Collett v Police

[2017] NZHC 489

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-41 [2017] NZHC 489

BETWEEN

BRYAN WAYNE COLLETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 March 2017 (heard at Whangarei)
Appearances:	M Pecotic for Appellant MB Smith for Respondent
Judgment:	15 March 2017

ORAL JUDGMENT OF TOOGOOD J

Collett v NZ Police [2017] NZHC 489 [15 March 2017]

[1]      This  judgment  replaces  my oral  judgment  delivered  on  15  March  2017, which was recalled after I discovered that part of the decision was based on an error by me.

[2]      On 3 December 2015, Bryan Wayne Collett’s licence was suspended, for

acquiring excess demerit points under the Land Transport system, for a period of

3 months ending 3 February 2016.  He had reached 100 demerit points by exceeding the 100 kilometres per hour speed limit on four occasions, and exceeding 80 kilometres per hour once.  That was the fourth time Mr Collett had been suspended for accumulating excessive demerit points; and it appears from his history of infringements that most of the points he has accumulated in the past have been the result of speeding offences.

[3]      Only nine days after the suspension was imposed, at around 12 noon on Saturday  12  December  2015,  Mr Collett  drove  a  motor  vehicle  along  State Highway 1 at Orewa. The vehicle was seen speeding at 131 kilometres per hour by a mobile police patrol and Mr Collett was stopped. Mr Collett could not produce a driver’s licence and, after his details were obtained, Police checks revealed that his license was suspended. Mr Collett explained that he was driving his son to see his family.

[4]      On 12 January 2016, Mr Collett pleaded guilty to one charge of driving a motor vehicle on a road while his driver’s licence was suspended, having been convicted at least twice previously of similar offending.1   It was, in fact, Mr Collett’s thirteenth conviction for driving while disqualified or suspended.

[5]      It was not until 6 December 2016 that Mr Collett appeared in the District

Court before Judge DJ McDonald for sentence.   He received 12 months' imprisonment and now appeals against that sentence.

1      Land Transport Act 1998, s 32(1)(c), s 32(4); maximum penalty 2 years’ imprisonment.

[6]      As s 32(4)(a) of the Land Transport Act 1998 (the LTA) mandates that the offender be disqualified from holding a driver’s licence for one year upon conviction for  the  third  or  subsequent  offence  of  driving  while  disqualified  or  suspended, Mr Collett applied for a substitution of a community-based sentence under s 94 of the LTA.   Judge DJ McDonald refused the application on the grounds of public safety issues.

[7]      In taking into account the purposes and principles of sentencing, the Judge identified  the  need  to  hold  Mr  Collett  accountable,  to  deter  and  denounce  his conduct, and to protect the public.  This was particularly because Mr Collett drove so soon after suspension and at a speed that exhibited a clear disregard for the safety of other road users.  The Judge noted that he was required to be consistent in imposing the same type of sentence for similar kinds of offending.  He correctly put aside the fact that Mr Collett is a senior patched member of the Head Hunters as having no relevance to the sentence.   The Judge also noted that he must impose the least restrictive outcome.

[8]      Setting  the  starting  point  for  the  offending,  the  Judge  took  into  account

Mr Collett’s  driving  nine  days  after  being  suspended;  his  speeding;  and  his

13 previous convictions for driving whilst disqualified, which started in 1988 and continued through to 2013.   The Judge set a starting point of 12 months’ imprisonment.  He then considered Mr Collett’s previous convictions, “particularly convictions against the Land Transport Act”, and more recently for “possession of firearms and the like”.  Judge McDonald decided these called for a four-month uplift to bring the sentence to 16 months’ imprisonment.

[9]      Regarding mitigating factors, the Judge held that Mr Collett was entitled to a full 25 per cent discount for an early guilty plea, reducing the sentence to 12 months’ imprisonment.

[10]   The Judge then considered whether he should substitute a sentence of community detention, a course recommended in the pre-sentence report.   Judge

McDonald rejected the probation officer’s methodology, saying it hardly looked at the offending and instead focused on other reasons for a light sentence.  These were Mr Collett’s partner’s good work in the community, and the presence of two people at home recovering from methamphetamine addiction. The Judge formed the view that, in accordance with s 16 of the Sentencing Act 2002, the need to deter and denounce and protect the public required a full-time custodial sentence.

