencing Act 2002, s 93.

23     Latham-Johnstone v Department of Corrections [2014] NZHC 2451 at [17].

(given the family circumstances that the appellant says – and the Judge accepted – precipitated that occasion). However, the second incident plainly does not come within s 81.

[39]      I prefer to approach it on the basis that the total period of disqualification is excessive in the particular circumstances. As Mr Bourke helpfully clarified, the disqualifications for the driving while disqualified offences on 25 June 2021 and    27 August 2021 could be imposed concurrently, rather than cumulatively, as it appears the  Judge  did.  The  disqualification  for  failure  to  stop  for  red/blue  lights  on  27 August 2021 must, however, be cumulative. I am satisfied that disqualification from driving for a total of eighteen months is appropriate.

Leave to apply for home detention

[40]      I would have granted leave to apply for home detention. Refusal to grant leave is akin to a further penalty imposed on the appellant for failure to comply with the original community-based sentence, contrary to the Court’s role when re-sentencing, as emphasised by the Court of Appeal in Morgan v R.24 A sentence of imprisonment for a not insignificant term without leave to apply for home detention would only have been imposed for driving offences and a charge of assault in rare circumstances. The appellant’s initial offending warranted a sentence of community work and community detention. In my view, to substitute a sentence of imprisonment without leave to apply for home detention is disproportionate. As Mr Hannam emphasised, all that is sought is leave to apply. If he chooses to do so, Mr Bishop-Lester will need to persuade the Court that the address and occupants proffered are suitable and that he will comply with the conditions of home detention. Accordingly, I uphold this aspect of the appeal and Mr Bishop-Lister has leave to apply for home detention.

Conclusion

[41]      The appeal against sentence is allowed. A sentence of 10 months’ imprisonment with no release conditions is substituted.

24     Morgan v R, above n 13.

[42]      The appeal against the period of driving disqualification is allowed and a period of eighteen months’ disqualification is substituted.

[43]      The appeal against refusal to grant leave to apply for home detention is allowed.

Gwyn J

Solicitors:

Hannam & Co. Lawyers Ltd, New Plymouth C & M Legal, New Plymouth