Cadle v Police

[2017] NZHC 3042

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000139 [2017] NZHC 3042

BETWEEN

DAVID WILLIAM CADLE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 December 2017
Appearances:	Appellant Appears in Person P A Norman for Respondent
Judgment:	8 December 2017

JUDGMENT OF GENDALL J

CADLE v NEW ZEALAND POLICE [2017] NZHC 3042 [8 December 2017]

Introduction

[1]      The  appellant  was  sentenced  in  the  District  Court  at  Christchurch  by

Judge Callaghan on 11 October 2017 on a range of charges that started in December

2016 involving dangerous driving and failing to stop and then possession of cannabis and methamphetamine on 1 February 2017. After appearances in Court and being on bail on all those charges, the appellant committed further offences involving driving while suspended and possession of an offensive weapon on 5 June 2017 and driving while suspended again on 7 July 2017 and 31 July 2017.

[2]      Turning  now  to  the  detail  of  those  events,  on  the  first  occasion,  on

20 December 2016, the appellant, who was then subject to sentence on earlier charges, was observed avoiding a police checkpoint.   He was seen driving dangerously by accelerating and driving up the wrong side of the road and into a parking area which was busy with Christmas pedestrian traffic.  He also failed to stop for blue and red lights once police began to pursue him.  He managed to elude police that day.

[3]      On the second of these occasions, on 1 February 2017, the appellant was located and arrested by police pursuant to a warrant for his arrest. At that time, he was also found in possession of small quantities of both cannabis and methamphetamine, and was charged accordingly.

[4]      The appellant was suspended from driving for three months on 4 May 2017 in respect of those earlier charges.

[5]      Shortly thereafter, on the three later occasions (5 June, 7 July and 31 July 2017) he drove whilst subject to this suspension. On the first of these occasions, the appellant was apprehended with a large machete in his vehicle, which resulted in the charge of possession of an offensive weapon.

[6]      Some of the offending relating to the early charges before 26 March 2017 it seems was committed whilst the appellant was on parole, and other offending occurred whilst he was on remand.

[7]      The  appellant  was  sentenced  in  the  District  Court  at  Christchurch  by Judge Callaghan on 11 October 2017 to a total of 16 months’ imprisonment, and disqualified from driving for 15 months, on all these charges.1

[8]      The appellant appeals against this sentence on the basis that it is manifestly excessive.

Principles on appeal

[9]      Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2  The Court will not engage in an exercise which amounts to mere tinkering with the sentence.3

[10]     If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.      As Toogood J said (citing Ripia v R4) in Larkin v Ministry of Development:5

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[11]     The focus on most appeals of this kind is thus on the end sentence.   In

Tutakangahau v R,6 the Court of Appeal confirmed that:7

1      Police v Cadle [2017] NZDC 23079.

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Maihi v R [2013] NZCA 69.

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

5      Larkin v Ministry of Development [2015] NZHC 680.

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

7 At [36].

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

District Court decision

[12]     Judge Callaghan in his 11 October 2017 sentencing notes signalled a final end point sentence for all the offending in question of 16 months’ imprisonment. Although at one level (as the appellant commented in his submissions before me) it is somewhat confusing from the decision to understand the precise structuring of the sentence adopted here by Judge Callaghan, he did endeavour to articulate the process by which he arrived at that final sentence.  Judge Callaghan considered that an overall starting point was to be one of two years’ imprisonment. That reflected starting points of one month for the dangerous driving charge, two months for the drug possession charges, three months for the charge of possession of an offensive weapon, and cumulative sentences of three months, six months, and nine months respectively for the three successive charges of driving while suspended.  Taking a cumulative approach this resulted in a starting point of 24 months’ imprisonment.

[13]     To this starting point the Judge considered there should be an uplift of two months to reflect the offending which occurred in part while the appellant was subject to sentence and in part whilst he was on bail. The Judge then considered the question of totality, and resolved that a totality discount was in order and “in the round”, an end starting point of 22 months’ was appropriate.

