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 was not right at the top of the scale.3

[7]      It is not contested that Judge Couch afforded an appropriate discount for the entry of guilty pleas.  Similarly, the additional one and a half months imprisonment

2 At [9].

3      Sentencing Act 2002, s 8(d).

to mark Mr Dougherty’s breach of bail is not the subject of complaint.  Concurrent sentences were imposed for the breach of community work and in respect of the aggravating offences accompanying the disqualified driving, namely careless operation of a motor vehicle causing injury arising from the February incident, and the breath alcohol charge following Mr Dougherty’s apprehension the following month.

[8]      The end result was a sentence of one year and three months imprisonment on the charge of driving whilst disqualified, being a third or subsequent offence for the February incident, and a further cumulative term of imprisonment of one year, one month and 14 days for the second charge of driving whilst disqualified.  When added to the one and a half months imprisonment for the breach of bail, the effective total sentence imposed was two years, five months and 28 days.

The appeal

[9]      Mr Dougherty acknowledges that the discrete sentences imposed in respect of each of the driving whilst disqualified charges, representing his eleventh and twelfth convictions for that type of offending, were of a length available to the sentencing Judge.  The focus of his challenge was on the cumulative effect of those sentences without, it was submitted, adjustment for the principle of totality.   Mr Dougherty submitted that, while Judge Couch was entitled to impose cumulative sentences, he had failed to take into account the overall effect of combining the two sentences. This had resulted in a final sentence which was manifestly excessive.

[10]     Mr Dougherty submitted that, having regard to the guidance available from relevant authorities, a starting point in the range of 16 to 20 months is indicated as appropriate where an offender with a comparable history of disqualified driving  is sentenced for two driving whilst disqualified charges, being a third or subsequent offence.  It was acknowledged that the aggravating features of careless driving and drink-driving warranted some uplift from that starting point.  However, it was argued the total period of imprisonment of some two years and six months was beyond the range available to the sentencing Court.

[11]     Mr Dougherty submitted an 18 month starting point should have been taken for the two driving whilst disqualified charges, with a further uplift of four months to recognise the aggravating features of that offending, including driving with excess breath alcohol and careless driving causing injury.   That would have resulted in a total starting point of 22 months before discount for guilty pleas.

[12]     Taking into account a further uplift for the breach of bail, Mr Dougherty submitted he would still have been eligible for home detention, and that sentence could appropriately be substituted with some adjustment to recognise the period that he has already spent in custody.

The Crown’s position

[13]     The Crown submitted there was no error in the sentence imposed requiring a different sentence to be substituted.  In the absence of the sentence being manifestly excessive, the appeal should be dismissed.4

[14]     The Crown emphasised the aggravating features that attached to each of the episodes  of  disqualified  driving.    In  relation  to  the  February  2014  offending, Mr Dougherty crashed his vehicle, causing a deep cut under the eye to one of his passengers.  In respect of the March driving whilst disqualified, Mr Dougherty was driving with an excess breath alcohol level.   The circumstances of this offending were to be considered against the relatively recent background of similar convictions for disqualified driving.

[15]     The Crown submitted that no error could be identified with Judge Couch’s identification of the aggravating features relevant both to the circumstances of the offending and personal to Mr Dougherty.   The sentencing Judge had explicitly reminded himself of the need to take into account the totality of the offending to determine whether the ultimate sentence was appropriate.  The sentencing Court had afforded appropriate discounts for the guilty pleas, and Judge Couch’s starting point of 18 months for each of the charges was within range for eleventh and twelfth

convictions for disqualified driving.

4      Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279.

[16]     The  Crown  submitted  overall  the  sentence  imposed,  while  stern,  was available to the sentencing Court, particularly having regard to the serious and separate nature of the offences, each of which had accompanying aggravating features.  It was emphasised that Mr Dougherty had recent convictions for driving whilst disqualified, including three entered in 2013, and has already served shorter periods of imprisonment which had not proved sufficient deterrence.

