Daly v Police
[2017] NZHC 2225
•14 September 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2017-488-26 [2017] NZHC 2225
BETWEEN STEPHEN WILLIAM DALY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 September 2017 Appearances:
T Shepherd for the Appellant
K J MacNeil for the RespondentJudgment:
14 September 2017
ORAL JUDGMENT OF MUIR J
Counsel/Solicitors:
T Shepherd, Barrister, Kaikohe
K J MacNeil, Crown Solicitor, Whangarei
DALY v NEW ZEALAND POLICE [2017] NZHC 2225 [14 September 2017]
Introduction
[1] The appellant, Stephen Daly, was convicted on one charge of dangerous driving following a Judge-alone trial. On 9 June 2017, Judge D J Sharp sentenced him to six months’ community detention and 12 months’ supervision, and disqualified him from holding a driver’s license for six months.
[2] Mr Daly now appeals against that sentence on the grounds that it is manifestly excessive.
Background
The offending
[3] On the morning of 2 May 2016, Mr Daly was driving his motor vehicle on State Highway 14 towards Dargaville. The speed limit was 100 km/h. He passed three motor vehicles in a single manoeuvre approaching a blind corner. He was still on the wrong side of the road as he drove into the approaching corner, which had an advisory speed limit sign of 65 km/h. Police were called and Mr Daly was stopped in Dargaville.
[4] A scene examination by police showed that Mr Daly’s manner of driving would have resulted in death or serious injury had a driver been approaching in the other direction, as no-one would have been able to take the required evasive action.
[5] Mr Daly was charged with dangerous driving as a result.1
District Court decisions
[6] On 31 January 2017, the matter was set down for a Judge-alone trial before
Judge Davis in the Dargaville District Court.2 Mr Daly did not appear in Court, nor
1 Land Transport Act 1998, s 35(1)(b).
2 Police v Daly [2017] NZDC 1780.
was he represented by counsel. Judge Davis decided to proceed in Mr Daly’s absence under s 122 of the Criminal Procedure Act 2011, as he was satisfied that Mr Daly had no reasonable excuse for his non-attendance. Having heard from three Crown witnesses, Judge Davis was satisfied that each of the elements of the charge had been proven beyond reasonable doubt and entered a conviction for dangerous driving.
[7] On 18 May 2017, a second Judge-alone trial was conducted in the Dargaville District Court, this time before Judge Sharp.3 This time Mr Daly appeared in Court, represented by counsel Mr Shepherd who also appears on the appeal. After considering the evidence (the Crown called three witnesses; Mr Daly himself gave evidence; and the defence called one additional witness), Judge Sharp found the charge to be proven.
[8] On 9 June 2017, Mr Daly appeared for sentence in the Kaikohe District Court before Judge Sharp.4 The Judge referred to the risk caused by Mr Daly’s dangerous driving, namely collision with an oncoming vehicle potentially resulting in serious injury or death, as an aggravating feature of the offending. He also noted the speed at which Mr Daly was driving and the number of vehicles that he had passed as further aggravating features. He did not recognise any mitigating features of the offending. The Judge adopted a starting point of nine months’ imprisonment, uplifting this to 12 months to reflect Mr Daly’s previous convictions.
[9] Judge Sharp then turned to personal mitigating factors, noting that Mr Daly was the main provider for his seven children, and had his own business which provided employment for others. The Judge considered Mr Daly to have characteristics that were “pro-social and entirely to [his] credit”. Although his previous history would, he said, have merited a sentence of imprisonment, the Judge declined to impose a custodial sentence primarily it seems to allow Mr Daly to continue in work. Instead, he sentenced Mr Daly to six months’ community detention and 12 months’ supervision (which included carrying out any required counselling, treatment or programmes). Mr
Daly was also disqualified from driving.
3 Police v Daly [2017] NZDC 10392. The circumstances of that are not entirely apparent to me but clearly there was an application for a second trial which was successful.
