Clark v Police
[2019] NZHC 984
•7 May 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI2019-425-1
[2019] NZHC 984
BETWEEN KANE REX CLARK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 May 2019 Appearances:
J Fraser for Appellant
S McKenzie for Respondent
Judgment:
7 May 2019
JUDGMENT OF MANDER J
[1] The appellant, Kane Clark, was sentenced to 20 months’ imprisonment and disqualified from driving for two and a half years after entering guilty pleas to four charges of driving while suspended, being his third or subsequent offence, and a charge of breaching a supervision order. He was granted leave to apply for home detention. Mr Clark appeals the length of the term of imprisonment. He alleges it is manifestly excessive.
Background
[2] On 9 October 2017, Mr Clark was apprehended driving in the vicinity of Queenstown. He had, the previous month, been suspended from driving due to excess demerit points. At the time he was stopped he admitted he was currently suspended. In explanation, he maintained he had caught a ride into Queenstown where he works as a builder, but the person who was meant to drive him home had become intoxicated and he was unable to get home without driving himself.
CLARK v NEW ZEALAND POLICE [2019] NZHC 984 [7 May 2019]
[3] Mr Clark was next apprehended, on 7 December, driving his vehicle in Lumsden. He had driven the vehicle to the grocery store and was apprehended after returning from his shopping. He again admitted to not having a current driver’s licence and being suspended. In explanation, he stated that he had an accident at work and found it hard to walk. On 11 December, Mr Clark was observed driving his vehicle along Frankton Road in Queenstown. In explanation, he stated that he had lost his ride home after going to Court.
[4] Mr Clark’s most recent offending occurred on 12 November 2018, when he was located driving a vehicle on Ida Valley Omakau Road, Oturehua. When stopped he admitted that he was suspended from driving but maintained he was just taking the vehicle for a test drive before he went to Court in Queenstown.
District Court decision
[5] In sentencing Mr Clark, Judge Farnan took as the lead offence Mr Clark’s most recent offending on 18 November, in respect of which she adopted a starting point of 18 months’ imprisonment. A further six months were imposed to reflect the appellant’s previous record, which included some nine previous convictions for driving while disqualified. A three month uplift was applied in recognition of the other charges, including a separate charge of breaching supervision. This resulted in an overall starting point of 27 months’ imprisonment. A seven month discount for the entry of guilty pleas, in respect of which no challenge is made, resulted in the 20 month prison term.
[6] Mr Clark has had ongoing health issues. The Judge acknowledged that feature but was not prepared to extend a discount. In the absence of any apparent remorse, no reduction was made for personal circumstances. However, the Judge “by a small margin” was prepared to grant leave to Mr Clark to apply for home detention. Judge Farnan considered that Mr Clark’s repeated and deliberate defiance could not be met by any lesser penalty and, in the Judge’s view, it represented the least restrictive outcome in the circumstances.
The appeal
[7] The nub of Mr Clark’s appeal is centred on a submission that the sentencing Judge effectively double-counted his history of driving while disqualified or suspended when calculating the sentence. In setting the starting point, Judge Farnan remarked:
[16] In terms of the 12 November 2018 driving while you were not entitled to and while your licence had been suspended, I consider that to be the lead offence. It is the fourth time it was committed while on bail. The maximum penalty is two years’ imprisonment. Your offending, in my view, is at the high end of the scale. You have other prior convictions for driving while disqualified or suspended. It is my view that a starting point of 18 months’ imprisonment is not out of line.
[8] In considering appropriate uplifts from that starting point, the Judge noted as follows:
[17] I would then uplift that 18 months by a further six months to reflect your previous record. I would uplift that by a further three months to reflect the other charges that you are facing, and that is generous. That is a starting point of two years and three months.
[9] Mr Fraser, who appeared on behalf of Mr Clark, submitted that the sentencing Judge had taken into account the appellant’s history, firstly, when fixing a starting point and, secondly, in uplifting the sentence by reference to his previous history. At first blush, I accept that may appear to be the case.
[10] In support of his submission that the starting point was excessive, Mr Fraser also sought to rely on the nature of the offending, noting that none of the four instances of driving while suspended were aggravated by separate driving faults. Counsel also referred to the explanations offered by Mr Clark, and suggested that the offending between October and December 2017 were mitigated by the health issues Mr Clark was suffering at the time and that he was let down by “pre-organised” drivers.
[11] In relation to the 12 November 2018 offending, Mr Clark was required to travel to the Queenstown District Court from Oturehua on that day. He claims he had to jumpstart his vehicle that morning because it was not running well and, while he was waiting for the person he had organised to drive him to Court, he had warmed the car
up by driving it some 200-300 metres out onto the grass verge of the highway before being apprehended by a police officer.