[17]     By reference to various authorities, which I will review shortly, the Crown submitted the cumulative sentences did not offend against the totality principle, particularly when set against the failure by Mr Dougherty to respond to shorter periods of imprisonment and other community-based sentences.

The totality principle

[18]     Section 85 of the Sentencing Act 2002 provides as follows:

85       Court to consider totality of offending

…

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences   is   not   disproportionately   long,   the   imposition   of cumulative sentences would result in a series of short sentences that individually  fail  to  reflect  the  seriousness  of  each  offence,  then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

…

[19]     It  is  not  disputed  that  Judge  Couch  was  entitled  to  impose  cumulative sentences.   The complaint is that the overall end sentence did not appropriately reflect the total criminality of the offending, and that the sentencing Judge had failed to stand back and make an appropriate adjustment for the cumulative effect of the combined sentences to ensure the total period of imprisonment was not wholly out of proportion to the gravity of the overall offending.  The Crown submitted that such a consideration was intrinsic to the setting of the sentences for each of the episodes of disqualified driving.

Decision

[20]     The essential task of the appeal Court is to focus on whether the end sentence is one which was available to the sentencing Court in the exercise of its discretion, rather than to focus on the method used to reach that final sentence.  As both parties have acknowledged in their submissions, it is not necessary that the total sentence be arrived at in any particular way.5   Whether a sentence is manifestly excessive is to be examined in terms of the final sentence imposed, rather than the process by which the sentence is reached.6

[21]     Mr Dougherty referred to a number of authorities as examples of where lesser sentences were imposed on recidivist disqualified drivers for further offences of driving whilst disqualified, being a third or subsequent offence.   It was submitted these indicated the sentencing Judge had erred in the present case.

[22]     In Kerr v Police, the appellant was sentenced on a twelfth driving whilst disqualified charge and a third excess breath alcohol offence, together with a charge of careless driving resulting in a collision with another vehicle.7   A sentence of 14 months imprisonment was imposed cumulatively on an outstanding 10 month sentence which the appellant was recalled to complete.  The total effective sentence of 24 months was described as stern by the appeal Court, but was not considered to

offend against the totality principle or be manifestly excessive.

[23]     Other examples  cited  included  where a starting point  of 16  months  was considered to be within range for two driving whilst disqualified charges, which were the appellant’s eleventh and twelfth offences, with no aggravating features.8

Another example was where a 20 month starting point was upheld in respect of an appellant  sentenced  for  his  eleventh  and  twelfth  charges  of  driving  whilst disqualified.  This Court described an end sentence of 15 months imprisonment for

the two charges to be well within range.9

5      R v Williams CA91/00, 31 May 2001; R v Barker CA57/01, 30 July 2001; R v MacCulloch

[2005] 2 NZLR 665 (CA).

6      Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

7      Kerr v Police HC Christchurch CRI-2011-409-58, 3 August 2011.

8      Kingi v Police HC Auckland CRI-2009-404-399, 19 February 2010.

9      Maxwell v Police [2013] NZHC 3172.

[24]     The difficulty for Mr Dougherty in relying on these cases is that the effect of the appellate decisions cited is limited to confirmation that the sentences imposed in those cases were within the range available to the sentencing Court.  The submission made on behalf of Mr Dougherty is that the authorities indicate a ceiling of no more than two years for this type of offending.   However, each case is required to be considered in relation to its own particular circumstances.   The range of sentence available to the sentencing Judge in the exercise of his or her discretion must also be considered against the statutory maximum and where the offending sits along the continuum of seriousness.

[25]     The Crown relies on a judgment of the Court of Appeal relating to a decision of this Court, reducing a sentence imposed in respect of two sets of driving whilst disqualified, and driving with excess breath or blood alcohol charges, arising from separate driving incidents.10    In R v McQuillan, the offender was sentenced in the District Court to two cumulative terms of 12 months imprisonment.  On appeal to this  Court,  Panckhurst J  reduced  the  sentence,  after  applying  the  overarching principle of totality, on the basis the cumulative effect of the two sentences did not reflect the gravity of the offending.11   The sentence was reduced to one of 20 months imprisonment.

