Drinkwater v Police

[2013] NZHC 1036

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 in the last 10 years.

[12]    As to the protection order there had been a previous breach in 2010.  The sentencing Judge noted that he had previously not disqualified the appellant on a driving while disqualified charge in an attempt to provide him with a fresh start but, as he noted, that appeared not to have worked.

[13]     The Judge detailed the appellant’s personal circumstances and concluded the appropriate course was a sentence of imprisonment.   The Judge considered that a start sentence of 10 months’ imprisonment was appropriate for the driving while disqualified charge with an uplift of six months’ imprisonment for the appellant’s past offending of driving whilst disqualified.

[14]     As to the violent offending and the breach of the protection order, the Judge considered an additional four months’ imprisonment was appropriate making a final sentence of 20 months’ imprisonment.   The Judge then deducted five months for what was the only mitigation effectively, the appellant’s early guilty pleas.  Slightly confusingly that total sentence was then imposed on the driving while disqualified charge with concurrent sentences on the protection order and possession of an offensive weapon charges.  The sentences on the protection order and possession of

an offensive weapon, should have been cumulative sentences to reflect the separate offending.

[15]     The Judge did not consider home detention was appropriate, that was because of the appellant’s; previous convictions; his failure to obey Court orders; lack of interest or commitment to change and the fact the Judge doubted the appellant’s ability to comply with home detention.

Appellant submissions

[16]     The appellant submits the Judge, in this case, took the wrong approach in setting a starting point for driving while disqualified and then was wrong to proceed to uplift the start sentence for the appellant’s previous driving whilst disqualified convictions.  The appellant says that the proper approach to sentencing for driving while disqualified is that the start sentence should incorporate the number and circumstances of the previous driving while disqualified convictions and that any uplift must be limited to further offending.

[17]     Thus, the appellant submits that the uplift of six months’ imprisonment was wrong and that in any event a proper start sentence for the driving whilst disqualified offending including the appellant’s past convictions was in the 10 to 12 month range.

Discussion

[18]     I consider the proper approach in sentencing for a third or subsequent driving while disqualified charge is to reflect all of the appellant’s previous convictions for driving  while  disqualified  in  the  start  sentence  for  the  current  offending.    The increase in penalty passed by Parliament for a third or subsequent driving while disqualified charge, is intended to reflect the fact of the appellant’s total previous driving while disqualified record.  Accordingly it falls more naturally to consider his total previous driving record in the start sentence for a current driving while disqualified charge.  The alternative approach would be to assume the offending was a third offence (the qualifying number), set a start sentence for such offending and then up lift the sentence to reflect the actual number of past disqualified driving

offences.  That approach would be wholly artificial.  Any uplift for past offending would therefore relate to other offending and not the driving while disqualified charge.

[19]     However, in this case the erroneous approach of the Judge is of no assistance to Mr Drinkwater.  Mr Drinkwater has now being convicted of eleven occasions of driving while disqualified.  Of these, as I have noted, at least now seven have occurred in the last 10 years.

[20]     A  start  sentence,  therefore,  at  or  close  to  the  maximum  of  two  years’

imprisonment could have been justified.   The Judge’s effective start sentence was

16 months’ imprisonment,  well  within  the  two  year  maximum.    There  was  no aggravated driving here although typically that would be reflected in other charges and the overall sentence for the offending inevitably elevated.  The Judge’s starting point of 16 months’ imprisonment more than adequately took into account the spread of previous convictions and the appellant’s age.  In my view it could not possibly be criticised.

[21]    As to the other offending, this was a highly charged situation where the appellant’s partner and others were threatened with serious physical assault by the appellant.  The appellant has a long history of violent offending.  Most recently in

2010 he breached a protection order and was imprisoned for injuring with intent to injure.  He has been previously imprisoned for violent offending on a number of occasions.   A sentence of a further four months’ imprisonment for the breach of protection order and possession of an offensive weapon charge is well within the range available.

[22]     The reduction of 25 per cent collectively for the appellant’s guilty pleas was effectively the maximum available to the appellant.  In those circumstances it cannot be  said  that  the  overall  sentence  of  15 months’  imprisonment  was  manifestly excessive or wrong in principle.

[23]     For the reasons given, the appeal will be dismissed.

Ronald Young J

Solicitors:

K R Pascoe, Partner, Nicholsons, New Plymouth, email:  [email protected]
S A Law, Crown Solicitor, New Plymouth, email:  [email protected]