[12] Mr Fraser emphasised a gap in Mr Clark’s prior offending; it being some five years since his last conviction in November 2012, and a further gap of some two and a half years to the offence before that. Mr Fraser also submitted that the sentencing Court should have extended some credit for the appellant’s health issues and questioned whether the principle of totality had been applied appropriately.
Crown’s response
[13] The Crown acknowledge that the sentence imposed was stern but submitted that it was one available to the sentencing Judge in the exercise of her discretion. Ms McKenzie acknowledged that the way the sentence had been constructed may be open to criticism, but that the ultimate sentence was within the available range, marking, as it did, an appropriate judicial response to persistent breaches of driving while suspended.
Decision
[14] Two judicial approaches to sentencing recidivist offenders who drive while disqualified or suspended are discernible from prior sentencing decisions. The first involves setting a starting point with reference to the instant offending and then uplifting for previous offending, including previous convictions for driving while disqualified.1 The second approach involves setting a starting point by reference to the combined effect of both the driving while disqualified or suspended charge before the Court and the defendant’s previous disqualified driving convictions.2 Whichever approach is adopted should reflect the offender’s overall culpability and lead to the same result.3 However, one or other of the approaches is to be taken and not both.
1 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
2 Drinkwater v Police [2013] NZHC 1036; Maxwell v Police [2013] NZHC 3172; Sykes v Police
[2014] NZHC 2642; Opetaia v Police [2015] NZHC 2532; Whitley v Police [2016] NZHC 1025.
3 Keenan v Police [2014] NZHC 1894.
[15] Opetaia v Police is a not dissimilar case to the present.4 There, the appellant pleaded guilty to four charges of driving while disqualified (third or subsequent) which were committed within less than a two month period. The offending represented discrete and separate episodes of disqualified driving, as in the present case. The appellant had four previous convictions for such offending. A starting point of 10 months’ imprisonment was taken by the sentencing Court for the first offence of driving while disqualified, which was then uplifted by adding three, three month sentences cumulatively for each of the other disqualified driving charges. A further two months was added for a breach of intensive supervision, which resulted in an overall starting point of 21 months’ imprisonment before a five month or 25 per cent discount for the guilty pleas reduced the end sentence to 15 months’ imprisonment.
[16] On the appeal, Moore J, after reviewing a number of sentencing decisions involving recidivist disqualified drivers, concluded that the number of previous convictions for driving while disqualified or driving while suspended is directly relevant to the assessment of the starting point for this kind of offending. A starting point of 10 months’ imprisonment, while at the top of the range, was considered appropriate for an eighth conviction. The Judge concluded that a total sentence of 18 months’ imprisonment was appropriate for four driving while disqualified offences that represented the appellants’ fifth to eighth convictions of that type. In the present case, Mr Clark was for sentence for his tenth to thirteenth convictions for driving while disqualified or suspended.
[17] In Whitley v Police, which was another sentencing decision of this Court both the appellant and the Crown referred me to, a starting point of 10 months’ imprisonment was uplifted by the sentencing Court by six months for two additional charges of the same nature.5 At the time, the appellant had eight previous convictions for the same or similar offending. On appeal, Wylie J held the starting point of 10 months’ imprisonment was appropriate for the lead charge but considered that an uplift of six months for each of the other two driving while disqualified (third or subsequent) charges was excessive. Uplifts of four months’ imprisonment were substituted. This
4 Opetaia v Police, above n 2.
5 Whitley v Police, above n 2.
resulted in an overall starting point of 18 months’ imprisonment for the three charges of driving while disqualified (third or subsequent).
[18] For completeness, I note that in Russell v Police a starting point of nine months’ imprisonment for what was the appellant’s eighth conviction for similar offending was considered appropriate.6 In Jenkins v Police, Davison J took a starting point of nine months’ imprisonment in respect of what was the seventh conviction of the appellant for disqualified driving. That was uplifted by three months for another disqualified driving charge for which the appellant was for sentence (the sixth conviction).7
[19] Because Mr Clark was appearing for sentence for what was his thirteenth offence of driving while disqualified or suspended, a 10 month starting point could not be considered excessive. Indeed, the prison term for the lead offence could even be greater. Uplifts of between three and four months to reflect the other three convictions would accord with the approach taken in Opetaia and Whitley. That would result in a legitimate provisional starting point of between 19 and 22 months’ imprisonment. No issue was taken with the further three month uplift that was applied in respect of the breach of supervision. There was also an application to cancel a prior sentence of community work, in respect of which no further sentence was substituted, although I accept the three months may, to some extent, have taken that into account. Overall, the difference between the final starting point taken by Judge Farnan and that which I have reconstructed by reference to Opetaia and Whitley would be minimal, perhaps only a matter of a few months, if any.
[20] There was no challenge to the seven month discount afforded for guilty pleas. That is unsurprising, given it represents slightly more than a 25 per cent discount, notwithstanding that not all the guilty pleas were entered at what could be considered an early stage. Applying a full 25 per cent discount would result in a provisional final sentence very close to the 20 month term reached by the sentencing Judge.
