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.  That last mentioned consideration is significant. Court orders are to be obeyed.  Disqualifications, prohibitions are the only basis on which the authorities can have people such as you off the carriageway.

[6]      His  Honour took  into  account  that  Mr Dew had  amassed  63  convictions within  a  14 year  period;  that  he  had  numerous  breaches  of  community-based sentences and other orders; and that 17 of his convictions were for driving while he was either prohibited or disqualified.

Discussion

[7]      My jurisdiction on an appeal against sentence is not discretionary.  It is not for me to sentence afresh and to impose whatever sentence I would have calculated on my own view of the facts and the law.  It is only if I were to find that the District Court Judge had fallen into an error which resulted in him imposing a sentence outside the range available to him that I would be justified in interfering.  In other words, I would have to hold that the sentence imposed by the District Court Judge was manifestly excessive.

[8]      I note that s 32(1)(c) of the Land Transport Act 1998 makes it an offence to drive with a suspended or revoked driver licence.  A first or second offender is liable to  three  months’ imprisonment  or  a  fine  of  up  to  $4,500  and  the  Court  must disqualify that person from driving for six months.[3]   A third or subsequent offender

commits an indictable offence and is liable on conviction to two years’ imprisonment

or a fine of $6,000, and the Court must order their disqualification from driving for one year.[4]

[3] Land Transport Act 1998, s 32(3).

[4] Ibid, s 32(4).

[9]      In this case, the District Court Judge adopted a starting point of 10 months’ imprisonment.  He commented that this was a point beneath the median mark now available.  The Judge increased that starting point by two months to take account of the  appellant’s  previous  convictions.     His  Honour  commented  that  that  was indulgent.  There was then a credit for the plea of guilty, which brought the sentence down to nine months’ imprisonment.

[10]     Mr Hannam for the appellant simply refers me to the decision of Collins J in Iwikau.   Mr Hannam points out that in that decision his Honour referred to three recent cases which he found helpful in considering what should be the appropriate range.  In Iwikau, Collins J concluded that an end point of three months would have been appropriate.  I infer it is on that basis, and having regard to his client’s previous record, that Mr Hannam submits now that a starting point in Mr Dew’s case of three months’ imprisonment would have been appropriate.

[11]     Ms Law for the respondent seeks to distinguish Iwikau.  Ms Law points out that in that case his Honour was concerned with a lead charge of burglary, did not express a view as to an appropriate starting point for the driving while disqualified charge,  and  had  to  overall  have  regard  to  the  totality  principle.    Instead,  the

respondent submits that the decisions of Miller J in Te Puia v Police[5] and Duffy J in

[5] Te Puia v Police HC Palmerston North CRI-2011-454-4, 22 March 2011.

Peterson v Police[6]  are more apt.  That is because of the factual basis in both those cases and the adoption by the Judges of starting points more in keeping with that adopted by the District Court Judge in this case.   The respondent also makes the point that against a background of 76 convictions over the previous nine years,

Duffy J uplifted the starting point in the case of Mr Peterson by seven months.

Decision

[6] Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009.

[12]     Having considered Mr Dew’s case against the background of the statutory offence provisions and the case law, I have concluded that the District Court Judge was not in error.  It might be that another Judge might have reached a slightly lesser position but overall it seems to me to be clear that the sentence was within the range available to him.

[13]     It is clear that the District Court Judge took into account those matters which were personal to Mr Dew in calculating the starting point, and no submission is made to me to the contrary.

[14]     The decisions of Te Puia v Police and Peterson v Police do seem to me to provide persuasive examples of sentencing in broadly similar cases.  In both of those cases,  a  starting  point  of  10 months’  imprisonment  was  not  considered  to  be manifestly excessive.   Indeed, in my view, Judge Roberts was lenient in imposing merely a two months uplift to take account of Mr Dew’s appalling record.   Of course, Mr Dew’s case was not helped by the fact that he had two overlapping periods of suspension current at the time of his latest offending.

[15]     It  follows  that  I  can  discern  no  error  that  would  render  the  sentence vulnerable to adjustment on this appeal and the appeal is dismissed accordingly.

Brewer J