[26]     As a result of jurisdictional issues, it was necessary for the High Court to recall its judgment and for the appeal to be determined by the Court of Appeal. Applying its earlier decision of R v Binnie, the Court of Appeal considered as a matter of principle the appellant was entitled to the benefit of his success in the High Court, where the matter had been fully argued.12   His appeal was therefore allowed and the High Court judgment effectively confirmed.  However, the Court of Appeal went on to consider the substantive issues arising on the appeal.

[27]     The Court of Appeal identified the issue as being whether in the particular circumstances the District Court’s imposition of cumulative sentences of 12 months imprisonment  resulted  in  a  manifestly  excessive  sentence.     Contrary  to  the

conclusion of the High Court, the Court of Appeal concluded that it had not.  After

10     R v McQuillan CA129/04, 12 August 2004.

11     McQuillan v Police HC Christchurch CRI-2004-409-9, 11 March 2004.

12     R v Binnie CA261/99, 6 September 1999, cited in R v McQuillan, above n10, at [16].

reference to the guidance provided by Clotworthy v Police regarding recidivist offenders, the Court of Appeal observed that sentencing is not an exact science, and that the circumstances of offenders and offending varied widely.  There remains a need for the normal exercise of judgment by the sentencing Judge in deciding on the appropriate sentence. The Court of Appeal then stated:13

It was also open for the Judge to deal with the gravity of the matter, as he did, by imposing a cumulative sentence for the Christchurch charges.  The overall sentence reflected the failure of previous shorter terms of imprisonment for drink-driving offences to bring home to the appellant his responsibilities, and the need to deter him from further repetition of his offending in the interests of public safety.   In the context in which the Christchurch offending took place in succession to that in Cromwell, we consider that the overall term of imprisonment imposed by the District Court is not disproportionate to the gravity of the overall offending.   The requirements of s 85(2) of the Sentencing Act are accordingly met.

[28]     Whilst R v McQuillan involved two episodes of drink-driving combined with disqualified driving, whereas the present case involves only one such episode, I consider the careless use causing injury charge as a comparable aggravating feature, involving as it did the crashing of the vehicle and the injury to the passenger.  Both episodes involved disobedience of Court orders, as well as disregard for public safety, features common to the circumstances in R v McQuillan.

[29]     The individual sentences of 15 and 13 months imposed respectively for the disqualified driving charges could not be considered as being outside the available range.   The only issue that arises is whether some adjustment to their cumulative effect was required to give effect to the totality principle.   The Court of Appeal’s approach in R v McQuillan is notable for the fact that it did not consider it necessary to make any adjustment to the total sentence arrived at as a result of the combination of the two separate terms of imprisonment.   The Court of Appeal considered the overall term of imprisonment imposed was not disproportionate to the gravity of the overall offending.

[30]     No  complaint  is  made  in  Mr  Dougherty’s  case  of  the  imposition  of  an additional one month and 14 days for his failure to answer bail. Arguably, the breach

of community work could have also resulted in the imposition of a short cumulative

13 At [24].

term of imprisonment.   The disqualified driving charges marked Mr Dougherty’s eleventh and twelfth episodes of driving whilst disqualified. Each was aggravated by related circumstances, represented by discrete charges marked by concurrent sentences.   Importantly, in my view, the individual sentences imposed were not proximate to the maximum sentence of two years imprisonment for each charge, and their combined effect did not result in anywhere near the maximum cumulative sentence.

[31]     In the circumstances of Mr Dougherty’s case, I am satisfied the combined effect of the individual sentences did not result in the effective sentence of two years, five months and 28 days imprisonment, being wholly out of proportion to the gravity of the overall offending, and no adjustment is required.   The sentencing Court’s approach  resulted  in  a  stern  response  to  Mr  Dougherty’s  recidivism,  but  I  am satisfied the ultimate sentence imposed did not breach the totality principle. Accordingly, the appeal must fail.

Result

[32]     The appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch