Cattell v Police HC Hamilton CRI 2011-419-56

[2011] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-419-56

BETWEEN  TOSZAC CATTELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 August 2011

Counsel:         L Darby for Appellant

J N Foster for Respondent

Judgment:      23 August 2011

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

L Darby, Hamilton

CATTELL V NEW ZEALAND POLICE HC HAM CRI 2011-419-56 23 August 2011

Introduction

[1]      Mr Cattell appeals against an effective sentence of one year four months imprisonment imposed on three charges of driving while disqualified on a third or subsequent occasion.  The appeal is based on the totality principle.  Ms Darby, on Mr Cattell’s behalf, submits that the overall sentence was manifestly excessive, having regard to the gravity of the overall offending.

[2]      On Mr Cattell’s behalf, it is accepted that a sentence of imprisonment was appropriate.  There was no suitable address available for home detention purposes. Therefore, it is the length of the term of imprisonment that is in issue on appeal.

Facts

[3]      The charges arose out of three incidents that occurred in relatively close proximity to  each  other.   The events  fall  to  be considered  against  Mr Cattell’s disqualification  from  holding or obtaining a driver licence for a period  of nine months.   That disqualification order was made on 5 July 2010, at which time Mr Cattell was convicted on two charges of driving while disqualified; one each in January and February 2010.   The disqualification order would have expired on 4

April 2011.

[4]      At 11.20pm on 18 November 2010, Mr Cattell was driving a Fiat motor vehicle north on Pukete Road, Hamilton.   An alcohol check-point was being conducted in that location.  Mr Cattell turned into a side street as he approached the check-point,  in  order  to  avoid  detection.    Subsequently,  he  was  located  parked outside an industrial building.   At that stage, Mr Cattell admitted to being a disqualified driver.  In explanation, he said that he was trying to do a friend a favour by giving him a ride home.

[5]      Mr  Cattell  was  charged  with  driving  while  disqualified  on  a  third  or subsequent occasion arising out of that incident.  He appeared in the District Court

on 9 December 2010 at which time he was remanded on bail without plea until 10

January 2011. The remaining offences were committed while he was on bail.

[6]      At 3pm on 23 December 2010, Mr Cattell was driving a Honda motor vehicle east on SH 26, near Eureka.  The vehicle was stopped by police officers.  Mr Cattell admitted being a disqualified driver.  No explanation was given as to why he was driving while disqualified.

[7]      On 8  January 2011,  at  12.10am  Mr  Cattell  was  driving a Toyota  motor vehicle east along Ellicott Road in Hamilton,  near the intersection with Avalon Drive. As a result of a minor traffic offence, the vehicle was stopped on Rimu Street. Mr Cattell gave a false name (Nathan Harvey) and was issued an infringement notice in that name.  Subsequently, police ascertained that Mr Cattell was the driver.

[8]       At  the  time  of  these  incidents  Mr  Cattell  was  19  years  old.    Between September 2009 and 5 July 2010 he had been convicted on two charges of driving while disqualified, one of driving with an excess breath alcohol concentration, one of breaching a community work order, two of failing to answer District Court bail and two of theft.

[9]      Having entered pleas of guilty to the three charges out of which the appeal arises, Mr Cattell was sentenced in the District Court on 17 June 2011.  There were other charges on which he appeared for sentence on that day but they assume little significance in the context of the present appeal.   I am prepared to deal with the appeal on the basis of the totality argument advanced in respect of the three charges of driving while disqualified charges.

[10]     Each of the November, December and January charges involve driving while disqualified  on  a third or subsequent  occasion.    Charges  of that  nature carry a maximum period of imprisonment of two years.  After considering relevant factors on sentencing, Judge Connell imposed:

(a)       A term of four months imprisonment for the November charge

(b)      A term of five months imprisonment for the December charge

(c)       A term of seven months imprisonment on the January charge.

Those individual sentences reflected the escalating seriousness of the offending.  By accumulating the three sentences, an effective sentence of one year four months imprisonment was reached.

Analysis

[11]   The circumstances in which cumulative and concurrent sentences of imprisonment can be imposed are set out in ss 83 and 84 of the Sentencing Act 2002. There is no complaint about the accumulation of sentences, of itself.  The issue is whether, in terms of s 85(2) of the Act, the end sentence represents a proportionate response to the overall offending.

[12]     Section 85(2) provides:

85       Court to consider totality of offending

...

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

....

[13]     The question is whether a sentence of imprisonment of one year and four months is “wholly out of proportion to the gravity of the overall offending” in terms of s 85(2).  The gravity of the offending must be assessed by reference to the three occasions over a period of three months in which Mr Cattell deliberately drove contrary to  the provisions  of a disqualification  order that  had  been  imposed  as recently as July 2010.  The first of the offences occurred about four months after the disqualification order was made.

[14]     I agree with Ms Foster’s characterisation (for the police) of the offending as repetitive disobedience of a Court order that shows a complete disregard for the

orders.  Breach of an order disqualifying a driver is akin to a contempt of Court.  In effect, Mr Cattell deliberately disobeyed a Court order, without proper excuse.  The excuse he gave on the first occasion for driving while disqualified was facile.  No excuse was proffered on the second occasion.  By the time of the third, Mr Cattell had resorted to giving a false name in an endeavour to escape detection.

[15]     Having regard to the maximum penalties available on each charge and the escalating seriousness of each offence as time progressed, I consider that the District Court Judge was right to impose the sentences of imprisonment that he did and to accumulate them.  The effective sentence imposed cannot be regarded as wholly out of proportion to the gravity of the overall offending.

Result

[16]     In those circumstances, the appeal against sentence is dismissed.

P R Heath J