Blair v The Queen
[2020] NZHC 2801
•23 October 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-101
CRI-2020-463-102 [2020] NZHC 2801
BETWEEN DANIEL BLAIR
Appellant
AND
THE QUEEN
Respondent
Hearing: 9 October 2020 (via AVL/VMR) Counsel:
S R Lack for Appellant
S J Revell for Respondent
Judgment:
23 October 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 23 October 2020 at 4:30 pm
Registrar/Deputy Registrar
Solicitors:
Pollett Legal Ltd (Tauranga) for Respondent
BLAIR v R [2020] NZHC 2801 [23 October 2020]
Introduction
[1] On 31 August 2020, Judge TR Ingram sentenced Mr Blair to three years and four months’ imprisonment on 16 charges to which he had pleaded guilty.1 Mr Blair now appeals the sentence on the ground that it is manifestly excessive.
[2] Judge Ingram also disqualified Mr Blair from driving for a period of two years and six months. Mr Blair appeals the disqualification period as being manifestly excessive.
[3] I must allow the appeal if I identify an error in the sentence such that a different sentence should be imposed. If I find that Mr Blair’s sentence is manifestly excessive then I will reduce it appropriately.
Background
The charges
[4]The charges on which Mr Blair was sentenced are:
No. Offence date Charge Maximum penalty 1 10 June 2019 Burglary 10 years’ imprisonment 2 14 June 2019 Presented a pistol 3 months’ imprisonment;
$1,000 fine
3 14 June 2019 Found in an enclosed yard 3 months’ imprisonment;
$2,000 fine
4 17 June 2019 Unlawful possession of a firearm 3 years imprisonment; $4,000 fine 5 17 June 2019 Unlawful possession of
ammunition
3 years’ imprisonment, $4,000
fine
6 17 June 2019 Possession of Class B controlled drug 3 months’ imprisonment; $500
fine
7 17 June 2019 Possession of Class C
controlled drug
3 months’ imprisonment; $500
fine
8 17 June 2019 Possession of a methamphetamine pipe 1 year’s imprisonment; $500
fine
9 17 June 2019 Possession of a
methamphetamine pipe
1 year’s imprisonment; $500
fine
10 17 June 2019 Unlawful possession of explosive 4 years’ imprisonment; $5,000
fine
1 R v Blair [2020] NZDC 17705.
11 8 October
2019
Dangerous driving 3 months’ imprisonment;
6 months’ disqualification;
$4,500 fine
12 21 October
2019
Dangerous driving 3 months’ imprisonment;
6 months’ disqualification;
$4,500 fine
13 21 October
2019
Failed to stop for red and blue flashing lights 1 year’s disqualification;
$10,000 fine
15 22 October
2019
Dangerous driving 3 months’ imprisonment;
6 months’ disqualification;
$4,500 fine
16 22 October
2019
Failed to stop for red and blue flashing lights 1 year’s disqualification;
$10,000 fine
17 22 October
2019
Unlawful possession of
firearm2
4 years’ imprisonment; $5,000
fine
[5]The summary of facts gives details of the offending:
Charge 1 – Burglary
[6] At about 10 am on 10 June 2019, Mr Blair and a male friend entered a house in Te Puke while an occupant was taking a shower. Mr Blair told the occupant to get out of the shower and get dressed before telling him they were looking for “guns and money”. Mr Blair searched the house while his friend stayed with the occupant on an outside deck.
[7] After searching the house, Mr Blair told the occupant to come inside and sit at the dining room table. Mr Blair told the occupant, “We’re just showing you we are not fucking around”. Mr Blair asked his friend to keep an eye on the occupant and then resumed searching through every room in the house. Mr Blair stole the occupant’s cellphone, about $50 in cash from the occupant’s wallet, a blue backpack and two sets of house keys.
[8]Mr Blair and his friend then left.