Grounds of Appeal

[11]     Mr Collett appeals his sentence on the grounds that:

(a)       the sentence imposed was manifestly excessive; and

(b)the sentence imposed was not the least restrictive outcome available to the Court.

Approach to appeal

[12]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[13]     In any other case, the Court must dismiss the appeal.2

[14]     The Court of Appeal has held that an error includes a finding that a sentence was manifestly excessive, and it has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings

Act 1957.3   Despite s 250 making no express reference to “manifestly excessive”, the

2      Criminal Procedure Act 2011, s 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

principle is “well-engrained” in the Court’s approach to sentence appeals,4  and the approach focuses on whether the sentencing judge erred.5

[15]   Moreover, it is the end sentence which is important from the appellate perspective  and not the method by which it was reached.   This Court will not intervene on appeal 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 assessed in terms of the sentence given, rather than the process by

which it is reached.6

Summary of appellant’s submissions

[16]     In her written submissions on behalf of the appellant, Ms Pecotic argues that: (a)     on 23 February 2016, Mr Collett received an indication from a Judge

which made it clear to him that a community-based sentence would be imposed;

(b)favourable pre-sentence reports endorsed a sentence of community detention and recommended Mr Collett not be disqualified given his remote location, lack of public transport, and the fact that only one out of four adults in the house held a licence;

(c)       Mr Collett’s previous convictions for driving while disqualified are

largely historical;

(e)      the present offending was not accompanied by an aggravating factor such as excess breath alcohol or careless/reckless use of a vehicle; and

(f)      the Judge failed to give Mr Collett credit for recent rehabilitative steps, or to take into account the important role Mr Collett played in

the household.

4      Tutakangahau, above n 3, at [33], [35].

5      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

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

[17]     Principally, however, Ms Pecotic submits that Judge McDonald took into account Mr Collett’s previous convictions for traffic offending twice: first, when setting the starting point and, second, when uplifting the starting point to take into account his previous convictions including, “particularly”, the traffic offending.

[18]     Ms Pecotic submits that an appropriate starting point ought to have been between six to eight months and that, if any uplift was to be imposed for previous convictions, it ought to have been one to two months only.  Electronic surveillance was available and appropriate and the least restrictive outcome in the circumstances. She also submitted that the length of disqualification, which added two months to the statutory  minimum,  did  not  take  into  account  the  time  Mr Collett  had  been suspended from driving, and she submitted that a substantial term of community work could have been imposed in lieu of the disqualification.

[19]     Ms Pecotic acknowledges realistically, however, that the passage of time has overtaken  the  argument  that  a  community-based  sentence  ought  to  have  been imposed and should be substituted on appeal.

Discussion

[20]     There is some force in Judge McDonald’s view that the recommendation of the  probation  officer  did  not  give  adequate  weight  to  the  circumstances  of Mr Collett's offending.  The Judge was entitled to take into account not only that the suspension from driving had been imposed only very recently before Mr Collett breached the order, but also that he was travelling at high speed.  There is a strong inference from the facts, including the reasons for the suspension and Mr Collett's traffic history, that he seems to believe that he is entitled to drive whenever he likes, in whatever manner he chooses, in total disregard for the law and, importantly, for the safety of the public.  Although the personal factors relied upon by counsel are relevant, and another judge may have been more sympathetic to the consequences of imprisonment for Mr Collett and his household, the sentencing purposes of accountability, deterrence and public protection entitled Judge McDonald to come to a less charitable view.  I do not consider he erred in determining that a sentence of imprisonment was required in this case.

[21]     In determining the appropriate length of the sentence, however, I am satisfied that the Judge erred in the way he took Mr Collett's previous driving history into account.   Mr Wall sought to explain the Judge's approach by emphasising that, in taking the traffic convictions into account in setting the starting point, the Judge was referring  to  the  number  of  instances  of  driving  while  disqualified.     Counsel submitted that, in later referring to Mr Collett's previous convictions, the Judge was referring to other traffic offending for which he was convicted, and his other convictions for offending of an entirely different kind.  I am not persuaded, looking at the terms in which the Judge expressed himself,  that that is what should be inferred as the Judge's reasoning.  The Judge’s reference to “convictions” must mean that he cannot have been referring to traffic infringements for speeding.  And the other  convictions  were  largely irrelevant,  except  to  indicate  that  prior  terms  of imprisonment had not deterred Mr Collett from continuing to offend as a motorist.

