Dougherty v Police - [2015] NZHC 1777

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-59 [2015] NZHC 1777

BETWEEN
JOHN JAMES DOUGHERTY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2015

Appearances:

R Wood and R McGuire for Appellant
D L Elsmore for Respondent

Judgment:

30 July 2015

JUDGMENT OF MANDER J

[1] Mr John Dougherty was sentenced to two years, five months and 28 days imprisonment on two charges of driving whilst disqualified, being a third or subsequent offence, careless operation of a motor vehicle causing injury, excess breath alcohol, and breaches of bail and community work.1 He appeals his sentence on the basis the sentencing Judge failed to take into account the totality principle thereby resulting in a final sentence that was manifestly excessive.

Background

[2] In February 2014, Mr Dougherty lost control of his vehicle. It crashed into a culvert and resulted in one of his passengers being injured. He fled the scene. At the time, Mr Dougherty was subject to an order disqualifying him from driving, which had been imposed in respect of an earlier charge of driving whilst disqualified, in
September the previous year.

1 Police v Dougherty [2015] NZDC 10299.

DOUGHERTY v NEW ZEALAND POLICE [2015] NZHC 1777 [30 July 2015]

[3] In March 2014, Mr Dougherty was stopped at a checkpoint. He was still disqualified. Mr Dougherty had a breath alcohol level of 699 micrograms of alcohol per litre of breath.

The District Court sentence

[4] In addition to the driving-related charges, Mr Dougherty was also for sentence on a charge of breach of community work and a further charge of failing to answer his bail. Of prime concern to the sentencing Judge were the disqualified driving charges. Mr Dougherty had 10 previous convictions, in addition to two previous driving whilst disqualified matters, for which he had appeared in the Youth Court. Aggravating that history was a previous conviction for driving with excess breath alcohol in 2013, and convictions for dangerous and reckless driving. Those convictions were part of a wider history of criminal offending, including convictions for violence and dishonesty.

[5] No issue is taken with Judge Couch’s identification of the aggravating features of Mr Dougherty’s offending, nor that the Court was entitled to approach the sentencing exercise on a cumulative basis. Before embarking on that exercise, Judge Couch explicitly recognised that in taking that approach he needed to consider the “totality of the sentences”.2 Mr Dougherty’s complaint is that, having recognised that consideration, the sentencing Judge ultimately failed to assess the cumulative effect of the sentences against that principle.

[6] Judge Couch took a starting point in relation to each of the charges of disqualified driving (being Mr Dougherty’s eleventh and twelfth convictions) of 18 months imprisonment. In doing so, he observed that he must impose a penalty near to the maximum prescribed for an offence where the offending is near to the most serious of cases for which the penalty is prescribed, recognising as he did that, while Mr Dougherty’s offending was close, it…

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 Dougherty v Police

Details

AGLC: Dougherty v Police [2015] NZHC 1777
Case: [2015] NZHC 1777
Decision Date: 30 July 2015

CaseChat Overview and Summary

John Dougherty appeals his sentence of two years, five months, and 28 days imprisonment imposed for driving whilst disqualified, careless operation of a motor vehicle causing injury, excess breath alcohol, and breaches of bail and community work. The District Court imposed concurrent sentences for the disqualified driving charges, and additional sentences for the other charges. Dougherty argues that the cumulative effect of the sentences was not appropriately adjusted for under the totality principle, resulting in a sentence that was manifestly excessive. The Crown argues that the sentence was within the range available to the sentencing Court and did not offend against the totality principle.

The court considered whether the cumulative sentences resulted in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. The court found that the individual sentences imposed were not proximate to the maximum sentence for each charge, and their combined effect did not result in anywhere near the maximum cumulative sentence. The court was satisfied that the ultimate sentence imposed did not breach the totality principle.

The appeal is dismissed, and the original sentence is upheld. The court found that the sentencing Court's approach resulted in a stern response to Dougherty's recidivism, but the ultimate sentence imposed did not breach the totality principle. The court considered the circumstances of Dougherty's case, including his history of criminal offending, and found that the sentence imposed was appropriate.

Orders