2 There is an overlap between s 45 and s 51 of the Arms Act 1983. Both address unlawful possession of a firearm. The former has a maximum term of imprisonment of four years and the latter three years. For some reason charge 4 was laid under s 51 and charge 17 under s 45.
Charges 2 and 3 – Present a pistol; Found in an enclosed yard
[9] At about 4.30 pm on 14 June 2019, Mr Blair returned to the same address. On this occasion he was with a female friend.
[10] When Mr Blair arrived, the occupant, the occupant’s father, and a neighbour were in the lounge of the house. They saw Mr Blair’s vehicle come down the driveway.
[11] The occupant’s father had a shotgun close by. He picked up the shotgun and waited in the lounge by the rear door.
[12] Mr Blair got out of his vehicle and walked onto the deck at the rear of the house. Mr Blair called out for the occupant. Mr Blair had a pistol with him which he pulled out of a pocket. The occupant’s father told Mr Blair to put the pistol away and he would put his shotgun down.
[13] Mr Blair then pointed his pistol at the occupant’s father’s head. The occupant’s father then raised his shotgun and aimed it at Mr Blair. Mr Blair turned and ran from the deck back to his vehicle.
[14] The occupant’s father followed Mr Blair around the side of the house and fired five shots at the rear of the vehicle as it drove off, hitting and smashing the rear windscreen.
Charge 4 – Unlawful possession of a firearm
[15] At about 2.15 pm on 17 June 2019, the police saw Mr Blair driving a silver Mercedes saloon in Mt Maunganui. Mr Blair was the only occupant.
[16] The police stopped Mr Blair and searched his vehicle. In the boot of the vehicle was a pump action 12 gauge shotgun with the magazine loaded with three rounds of ammunition.
Charge 5 – Unlawful possession of ammunition
[17] A further 10 live 12 gauge shotgun shells were located in a camouflage bag in the back seat of the vehicle.
Charge 6 – Possession of Class B controlled drug
[18] Mr Blair had approximately one gram of crystal MDMA (Ecstasy) in his wallet.
Charges 7 and 8 – Possession of Class C controlled drug; Possession of a methamphetamine pipe
[19] There were 33 grams of dry cannabis plant and a used glass methamphetamine pipe in the camouflage bag in the back seat of the vehicle.
Charges 9 and 10 – Possession of a methamphetamine pipe; Unlawful possession of explosive
[20] On 17 June 2019, the police searched Mr Blair’s address. They found 23 live 12 gauge shotgun shells in Mr Blair’s room scattered over his bed.
[21] The police found another used glass methamphetamine pipe on a set of drawers in Mr Blair’s room.
Charge 11 – Dangerous driving
[22] On Tuesday, 1 October 2019, Mr Blair was at home. He had been granted electronically monitored bail on the previous charges. At approximately 6.30 pm he breached his bail by leaving the address.
[23] The EM bail tracker attached to Mr Blair’s ankle showed that Mr Blair travelled to an address in Hamilton. At that point the tracker stopped transmitting and it has not been recovered,
[24] On 8 October 2019, the police saw Mr Blair driving a silver Mazda car in Tauranga.
[25] Before the police patrol could do anything further, Mr Blair drove off at speed. He drove at excess speed through Tauranga City and through Te Puke, at times on the wrong side of the road.
[26] The police did not pursue Mr Blair and neither he nor his car were located on this occasion.
Charges 12 and 13 – Dangerous driving; Failed to stop for red and blue flashing lights
[27] On 21 October 2019 at approximately 2.50 am, a police patrol saw Mr Blair in a Toyota motor vehicle in Te Puke. The police signalled to Mr Blair to stop.
[28] Instead of stopping, Mr Blair drove away at speed and travelled on the wrong side of the road to avoid spikes laid by police in Te Puke township. Mr Blair then drove towards Papamoa on the Eastern Link toll road.