4 Police v Daly [2017] NZDC 12340.
[10] The Judge closed, however, with the following comments:5
I may have made an error give (sic) the maximum jail term is 3 months imprisonment but that is what (sic) the degree of culpability that I saw in your driving. You would have got three months if I had to give you an immediate custodial sentence. I can only give you the maximum term but your history and the circumstances here get you into that category. So you are right about that but you are fortunate you are not going to jail today. If you come back with other driving related matters you run a serious risk of that happening.
Personal circumstances of Mr Daly
[11] Mr Daly lives with his partner and their four children. He has three other children who do not live with him. He operates his own excavation business.
[12] He has 51 previous convictions, all of a relatively minor nature. However, his history relevantly includes convictions for exceeding the speed limit; driving while his license was suspended or revoked; careless operation of a motor vehicle; dangerous and reckless driving.
[13] The Provision of Advice to the Courts (PAC) report states that Mr Daly demonstrates a “strong sense of entitlement”. He said to the author, “I believed I wasn’t breaking the law” and disputed the police summary of facts. However, he acknowledged that “a defensive driving course should help [him] better understand the dangerous manner of driving”. The author considered that he tended to shift the blame for his actions and minimise his behaviour, and that he lacked remorse. Mr Daly does however acknowledge that his children are a strong motivator for him to lead a crime-free lifestyle, as he wishes to be a good role model for them.
[14] The author of the PAC report recommended imprisonment, but also suggested supervision and community or home detention as alternative sentencing options.
5 At [21].
Submissions on appeal
[15] Mr Daly now appeals his sentence on the ground that the Judge made an error of principle by adopting a starting point higher than the statutory maximum for the offence for which Mr Daly was convicted. Mr Shepherd submits that the Judge’s error in approaching the sentence from an incorrect starting point, coupled with a strong emphasis on Mr Daly’s previous convictions and inadequate consideration of the need for rehabilitation, resulted in the wrong sentence being imposed.
[16] The Crown on the other hand says that the sentence was not manifestly excessive, noting that an uplift was appropriate to recognise Mr Daly’s previous convictions and that community detention was necessary to meet the punitive aspect of the sentence.
Approach on appeal
[17] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the 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.
[18] In any other case, the Court must dismiss the appeal.6
[19] Despite s 250 making no express reference to the “manifestly excessive” requirement which featured in previous cases, this principle is “well-engrained” in the court’s approach to sentence appeals.7 The High Court will not interfere 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.8
6 Criminal Procedure Act 2011, s 250(3).
7 At [33], [35].
8 Ripia v R [2011] NZCA 101 at [15].
Analysis
Error
[20] The penalty for the offence of dangerous driving is expressed in s 35(2) of the
Land Transport Act 1998 in terms:
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
[21] Judge Sharp used the following wording in setting a starting point:9
I do consider that this driving merits a starting point of imprisonment. I would a (sic) starting point as being one of nine months’ imprisonment.
[22] The starting point he adopted was therefore plainly above the statutory maximum. The Judge then went on to uplift the starting point by three months to reflect Mr Daly’s previous convictions, reaching an adjusted starting point of 12 months’ imprisonment. Given that the Judge expressed the starting point in the language of imprisonment, and that the term of imprisonment was beyond the statutory maximum, I accept Mr Shepherd’s submission that the Judge made an error of principle.
[23] Such error was, however, acknowledged in the Judge’s concluding remarks and must be seen in the context that the end sentence of six months’ community detention and 12 months’ supervision was one open to the Judge. Both are community-based sentences, ranking lower than imprisonment in the hierarchy of sentences set out in s 10A(2) of the Sentencing Act 2002. As a matter of logic they fall below the statutory maximum of “imprisonment for a term not exceeding three months”, although they may be imposed for longer terms. Sections 45 and 69B of the Sentencing Act make it
clear that community detention and supervision are available where the offender is
9 At [4].
convicted of an offence punishable by imprisonment, as Mr Daly was.10 A sentence of community detention and supervision is a permitted combination.11
[24] The error therefore is only in the Judge’s initial identification of starting point. There was an error nonetheless and the appropriate appellate response is to consider whether a different sentence should be imposed. To determine this, I will undertake the sentencing exercise afresh.