[22]     It would have been open to the Judge to use the prior offending history as a factor in determining the starting point or to uplift the sentence from a starting point based on the circumstances of the offending, but he was not entitled to do both.  In relying on the previous offending to set the starting point and then adding an uplift, particularly for traffic convictions, the Judge double-counted in a way which was contrary to logic, fairness and authority.7

[23]     The Judge having been in error, I am required to determine whether another sentence  is  appropriate.    Having  regard  to  the  period  of  the  sentence  which Mr Collett has served already, I do so on the basis that a community-based sentence in lieu of imprisonment is no longer a tenable option.

[24]     Bearing in mind the historical nature of much of the relevant prior offending, and taking into account the mitigating factors which might have justified a community-based sentence, I consider a starting point of 10 months' imprisonment or, say, 40 weeks' to be appropriate.  A discount of 25 per cent for the early guilty

plea reduces the sentence to one of 30 weeks' imprisonment.  Since Mr Collett will

7      Gibbs v  Police [2015] NZHC 2460 at [11]; Matika v  Police [2013] NZHC 2806 at [12];

Herewini v Police [2015] NZHC 2807 at [35].

be entitled to automatic release after serving half that short-term sentence, he will be due for release almost immediately.

Period of disqualification

[25]     I discussed  with  counsel  what,  if  anything,  should  be done  about  Judge McDonald's order disqualifying Mr Collett  from  holding or obtaining a driver's licence for 14 months.  If the sentence of 12 months' imprisonment had prevailed, the effect of the disqualification would have been that Mr Collett would have remained disqualified from driving for a period of 8 months after his automatic release from prison having served half the sentence imposed.   The period of suspension which Mr Collett breached in December 2016, ended in March of that year.

[26]     I acknowledge that Mr Collett has spent a period of some four months of that disqualification  period  in  prison.     Nevertheless,  in  all  of  the  circumstances, I consider that a further lengthy period of disqualification may simply set Mr Collett up to re-offend.  It would be better, in my view, to clean the slate a short time after he is released from prison, and give him an opportunity to demonstrate that he has reformed his views about driving in the way he claims to have reformed his views about drugs and alcohol.  I am mindful also of the continuing effect on Mr Collett's household of the continued period of disqualification.

[27]     I am not in a position, however, simply to reduce the disqualification period. The effect of s 81(1) of the LTA is that, because the Court is required by the Act to disqualify Mr Collett from holding or obtaining a driver licence for a period not less than the specified minimum period of one year, the Court must order that he be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.  I cannot see anything in the offending itself which would justify reducing the period; the reasons why I would be inclined to do so if I had jurisdiction are related to Mr Collett’s personal circumstances.

[28]     Ms Pecotic invited me to consider imposing a community-based sentence in lieu of disqualification for the remainder of the 14-month period ordered by the

District Court.  Mr Collett’s earlier application for an order to that effect under s 94 of the LTA was dismissed by Judge McDonald and his refusal to make an order under s 94 was not subject to an appeal.  A further application under that section is required and I will need to hear argument.

Result

[29]     For the reasons given, I allow the appeal in part.  The sentence of 12 months' imprisonment is quashed and a sentence of 30 weeks' imprisonment is imposed in its place.   The order that Mr Collett be released on the standard and special release conditions contained in the pre-sentence report shall remain in place.

[30]     The order for disqualification from holding or obtaining a driver's licence for

14 months remains in force at present, but I adjourn for further consideration the question of whether the order should be quashed and replaced by a community-based sentence.

[31]     Ms Pecotic shall have until Friday, 24 March 2017 to file and serve a pro forma application under s 94 of the LTA for the substitution of a community-based sentence and submissions in support.   The respondent shall have until 31 March

2017 to file and serve submissions in response, and the matter will then be addressed on the papers.  I do not require a fresh report to be obtained, at this stage at least. Unless the circumstances have changed since 6 December 2016, such that Mr Collett can no longer comply with a community-based sentence, I will rely on the pre- sentence reports filed in the District Court.

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

Toogood J