[29] Mr Blair left the toll road and travelled at excessive speed through road works with a speed restriction on Domain Road and then into Papamoa Beach Road.
[30] As Mr Blair drove on Papamoa Beach Road, an occupant in his vehicle reached out the passenger’s window and fired a shot from a rifle. The bullet did not hit anything and the pursuit continued.
[31] As Mr Blair crossed the Maungatapu Bridge he veered across the lanes and accelerated the wrong way up the Maungatapu onramp against the flow of the traffic.
[32]Police lost sight of Mr Blair’s vehicle and it was not located.
Charges 15, 16 and 17 – Dangerous driving; Failed to stop for red and blue flashing lights; Unlawful possession of firearm
[33] On 22 October 2019, several police patrols saw that Mr Blair was parked at the Tauriko Service Station and was putting petrol into a Nissan Primera vehicle he was driving.
[34] As the marked police patrols pulled into the service station, Mr Blair drove the Nissan Primera into the side of one of the patrol vehicles before speeding off.
[35] The police pursued Mr Blair and at one point Mr Blair pulled his vehicle to the side of the road. A marked police patrol vehicle pulled in behind Mr Blair who then drove the Nissan Primera backwards into the patrol vehicle before driving off.
[36] As the pursuit continued, Mr Blair’s partner, who was a passenger in the vehicle, threw a shotgun from the vehicle. Immediately afterwards, police patrols were able to force Mr Blair to stop and he was taken into custody.
Mr Blair’s history
[37] Mr Blair was 23 years old at the time of the offending. He was born in Russia and was brought to New Zealand by his mother when he was four years old. As is only too common with young male offenders, his early life was spent in abusive circumstances and as a teen he was attracted to a criminal peer group and illegal drugs.
[38] Judge Ingram learned about Mr Blair’s earlier life through the pre-sentence report and through a cultural report presented pursuant to s 27 of the Sentencing Act 2002.
[39] The s 27 report says that Mr Blair’s father was an alcoholic who abused both Mr Blair’s mother and Mr Blair. This led to the mother coming to New Zealand with Mr Blair.
[40] Mr Blair’s mother took up with another partner in Taranaki who also became abusive. Mr Blair’s mother and Mr Blair then moved to New Plymouth where he lived until he was about 14. There was no positive male role model in his life. He began to accumulate a criminal record.
[41] Later, in Palmerston North, while still a teenager, Mr Blair mixed with a criminal peer group and experimented with drugs. He continued to accumulate a criminal record.
[42] The pre-sentence report is consistent with the s 27 report and succinctly summarises Mr Blair’s life history. The report goes on to say:
Mr Blair is assessed as at a high risk of re-offending and his assessed needs are defined as anti-social associates, drug dependency, poor decision making, use of weapons and the misuse of cars. The writer is aware that these are also relative (to a degree) of his age, maturity and bullet proof mentality. However the use of weapons intensifies his risk to others and is an aggravating factor in the potential for harm.
Mr Blair is adamant that a life of sobriety is his pathway forward and is aware that he will need to support to do this. He is interested in further alcohol and drug counselling. However by returning to Tauranga this places him back into a well connected network and one where he is easily recognised. Mr Blair was open to the idea of a residential facility and has been screened for the Tai Aroha Residential Facility in Hamilton. Acceptance onto this programme is partially dependent on Mr Blair being sentenced to a sentence of home detention or intensive supervision and given the tariffs for each charge this might be well outside of the Courts reach. Should the Court wish to pursue this a further adjournment would be required to await the placement assessment from the programme psychologist.
[43] Mr Blair told the report writer that he had relapsed into methamphetamine use in the period leading up to his offending and said his use of methamphetamine was controlling his life. He said he began to seek out goods to swap when he was short of funds to purchase the drug.