[14]     Referring then to discounts for mitigating factors, the Judge considered:8

You are entitled to a discount for your guilty plea probably in the region of 20 percent because some were not guilty pleas and were changed later, but that would be about four and a half months, but I have decided given the achievements you have made here while you have been on remand that I can reduce that a little bit more and round it off at six months’ reduction taking the end sentence to 16 months’ imprisonment.

[15]     The Judge declined to give leave to apply for home detention.  He had earlier considered in his reasons that “home detention in my assessment even if there were an

8      Police v Cadle, above n 1, at [6].

address would not be a suitable [sentence]”.9  With the sentence of imprisonment, the Judge also disqualified the appellant from driving for an effective period of 15 months from the date of sentence. In addition, he made an order for destruction of the machete, and made an order under s 129B of the Sentencing Act 2002 that a written warning be issued to the owners of the vehicles which the appellant had driven.

Analysis

[16]     The appellant’s Notice of Appeal records the primary ground of appeal as “[t]he sentence was too long for the charges I was facing”.  This is essentially an argument that the end sentence was manifestly excessive.  He also objects first, to the fact that his offending was treated cumulatively for sentencing purposes, and secondly, that he says there were unreasonable uplifts involved.

[17]     The appellant says that the sentences for some or all of his offences should have been imposed concurrently. As to that aspect, the Sentencing Act 2002 provides that cumulative sentences will generally by appropriate for offending which is different in kind, even if it forms part of a connected series of events.10   Concurrent sentences will be appropriate only where the offences are similar in kind and are part of a connected series of events.11    In principle, therefore, the Judge was justified in imposing cumulative sentences for the various sets of offending, to the extent that they differed either in kind, or were committed on entirely separate occasions and thus did not form a connected series of events.   A caveat when cumulative sentences are contemplated is that there must be due regard for totality.   As to that, however, it is clear in my view that here Judge Callaghan was acutely aware of that need.  Indeed, he reduced the overall starting point by four months on that account.

Sentences for driving while suspended

[18]     The three convictions, for which Judge Callaghan imposed sentences of three months, six months, and nine months’ imprisonment respectively, were the appellant’s

seventh,   eighth,   and   ninth   instances   of  driving  whilst   either  suspended   or

9      Police v Cadle, above n 1, at [5].

10     Sentencing Act 2002, s 84(1).

11     Section 84(2).

disqualified.12   The  Court  of Appeal  has  affirmed,  in  relation  to  the  analogous offending category of driving whilst disqualified, the importance of adherence to such orders for maintaining the integrity of the driving and road safety system in New Zealand.13

[19]     As counsel for the respondent notes, there have come to be two accepted methods by which the role of previous convictions may be taken into account at sentencing.   The first involves selecting a starting point based only on the instant offending, and then applying an uplift for relevant previous convictions.14  The second is to incorporate within the appropriate starting point a tacit uplift to reflect the aggravating nature of those previous convictions.15   Judge Callaghan appears to have adopted the second approach. Although the first approach is perhaps to be preferred, either constitutes a viable approach to sentencing.16

[20]     Before me, counsel for the respondent referred to comparable case law which she said demonstrates that a total starting point of 18 months on these charges was within range. In Opetaia v Police, a 19 month starting point on four charges of driving while disqualified (the appellant’s fifth through eighth), was upheld on appeal.17

Although a sentence of 10 months for the eighth conviction was considered to be at the top end of the range, the 19 month sentence on all four was considered within range.18  As Moore J noted:19

…the number of previous convictions for driving while disqualified or driving while suspended is strongly and directly relevant in assessing the starting point for this kind of offending…[t]he fact that multiple convictions are sentenced together will inevitably justify the imposition of a harsher sentence.

[21]     In  giving his decision,  Moore J  referred to several other authorities.    In

Peterson v Police, a total starting point of 17 months was upheld on a single charge

12     Under the Land Transport Act 1998, driving while suspended and driving while disqualified are constituted in the same offence (s 32(1)), and when laid in the aggravated form, attract the same maximum penalties (s 34(2)).

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

14     Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.

