Drinkwater v Police

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2013-443-12 [2013] NZHC 1036

NIGEL JOHN DRINKWATER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 May 2013

Counsel:         K R Pascoe for Accused

S A Law for Crown

Judgment:      7 May 2013

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr Drinkwater pleaded guilty to:

(a)       driving while disqualified (having been previously convicted on at least three occasions of such an offence);

(b)      breach of a protection order; and

(c)       possession of an offensive weapon.

DRINKWATER V NEW ZEALAND POLICE HC NWP CRI 2013-443-12 [7 May 2013]

[2]      He was sentenced to a total of 15 months’ imprisonment.  The Judge refused to impose a sentence of home detention.  Further, he disqualified the appellant for an additional period of 12 months.

[3]      The appellant’s case is that the sentence of 15 months’ imprisonment was manifestly excessive, particularly the uplift of six months’ imprisonment from the starting point of 10 months’ imprisonment for the driving while disqualified charges. Further, the appellant says, the Judge failed to give proper credit for mitigating factors.

[4]      The appeal though essentially was argued on the proposition that a start sentence of 16 months’ imprisonment for driving while disqualified charge was too high, resulting in a manifestly excessive end sentence.

The facts

[5]      In May 2008 the appellant was convicted of driving while his licence was suspended and disqualified.   In August 2011, he was convicted of driving while disqualified for a third or subsequent time and disqualified for a further period of

12 months from that date.

[6]      On  21 August 2012,  the  appellant  was  stopped  driving  his  vehicle  in

Kaikohe.  He acknowledged he was disqualified.

[7]      It seems that the matter was called in the Kaikohe District Court initially and the proceedings transferred to New Plymouth on 5 September 2012 when he pleaded guilty to the charge.

[8]      He   was   remanded   on   bail   for   sentence.      Three   days   later   on

8 September 2012, the appellant was at his home in Waitara with his partner.   He woke to find her gone.  Eventually he discovered her at a neighbour’s house where she told him she no longer wished to live with him.

[9]      The appellant left a short time later, reappeared carrying a screwdriver and a wooden pole.  He began yelling and abusing the victim and others and threatened to stab everyone present with a screwdriver.  Eventually he left.

[10]     The  appellant’s  partner  had  obtained  a  protection  order  in  2008.    The appellant, therefore, was charged with breaching the protection order as well as possession of an offensive weapon on that day.

The District Court decision

[11]     The appellant pleaded guilty to those two offences shortly after he appeared in Court.  At sentencing with respect to all three offences, the Judge noted that the appellant had a large number of previous convictions.   In particular, the Judge mentioned he had 10 previous convictions for driving while disqualified, this, therefore, would be the 11th, six of which were…