[44] Judge Ingram also had before him Mr Blair’s criminal record. This shows that Mr Blair first came to the attention of the Youth Court for offending beginning in April 2010 when he was 14 years old. His offending when he was subject to the Youth Court jurisdiction included multiple offences against which the case was proved and he was sentenced, such as for burglary, one for aggravated robbery and one for assaulting police.
[45] In 2014, when Mr Blair was 18 years old, he was sentenced to his first period of imprisonment. The offences included burglary and failure to answer bail.
[46] Later in 2014, Mr Blair was sentenced to his second term of imprisonment on charges of breaching community detention (representative) and breaching conditions of supervision.
[47] In 2015, Mr Blair was sentenced to intensive supervision on six charges, three of which were for common assault.
[48] In 2016, Mr Blair was sentenced to his third term of imprisonment on charges of assault with intent to injure and breaching conditions of intensive supervision (representative).
[49] Mr Blair continued to offend in the first half of 2016 but was sentenced to periods of community work. One of the convictions was for dangerous driving.
[50] In November 2016, Mr Blair received his fourth sentence of imprisonment. Again, the convictions included breaching conditions of intensive supervision and breaching community work. The convictions also included dangerous driving, burglary, theft and assaulting the police. The most serious offence was aggravated robbery for which he was sentenced to two years and eight months’ imprisonment. He was 20 years old at the time of that offending.
The Judge’s sentence
[51] Judge Ingram summarised the background which I have set out and commented:
[24] Not to put too fine a point on it, Mr Blair, the picture painted is of a young man who certainly at this time is well and truly out of control, not taking appropriate medication and in respect of whom nobody seems to have been able to exercise a calming influence to stop you carrying on in the way that you have carried on, as I have sought to explain in terms of the events of the day and your response to those things.
[52] Judge Ingram considered the repeated instances of dangerous driving to be of real significance, having already noted that Mr Blair had two convictions (in 2016) for dangerous driving. The Judge said:
[37] … Here, we have repeated instances of dangerous driving on the wrong side of the road, driving so bad that police are forced to pull out of appropriate pursuits, driving on the wrong side of the road up towards the roundabout is an extremely dangerous thing to do. Driving your car into police cars, likewise, is an extremely dangerous thing to do. In my view, the penalties available for that offending are simply not adequate to deal with the extent of dangerousness that such behaviour represents.
[53] The Judge was “firmly of the view that a substantial deterrent sentence is required for people who will repeatedly drive in those circumstances”.3
[54] The Judge turned to consider the offences involving the possession of firearms. He was particularly concerned that firearms offences are becoming prevalent in the Bay of Plenty. The Judge said:
[42] The position here is that you have had more than one firearm with you at various times when committing offences of various types. In my view, a stern response is required. It certainly would not be sufficient for me to take an approach of 12 months on all the firearms as an adequate response.
[55] Judge Ingram went through the sentencing factors he found relevant to Mr Blair’s offending including the need for Mr Blair to be rehabilitated and reintegrated into society. Mr Blair’s youth was a major factor. However:
[52] The reality however is you have continued despite the best efforts of all those who have dealt with you, to address the underlying causes by way of appropriate sentences, your sentences of supervision, community work and the like. Despite the best efforts of everyone concerned, you have simply carried on with your antisocial ways over a long period of time now.
[56] Judge Ingram assessed his starting point by assigning starting points to related charges as follows:
·Charges 1, 2 and 3 – Burglary; Presented a pistol; Found in an enclosed yard
Two years’ imprisonment
·Charges 4, 5, 6, 7, 8, 9 and 10 – Unlawful possession of a firearm; Unlawful possession of ammunition; Possession of Class B controlled drug; Possession of Class C controlled drug; Possession of a methamphetamine pipe (x2); Unlawful possession of explosive
Two years’ imprisonment
·Charges 11, 12 and 13 – Dangerous driving (x2); Failed to stop for red and blue flashing lights
Three months’ imprisonment
3 At [38].
·Charges 15 and 16 – Dangerous driving; Failed to stop for red and blue flashing lights
Three months’ imprisonment
·Charge 17 – Unlawful possession of firearm
18 months’ imprisonment
[57]The total was six years’ imprisonment.