15     Drinkwater v Police [2013] NZHC 1036; Maxwell v Police [2013] NZHC 3172.

16     Keenan v Police [2014] NZHC 1894; Opetaia v Police [2015] NZHC 2532.

17     Opetaia v Police, above n 16.

18 At [40].

19 At [38].

(the appellant’s sixth), of driving while disqualified, in the context of a significant previous criminal history.20  In Finch v R, a 14 month component of a sentence, which reflected three driving while disqualified charges (the appellant’s fifth, sixth, and seventh), was upheld on appeal.21

[22]     In Yan v Police, a sentence of 14 months’ imprisonment was upheld on three charges (the appellant’s seventh, eighth, and ninth).22  This was imposed as 10 months on the ninth conviction, three months on the seventh, and one month on the eighth (which had not been laid in the aggravated form).   Finally, in Keenan v Police, a starting point of 20 months on a single charge of driving while disqualified (the appellant’s eleventh), was upheld although it was considered stern.23

[23]     The authorities demonstrate that penalties imposed on successive convictions for this type of repeat offending will scale, often dramatically.   I consider that an effective sentence of 18 months’ imprisonment as a starting point on the three charges here, was available to the Judge.  The authorities I have noted suggest that a starting point on the appellant’s ninth conviction here could well have been greater than the nine months’ imprisonment selected.  But, in any event, that 18 months’ imprisonment figure across all three charges, in my view, is not outside the available range.

Cumulative starting points for other offending

[24]     The other cumulative aspects of the appellant’s sentencing can be dealt with in fairly short order.

[25]     I consider that the additional one month sentence for dangerous driving, and the two months combined sentence for the drug possession charges, are both warranted in light of the appellant’s record.   His criminal history contains two previous convictions for dangerous driving, two convictions for careless driving, and one conviction for reckless driving.  The reckless driving conviction and one dangerous

driving conviction were each met with a short concurrent prison sentence.   The

20     Peterson v Police, above n 14.

21     Finch v R [2012] NZCA 446.

22     Yan v Police [2017] NZHC 1435.

23     Keenan v Police, above n 16.

dangerous driving exhibited by the appellant  on  20  December 2016  was  at  the relatively low end of offending of its kind, although the presence of a greater volume of pedestrian traffic at the time tended to heighten the overall danger posed.  With respect to the drugs charges, the appellant has some seven relevant convictions.  These are for cultivation and possession of cannabis, and possession of utensils associated with methamphetamine. The quantities involved in the present offending (four grams of cannabis and three point bags of methamphetamine), place it at the lower end of offending, but the previous convictions are a decidedly aggravating factor. In the circumstances, I consider a two month uplift to reflect both charges was appropriate. Finally, I consider the three month uplift imposed for the possession of the machete, was justified.   The maximum penalty for such an offence is three years’ imprisonment.24   The seriousness of unlawful possession of an easily lethal weapon such as a machete, is self-evident.

The sentence overall

[26]     On balance, and in light of all the matters I have outlined above, I do not consider that the overall sentence here can be considered to be manifestly excessive. I have found that the various uplifts going to the charges were justifiable individually, provided the end sentence accorded with the principle of totality.  I am satisfied that did occur here.  In relation to the uplift for the aggravating feature of this offending occurring either while the appellant was subject to sentence or on bail, the appellant contends that it was excessive.  I do not consider that, in the circumstances, an uplift of two months was excessive or otherwise inappropriate to reflect what is a serious and aggravating feature of offending generally.   This is especially so given Judge Callaghan’s subsequent adjustment for totality.

[27]     The appellant’s Notice of Appeal also records that the Judge “never took any of the circumstances into account”.   Whatever may be meant by that claim, I am satisfied it is not the case here, especially with regard to the effect of mitigating factors. The 20 per cent discount given for guilty pleas was consistent with the timing of some of those pleas, looking at the charges overall.  Additionally, the appellant was given

the benefit of a discount for the positive steps he had taken immediately prior to

24     Crimes Act 1961, s 202A(4)(a).

sentencing.  In my judgment, that represented a proper and sensitive exercise of the

Judge’s discretion.

Conclusion

[28]     The appellant has failed to demonstrate that there has been an error in his sentencing, such that it was manifestly excessive.

[29]     The appeal is dismissed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Appellant