C v Police HC Wellington CRI-2005-485-107

[2005] NZHC 18

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-107

BETWEEN    C  Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 September 2005

Appearances: C J Nicholls for Appellant

N P Chisnall for Respondent

Judgment:      6 September 2005

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 6th day of September 2005.

RESERVED JUDGMENT OF GENDALL J

[1]      This is an appeal against an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of two years, which order was imposed upon the appellant pleading guilty to driving whilst disqualified.   He was sentenced on

14 June  2005  to  imprisonment  for  one  year,  together  with  the  two  years’

disqualification from driving from 4 August 2005.

[2]      On his behalf counsel submits that the order, being doubled the minimum of one year required by statute was not justified and was manifestly excessive.   He submits that the minimum disqualification that will operate as a deterrent is what is required, but no more, relying upon comments made in Fleming v Commissioner of Transport [1958] NZLR 101. He submits that the “usual” way in which charges of driving whilst disqualified are dealt with in the District Court is for a sentencing

Judge to impose only the minimum mandatory period.

C V NEW ZEALAND POLICE HC WN CRI-2005-485-107 6 September 2005

[3]      The essential facts were that the appellant had been released from prison on

5 December 2004 and thereafter offended between 9 January and 29 March 2005 in a number of ways and pleaded guilty to burglary, aggravated assault, theft, resisting arrest, using a document for pecuniary advantage and assaulting a female.   In the course  of  the  offending  involving  the  assault  of  the  female  the  appellant  was departing in a motor vehicle when he was stopped by the police.  He gave a false name but was identified as having been earlier disqualified from driving for one year from 5 August 2004.  He was charged with driving whilst disqualified on a third or subsequent occasion and as I have said was sentenced to one year’s imprisonment concurrent with another term of two years’ imprisonment imposed for the other offending, and disqualified for two years commencing 4 August 2005.

[4]      The appellant had 112 previous convictions including five for driving whilst disqualified.   He is aged 33 and had served multiple terms of imprisonment.   In imposing the disqualification the Judge noted that the appellant had been disqualified from driving for one year from 5 August 2004 at which time he was sentenced to eight months’ imprisonment.  He served four months of that sentence.  Within a very short time of being released was driving again.  Whilst it may be in the absence of aggravating circumstances a period of disqualification in excess of the minimum was not usually justified, in this case there are significant aggravating circumstances.

[5]      Clearly the immediate statutory period of one year’s disqualification has not proved a sufficient deterrent to encourage the appellant to obey the law.  The case of Fleming v Commissioner of Transport (supra) is simply authority for the factor to be considered as now contained in s8(g) of the Sentencing Act 2002, namely that the Court

“…must  impose  the  least  restrictive  outcome  that  is  appropriate  in  the circumstances.”

What is appropriate to deter this appellant from continuing to offend may well be something quite different to that required to deter others.

[6]      Practical effect of the term of disqualification would appear to be that it relates for only one year and four months.  That is because he was sentenced to a

term of two years’ imprisonment on burglary charges at the same time and, allowing for time spent on remand, he would not be released until approximately April 2006. So eight months of the disqualification period will run during the time he is in prison.  An effective term of one year and four months could hardly be said to be manifestly excessive.

[7]      The Sentencing Act 2002 makes it clear that the Court must take into account the gravity of the offending and although imposing the least restrictive outcome appropriate in the circumstances, there is no foundation to a submission that a minimum  period  of  one  year’s  disqualification  is  the  tariff  or  benchmark  for someone who has had five convictions for driving whilst disqualified.  The statutory minimum of one year’s disqualification imposed on the appellant on two previous occasions has proved to be ineffective.   Counsel says he did not reoffend for significant periods but of course it is obvious for some of those times he was in prison.    The  sentence  was  well  within  the  permissible  range  available  to  the District Court Judge and could not be said to be manifestly excessive.  Indeed, it was justly deserved and necessary for protection of the community.

[8]      The appeal is entirely without merit and dismissed.

…………………………..

J W Gendall J

Solicitors:

C J Nicholls, Solicitor, Wellington for Appellant

Crown Solicitor, Wellington for Respondent