[58] Judge Ingram increased the starting point by three months to take account of Mr Blair absconding from his electronically monitored bail and committing the subsequent offences while subject to that bail. An increase of six months was then imposed to take account of Mr Blair’s criminal record. The final starting point was, therefore, six years and nine months’ imprisonment.
[59]The Judge made it clear that he considered totality as he went along:4
The figure reached already involves a very substantial discount in what were long and significant sprees of offending.
[60] The Judge then considered discounts on the starting point. The Judge accepted Mr Blair was addicted to methamphetamine and that the addiction had a role in his offending. However, he did not accept it was directly causative and allowed a discount of 10 percent.
[61] The Judge accepted that the social, cultural and economic factors covered by the s 27 cultural report allowed him to determine there is a nexus between Mr Blair’s offending and those factors. The Judge allowed a discount of 10 percent.
[62] The Judge then considered whether there should be a discount for remorse. Of significance was that subsequent to his arrest Mr Blair co-operated with police and arranged for the surrender to police of two firearms. The Judge allowed a further discount of 10 percent for that.
4 At [61].
[63] Finally, Judge Ingram allowed a discount of 20 percent for the entry of pleas of guilty, noting that although there had been extensive negotiations resulting in a significantly different set of charges there was simply no realistic prospect that Mr Blair would avoid conviction for the matters which attracted the major sentences of imprisonment.
[64] Overall, the discounts identified by the Judge amounted to 50 percent of the starting point. The Judge rounded that up (50.6 percent) to a discount of 41 months. The final sentence imposed was three years and four months’ imprisonment.
[65] Judge Ingram recognised that at the age of 24 years Mr Blair has rehabilitation prospects. His view was that this is an issue that would best be handled by the Parole Board. Accordingly, the Judge declined to impose a minimum period of imprisonment.
The appeal
The defence position
[66] The gravamen of the appeal is that the Judge constructed the sentence in a way which led to a starting point which did not appropriately take into account the totality of the offending. This, coupled with discounts which were too small, resulted in an end sentence that is manifestly excessive.
[67] In addition, Judge Ingram disqualified Mr Blair from driving for a period of two years and six months. Mr Lack on behalf of Mr Blair submits this period is also manifestly excessive.
[68] Mr Lack submits that an end sentence in the range of two years four months’ imprisonment – two years six months’ imprisonment is appropriate. The period of disqualification should be no more than one year six months in duration.
[69] Mr Lack accepts there is no guideline judgment for sentencing involving the unlawful possession of firearms. He turned for guidance to sentencing involving drug-
dealing where the ancillary possession of firearms featured. His submission is that uplifts of between 12–18 months’ imprisonment can be appropriate.5
[70] I do not accept that uplifts for the unlawful possession of firearms where the charges are ancillary to drug-dealing charges are particularly relevant to this case. I will assess the firearms offending in this case on first principles having regard to the particular facts and the maximum sentence mandated by Parliament.
[71] Nevertheless, I will take into account Mr Lack’s underlying submission that the combined uplift of three years six months’ imprisonment for the firearms and drug possession offending is manifestly excessive.
[72]Mr Lack challenges the Judge’s finding:6
The figure reached already involves a very substantial discount in what were long and significant sprees of offending.
[73] Mr Lack submits that it is not clear what “substantial discount” the Judge is referring to. There had been no reductions applied to that point to reflect Mr Blair’s personal mitigating factors.
[74] In the end, Mr Lack’s submission amounts to an assertion that the end sentence is manifestly excessive either because of the adoption of too high a starting point or, and he acknowledges a degree of overlap, a failure to reduce the starting point to reflect the totality of Mr Blair’s offending.
[75] So far as the disqualification period is concerned, Mr Lack submits that two years and six months “is crushing for the appellant”. It is out of proportion with the totality of the offending and, Mr Lack submits, simply serves to inhibit Mr Blair’s ability to obtain employment once he is released from custody.
5 Mills v R [2016] NZCA 245 at [18] citing Fonotia v R [2007] NZCA 188 and Haggie v R [2011] NZCA 221.
6 Quoted at [59].
The Crown’s position
[76] The Crown submits that the starting points for the firearms offending are in accordance with the authorities provided to the Judge by the Crown in its sentencing submissions.7 Mr Revell points out that Richardson is Court of Appeal authority for a two years starting point for unlawful possession of a pistol and a loaded shotgun being considered on the light side. Mr Revell notes that the Court of Appeal shared Judge Ingram’s concern about the proliferation of firearms.8 In Mr Revell’s submission, the appropriate starting point for charges 4–10 would have been in the region of three years’ imprisonment. He submits that the uplift of 24 months imposed by Judge Ingram is well within range.
[77] So far as the totality challenge is concerned, Mr Revell submits that Judge Ingram clearly adjusted for totality as he went along. He did not simply calculate standalone sentences and add them together.
[78] Mr Revell submits also that the discounts were generous and had the effect of bringing the end sentence well within the available range.
[79]Mr Revell submits the disqualification period is not excessive:
(a)The disqualification needs to extend beyond Mr Blair’s release from prison for it to have any practical effect. The nature of the driving has to be taken into account. This is an appellant who has repeatedly used his car in a dangerous manner to avoid apprehension by the police.
(b)If Mr Blair needs to drive once he is released from prison for the purposes of employment then he has the option of applying for a limited licence.
(c)Judge Ingram reached the two years six months period by imposing the minimum six months’ disqualification for each of the five driving
7 R v Richardson CA450/02, 25 March 2003; Rowell v Police [2019] NZHC 471; Smith v Police
[2014] NZHC 2196.
8 At [33].
offences. Section 52A(6) of the Land Transport Act 1998 provides that a disqualification ordered in subss (3), (4) or (5) is cumulative on any other disqualification ordered in respect of the facts giving rise to a conviction for failing to stop. Given that Mr Blair was convicted in 2016 for failing to stop, and given the provisions of s 52A(4) of the Land Transport Act, it appears the minimum disqualification on each of the current failing to stop charges should have been one year. Accordingly, even if the other charges resulted in concurrent sentences of six months’ disqualification, the end result would still be two years and six months.
Discussion
[80] It is trite to say that the focus of an appeal against sentence has to be on the end sentence. If the end sentence is not manifestly excessive then it does not really matter how the sentencing Judge calculated it. Of course, if there is an error demonstrated in the process by which the sentencing Judge reached the final sentence then that will have to be taken into account.
[81] I accept Mr Lack’s point that a Judge considering multiple charges cannot simply look at each set of charges on a standalone basis and add the sentencing outcomes together to reach an overall starting point. The overall starting point must reflect an assessment of the gravity of the totality of the offending. If it does not, then unless there is some coincidental error in calculating discounts the end sentence may well be manifestly excessive.
[82] In this case, I accept the Crown’s submission that Judge Ingram was mindful of the need for totality. In my view he adjusted for totality as he went along, and that is behind the comment he made about substantial discounts already being in place.9
[83] Generally, totality is assessed by calculating a starting point for the most serious instance of offending and then assessing the other offending for which sentence
9 See [72].
is to be imposed to see how, overall, it adds to the gravity of the most serious of the offending.