[21] Mr Fraser justifiably drew my attention to the five year gap back to Mr Clark’s ninth conviction for disqualified driving (third or subsequent) of November 2012.
6 Russell v Police [2018] NZHC 858.
7 Jenkins v Police [2018] NZHC 2055.
That is a factor to be taken into account. Against that are the three incidents of driving while suspended that occurred over the short two month period between October and December 2017, and the disqualified driving offence which occurred approximately a year later in November 2018. Mr Clark was therefore before the Court, having committed four driving while suspended offences, within only a two year period.
[22] In relation to the potential personal mitigating factor of the defendant’s health, the sentencing Judge noted that Mr Clark had recently had surgery but considered that Mr Clark’s health issues had been ongoing over some period of time. Insofar as those issues may have some relevance to his offending, he had been afforded sufficient time to make any necessary arrangements to accommodate his lack of a licence. There is no suggestion that Mr Clark’s health would affect his ability to serve a sentence of imprisonment, although that may have influenced the Judge to grant him leave to apply for home detention.
[23] Mr Fraser, in his written submissions, contended that it was not clear how the Judge had applied the totality principle. However, as Judge Farnan observed, Mr Clark was before the Court on four separate charges of driving while being suspended and cumulative sentences could have been imposed in respect of all charges. It is apparent from the analysis I have conducted regarding the appropriate level of sentence for multiple instances of offending by a recidivist disqualified or suspended driver that the sentences imposed in respect of each of the four charges have been considerably discounted. That clearly was as a result of totality considerations.
[24] The point has been repeatedly made by sentencing Courts and on appeal that breaches of disqualification or suspension orders must be treated with the seriousness they deserve.8 A stern judicial response will be warranted.9 Judge Farnan took a dim view of Mr Clark’s repeated offending, observing that he was “someone who simply drives when [he] wants to, without considering [his] disqualification”. As the Judge was entitled, she did not accept the explanation offered for his driving while disqualified on 12 November. While noting the health issues arising from Mr Clark’s recent hospitalisation and operation, the Judge accurately categorised Mr Clark as a
8 Opetaia v Police, above n 2, at [39].
9 Whitley v Police, above n 2, at [31].
recidivist driver who makes excuses for driving notwithstanding already being before the Courts for charges of driving while suspended and while on bail for such charges. Judge Farnan described Mr Clark as a person who has shown complete disregard for disqualification orders and simply drives when he wants to.
[25] When all these considerations are taken together, I do not consider the total sentence reached to be wholly out of proportion to the overall gravity of the offending when taken in combination.10 A mathematical or formulaic approach is to be discouraged in the approach to sentencing. However, even accepting for the purposes of the appeal that the sentencing Judge may have erred in the way in which the sentence was constructed, I do not consider a different sentence should be imposed.11 It is well-established that it is the sum of the individual parts of the sentence that must broadly be correct and that whether a sentence is manifestly excessive is to be examined in terms of the final sentence imposed rather than the process by which that sentence was reached.12
[26] As the Crown submitted, the final sentence may be considered stern, but I do not consider it was outside the range available to the Judge in the exercise of her sentencing discretion. Having undertaken the sentencing exercise myself, it is possible that a lesser sentence could have been arrived at, but to alter the sentence to such a minimal degree amounts to tinkering. It should also be noted that the exercise I have taken on the appeal, in terms of recalculating the appropriate sentence, takes no account of Mr Clark’s other convictions, which include similar offending for failing to comply with orders, namely failures to answer his bail.
[27]For these reasons the appeal fails and it is dismissed.
Land Transport Act 1998, s 94
[28] Mr Fraser’s written submissions did not address the period of Mr Clark’s disqualification which cumulatively amounts to a two and a half year period. In oral submissions, Mr Fraser sought to address that issue, observing that such a long period
10 Sentencing Act 2002, s 85(2).
11 Criminal Procedure Act 2011, s 250(2).
12 Poi v R [2015] NZCA 300; Ripia v R [2011] NZCA 101 at [15].
of disqualification would likely result in setting up Mr Clark to fail again upon his release from prison. However, there is no proper basis upon which I can consider the issue.
[29] An application to be sentenced to a community-based sentence in lieu of disqualification under s 94 of the Land Transport Act 1998 had been flagged prior to Mr Clark’s sentencing. However, that application was abandoned before Judge Farnan. The Judge noted that Mr Clark no longer wished to proceed with the s 94 application and wished to be sentenced that day. There is no suggestion that the abandonment of that application was other than pursuant to Mr Clark’s instructions or that he was unaware of the provision. There is, therefore, no decision regarding such an application which can be the subject of an appeal to this Court.
Solicitors:
John K Fraser Law Ltd, Invercargill Preston Russell Law, Invercargill
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