Dew v Police - [2012] NZHC 2915

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-32 [2012] NZHC 2915

BETWEEN COREY MICHAEL DEW Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 6 November 2012

Counsel: JC Hannam for Appellant
SA Law for Respondent

Judgment: 6 November 2012

JUDGMENT OF BREWER J

SOLICITORS
Hannam & Co Lawyers Ltd (New Plymouth) for Appellant
C&M Legal (New Plymouth) for Respondent

DEW V POLICE HC NWP CRI-2012-443-32 [6 November 2012]

Introduction

[1] By notice of appeal against sentence dated 17 August 2012, Mr Dew appeals against a sentence handed down against him in the District Court at New Plymouth on 13 August 2012 by Judge AC Roberts. The sentence was nine months’ imprisonment. Mr Dew’s argument is that this sentence was manifestly excessive. Mr Hannam, who has argued the case this morning with pragmatism and a clear view of the issues, has submitted that a starting point of three months’ imprisonment should have been adopted by the District Court Judge taking into account the recent
judgment of Collins J in Iwikau v Police.[1] In effect, Mr Hannam is arguing that

Mr Dew should be released from prison earlier than would be the case if the decision of Judge Roberts were to stand.

[1] Iwikau v Police [2012] NZHC 2027.

[2] Mr Dew pleaded guilty to a charge that on 7 May 2012 he drove a motor vehicle on a road while suspended from driving, he having previously been convicted on at least three occasions.

Facts

[3] The facts are that on 6 March 2012, Mr Dew was suspended from driving for a period of three months having accumulated the required number of demerit points. Subsequently he was issued with a further suspension notice. That would have taken the overall period of suspension through until 7 August 2012.

[4] While subject to those suspension orders, Mr Dew was on 7 May 2012 stopped while driving. He indicated that he was on his way home after visiting a friend.

District Court

[5] The District Court Judge’s view of Mr Dew’s case can be summarised by the

following two paragraphs of his judgment:[2]
[2] Police v Dew DC New Plymouth CRI-2012-012-001603, 13 August 2012.

[3] You have a shocking history of non-compliance. Two convictions of driving whilst prohibited in 2000, three in 2001, one in 2003, one of unlawfully failing to comply with a prohibition in 2004, driving while disqualified 2004, 2005, six of failing to comply with a prohibition in 2005, two of driving while disqualified in 2006, one driving while disqualified
2009 and one driving while disqualified in 2010. On that last occasion special circumstances were found and as a consequence no disqualification
was imposed. You were sentenced then to community work, 250 hours, and as Ms Dallison says you completed that sentence without incident.

...

[13] I am intending to imprison you. I do not consider that any other sentence will properly address the sentencing principles of holding you accountable, denouncing your conduct, deterring you and protecting the public.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dew v Police

Details

AGLC: Dew v Police [2012] NZHC 2915
Case: [2012] NZHC 2915
Decision Date: 6 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Dew v Police was heard before Brewer J. Mr Dew appealed against his sentence of nine months’ imprisonment handed down by the District Court at New Plymouth on 13 August 2012. Dew argued that the sentence was manifestly excessive and should be reduced, taking into account his prior convictions and the recent judgment of Collins J in Iwikau v Police. The central issue was whether the District Court Judge had erred in imposing a sentence that fell outside the range available to him.

The court examined the statutory provisions under the Land Transport Act 1998 and relevant case law to determine if the District Court Judge had made an error. The District Court Judge had adopted a starting point of 10 months’ imprisonment, increased by two months to account for Dew’s previous convictions, and then reduced to nine months’ imprisonment after credit for the plea of guilty. Mr Hannam, for the appellant, argued that a starting point of three months would have been appropriate, referencing the Iwikau decision. Conversely, the respondent argued that the cases of Te Puia v Police and Peterson v Police were more applicable, as they involved similar facts and higher starting points.

Brewer J concluded that the District Court Judge’s sentence was within the range available to him and took into account the personal circumstances of the appellant. The decision of the District Court was upheld as there was no error that would render the sentence vulnerable to adjustment. Consequently, the appeal was dismissed.

Orders