[84] I think Judge Ingram’s approach can be seen in the starting point of two years’ imprisonment he adopted for charges 1 – 3. The most serious offending was charge 1, the charge of burglary. The maximum sentence for burglary is 10 years’ imprisonment. There were very significant aggravating features. First, Mr Blair did not act alone. He had another male offender acting in concert with him. Second, the burglary was of a domestic dwelling. Third, the dwelling was occupied and the occupier was confronted by Mr Blair and his associate. Fourth, Mr Blair demanded guns and money from the occupant and, fifth, the occupant was detained while his house was searched. Finally, after a significant period of detention, Mr Blair and his co-offender left taking money and other possessions of the occupant. In my view, a starting point of three years’ imprisonment or longer was available on this charge alone.10
[85] Charges 2 and 3 relate to Mr Blair returning armed with a pistol and again confronting the occupants of the house. Presumably because of charge negotiation, charges 2 and 3 are at the lowest end of the scale which could address Mr Blair’s actions.
[86] In my view, a starting point for charges 1, 2 and 3 of three years six months’ imprisonment would be available.
[87] Charge 4, unlawful possession of a shotgun, is aggravated by charge 5, unlawful possession of ammunition, because the shotgun was loaded with the ammunition. There is a further, but lesser, aggravation for charge 10 which relates to a considerable number of shotgun rounds found scattered on Mr Blair’s bed. A starting point of two years’ imprisonment on a standalone basis would be available.
10 Arahanga v R [2012] NZCA 480 at [78] – [79]; Gotz v R [2019] NZCA 99; R v Murphy [2015] NZCA 245.
[88] An uplift of three months’ imprisonment for charges 6, 7, 8 and 9, the drug- related offending, would be unexceptional. This would result in an overall starting point of five years nine months imprisonment to this point.
[89] Dangerous driving is charged when the driving does not cause injury or death. Parliament intended the maximum penalty of three months’ imprisonment to apply to driving which having regard to all the circumstances, was dangerous to the public. When one adds the context in this case that the driving was for the purpose of fleeing from the police, the imposition of the maximum penalty of three months’ imprisonment on each of the three charges of dangerous driving is available.
[90] Charge 17 is also a charge of unlawful possession of a firearm but is brought under s 45(1) of the Arms Act and the maximum penalty is four years’ imprisonment. It has to be treated as a separate offence because it relates to a different shotgun on a further occasion. Again, Mr Blair was carrying a shotgun around with him in a car in public. A starting point of two years’ imprisonment or longer is available.
[91] On my analysis, an overall starting point, before adjusting for totality, could be eight years six months’ imprisonment.
[92] On this basis, Judge Ingram’s starting point of six years’ imprisonment, adjusted for totality, was at the lower end of the range available to him.
[93] There is no challenge made to the uplifts the Judge imposed for offending while having absconded on bail and for Mr Blair’s previous record of offending. Nor is there a challenge to the discounts the Judge awarded for personal circumstances and for the entry of pleas of guilty. In my view, both the uplifts and the discounts were generous to Mr Blair.
[94] Standing back and looking at Mr Blair’s case as a whole, I think it must be observed that although Mr Blair is still a young man, he is a very experienced criminal. This is his fifth sentence of imprisonment and he shows few signs of adopting prosocial attitudes. That might be, and probably is, due to a combination of his risk- taking age, the effects of his upbringing and how they shaped his personality. Be that
as it may, this latest tranche of offending is serious and the overall sentence must denounce his behaviour and hold him accountable for his actions.
[95] In my view, Judge Ingram was correct to take account of Mr Blair’s age and any potential he might have for rehabilitation by declining to impose a minimum period of imprisonment.
[96] Overall, I conclude that the end sentence of three years and four months’ imprisonment was towards the lower end of the range available to Judge Ingram. There is no basis on which to say it is manifestly excessive.
[97] As to the period of disqualification, I accept the Crown’s submission that to mean anything it has to extend beyond Mr Blair’s likely release from prison. It also has to reflect the context of the offending for which the disqualification was imposed. No matter the technical basis for reaching the disqualification period, I cannot say it is manifestly excessive.
Outcome
[98]The appeal against sentence is dismissed.
Brewer J
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