A different sentence?
[25] As Mallon J recognised in Harding v Police:12
To assess the culpability of offending of this kind, and recognising that all such offending will involve danger, what is relevant is the degree of risk that it involved. Some instances of dangerous driving will involve a greater risk to the public of injury or death than others.
[26] I do not accept Mr Shepherd’s submission that Mr Daly’s culpability was “low to medium”, as set out in his written submissions. Indeed, in his submissions today, he appropriately revised that to “medium to high”. The initial submission was advanced on the basis that this was a single overtaking manoeuvre at a time when there was no oncoming traffic. However, that overlooks the fact that after overtaking three vehicles he drove around at least part of a blind corner (in a 100 km/h zone) on the wrong side of the road, in circumstances where any oncoming vehicle would not have been able to take the required evasive action and death or serious injury would likely have resulted. He and the public are fortunate that there was no such oncoming traffic, which he could not have known as he approached the corner. I agree with the District Court Judge that there are no relevant mitigating features of Mr Daly’s offending.
[27] As for his personal circumstances, Mr Daly has numerous convictions for driving-related offences, dating between 2000 and 2015 including two previous convictions for each of careless, dangerous and reckless driving. He also has
convictions for driving while disqualified, failure to stop and speeding. His driving
10 I also note that the minimum period for which supervision may be imposed is six months; see
Sentencing Act, s 45(2).
11 Sentencing Act, ss 19(4) and 19(6).
12 Harding v Police HC Wellington CRI-2010-485-6, 9 March 2010 at [11].
record displays, as the pre-sentence report indicated, an elevated sense of entitlement and a wholesale disregard of the safety of other road users. In sentencing him the Court was entitled to place at the forefront of its purposes a requirement to hold him accountable and to denounce and deter the offending. 13
[28] In setting the sentences imposed his Honour did not refer to any authorities; nor has the Crown referred me to any in its submissions. Mr Shepherd cites one case, that of Foulds v Police.14 My own researches have, however, identified a number of broadly analogous authorities. In each there are difficulties in separately identifying what were considered aggravating and mitigating features of the offending and those personal to the offender, which I acknowledge at the outset.
[29] In Foulds v Police, the defendant had been sentenced in the District Court to three months’ imprisonment and 18 months’ disqualification on one charge of dangerous driving. He had pulled out to pass other vehicles at speed shortly before the brow of a hill, in a built-up area. Laurenson J in the High Court agreed that imprisonment was necessary, given the gravity of the offending and his history of previous convictions. However, he considered that three months’ imprisonment was manifestly excessive:
Despite this I consider that to impose the maximum sentence in even these circumstances cannot be said to be correct in principle for the simple reason that by doing so there is no room left to recognise worse cases. I accordingly find that the appeal as to sentence should be allowed.
[30] He reduced the sentence of imprisonment to two months.
[31] In Currie v Police,15 Mr Currie made a dangerous overtaking manoeuvre and was convicted of one charge of dangerous driving as a result. He overtook several vehicles that were travelling at 100 km/h, crossing a solid yellow line to the wrong side of the road in doing so. Later he did so again, overtaking multiple vehicles on a blind corner. He was disqualified from driving for six months and ordered to pay a
fine of $800 as well as court costs. His appeal against sentence was unsuccessful:
13 Sentencing Act, ss 7(1)(a), (e) and (f).
14 Foulds v Police HC Auckland A32/99, 24 March 1999.
15 Currie v Police HC Hamilton CRI-2005-419-140, 2 December 2005.
Nicholson J commented that “[the] $800 fine is consistent with a sentence passed for such first time dangerous driving offending.”16
[32] In Zois v Police,17 the defendant had pulled out to overtake a vehicle as it approached the brow of a hill. In doing so he went entirely onto the opposing lane. An oncoming vehicle had to take evasive action, pulling over all the way to the side of the road. The defendant braked heavily and swerved back behind the vehicle he was attempting to overtake, fishtailing and going the full width of the lane onto the lefthand shoulder of the road. He was convicted of one charge of dangerous driving, disqualified from driving for six months, and ordered to pay a fine of $750 and court costs. His appeal against sentence was dismissed, with Mackenzie J describing his sentence as “well within the permissible range for the serious offence of dangerous driving”.18
[33] In Raihi v Police, the defendant had raced another vehicle on a motorway, travelling in close proximity to it at speeds of around 150 km/h.19 Eventually he hit a barrier resulting in injury to a passenger. He was disqualified from driving for thirteen months and fined $870. On appeal against sentence, Ronald Young J noted that the offending was self-evidently dangerous to other vehicles, and the defendant had one previous conviction relating to dangerous speed. The 13 month disqualification was therefore well within the range available to the Judge.
[34] These cases demonstrate that a fine coupled with at least the minimum statutory period of disqualification is a common penalty for such offending where the offender has no similar previous convictions or perhaps only one such conviction. A longer period of disqualification may be warranted in more serious cases as in Raihi v Police. However, in a case where the defendant has a long history of similar convictions, for which he has previously received lenient sentences, imprisonment may be warranted. That was the case in Foulds v Police, where the offending was also
substantially similar to the present case.
16 At [23].
17 Zois v Police HC Rotorua CRI-2006-463-100, 24 April 2007.
18 At [15].
19 Raihi v Police HC Wellington CRI-2008-485-136, 9 December 2008.
[35] In the circumstances, I consider that a sentence of imprisonment was within the permissible range of sentencing options available to the Judge particularly in light of Mr Daly’s previous conviction history and his attitude towards the offending. Against that background Mr Daly was, in my view, fortunate to receive a community based sentence.
[36] Section 69C(1) of the Act provides the following guidelines in imposing community detention:
69C Guidance on use of sentence of community detention
(1) A court may impose a sentence of community detention if the court is satisfied—
(a) that a sentence of community detention—
(i) would reduce the likelihood of further offending by restricting the offender’s movements during specified periods, including, but not limited to, offending of a particular type or at a particular time; or
(ii) would achieve 1 or more of the purposes set out in section 7(1)(a), (b), (e), or (f); and
(b) that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.
[37] In this case the sentence of community detention was appropriate in light of the need for accountability, denunciation and deterrence, as required by s 7(1)(a), (e) and (f) of the Sentencing Act. It was in my view appropriate in light of the need for accountability, denunciation and deterrence.
[38] Section 46 provides guidance on imposing a sentence of supervision:
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[39] In this case the sentence of supervision was directed to Mr Daly’s observation that he may benefit from a defensive driving course, as it required him to complete such counselling or programmes as a probation officer may direct. It was therefore
intended to reduce the likelihood of further offending, and the requirements of s 46 were made out.
[40] It follows that I do not consider that a sentence of six months’ community detention and 12 months’ supervision could be described as manifestly excessive. Despite the Judge’s error in initially adopting a starting point of nine months’ imprisonment, he arrived at an end sentence which was, in my view, well within the appropriate range.
[41] The further outcome of six months’ disqualification from driving was mandatory in terms of s 35(2)(b) of the Land Transport Act, subject to the discretion of the court in s 81 of the Land Transport Act to order otherwise if satisfied that there are special reasons for doing so. I consider that there were no such special reasons in this case. Indeed Mr Shepherd does not contend otherwise.
Result
[42] I therefore dismiss the appeal.
Muir J
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