Dungey v Police

[2014] NZHC 2933

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-000030 [2014] NZHC 2933

THOMAS WILLIAM DUNGEY Appellant

v

POLICE Respondent

Hearing:	24 November 2014 (via AVL)
Counsel:	C Ure for Appellant C Power for Respondent
Judgment:	24 November 2014

JUDGMENT OF WHATA J

[1]      Mr Dungey is appealing a sentence of one year nine months imprisonment imposed for unlawful possession of a firearm, unlawfully taking a motor vehicle, driving while disqualified, refusing an officer’s request for a blood specimen (third or more) and being unlawfully in an enclosed yard or area.

[Judge confers with counsel re offences]

[2]       The grounds for the appeal are that:

(a)       the initial starting point of one  year three months adopted by the

Judge was too high;

DUNGEY v POLICE [2014] NZHC 2933 [24 November 2014]

(b)an initial uplift applied for the additional offending was excessive in its extent and also involved one of the offences being “double counted”;

(c)      a  second  uplift  applied  amounted  to  “double  counting”  of  the appellant’s previous convictions.

Background

[3]      The background facts are not disputed.  On Friday, 6 June 2014, Mr Dungey was drinking at the White Horse Inn, Union Street, with his work associates.   He became  intoxicated.    The  sober  driver  of  a  Toyota  Hilux  work  vehicle  gave Mr Dungey the keys to put a jersey into the truck.  A .308 rifle was in the cab of the utility at the time.  Mr Dungey got into the car and drove away from the White Horse Inn carpark.

[4]      At about 12.05 am on the following Saturday morning Mr Dungey drove the car around the perimeter of the Otago Correctional Facility (OCF) in Milburn.  At one stage the defendant stopped the vehicle and was approached by two prison officers.  He did not respond to questions from them as to why he was on the OCF property.   One of the prison officers saw the .308 rifle with three rounds in the magazine lying between the front seats.  The officer seized the rifle and attempted to get the keys out of the ignition.  Mr Dungey grabbed the keys and ran off.  He was later found in a nearby paddock and he was arrested.

[5]      Mr Dungey refused a passive breath test and then refused a breath screening test, evidential breath test and finally a blood test.

[6]      Mr Dungey pleaded guilty on the four charges noted above and came before Judge Phillips for sentencing.  The Judge noted that Mr Dungey was facing his third charge of refusing to be tested and his last conviction for refusing was as recent as August 2013.  The Judge also noted that Mr Dungey was driving as a disqualified driver and that he had previous convictions for serious violence, dishonesty and breaches of Court sentences.  The Judge observed that Mr Dungey did not hold a firearms licence and that his employers had told him that he could not use the work

vehicle.  He noted that Mr Dungey was entirely uncooperative for the purposes of the testing procedures.

[7]      The Judge referred to the need for strong denunciation and deterrence for the drinking and driving at what he assumed was a grossly intoxicated level and driving whilst disqualified.  He referred to the need for accountability and protection of the community.  He referred to repeat recidivist drinking and driving and the need to be consistent.

[8]      He noted from the pre-sentencing report that Mr Dungey is a high risk but motivated to address the issues that gave rise to his offending.

[9]      The key passage of the sentencing is then as follows:

[5]       So we have this situation.  We have your fifth excess breath alcohol related conviction; your third refusal.  You were disqualified at the time you were driving a vehicle you were not allowed to drive at a high level of intoxication to the stage where you cannot recall what you did.  I must assess that as you being well above a moderate level of offending.  When I have regard to that, in respect to the refusing, my starting point for your sentence is that you go to prison for one year and three months.   In relation to the firearm charges and the vehicle, when I look at all of that I consider that there should be an uplift of some six months for that offending, and your overall prior history (appalling as it is) calls for a further uplift of six months to arrive at a sentencing starting point of some two years and three months. In relation to your guilty plea credit, I am going to assess that as a six month deduction, bringing my end point down to 21 months.   I have regard to totality of sentence in regard to all of the offending.  I consider an end point of you going to prison for 21 months to be appropriate (one year and nine months). You are going to be sentenced accordingly.  …

[10]     The sentence is then broken down as follows:

(a)       For the lead charge of possession of a firearm, one year and nine months imprisonment.

(b)      Forfeiture of the firearm and all ammunition seized.

(c)      On the charge of dishonestly taking the motor vehicle, six months

(concurrent).

(d)      On being found without excuse at the corrections facility, one month

(concurrent).

(e)       On the charge of refusing, one year.

(f)       On the charge of driving whilst disqualified, one month imprisonment and  disqualification  for  a  period  of  nine  months  commencing

9 October 2014.

Grounds of appeal

[11]     Overall the appellant submits that the sentence was manifestly excessive, but does not challenge a term of imprisonment.

[12] The three basic grounds are set out at [1].

[13]     Ms Ure elaborates that the starting point was too high and that the starting point should have been in the region of 9-12 months imprisonment.   Reference is made to Vitali v R1  and Matkovich v Police.2     Mr Vitali received a sentence of

15 months  imprisonment  on  charges  of  driving  with  excess  breath  alcohol  and dangerous driving where his breath alcohol was 563 micrograms per litre of blood. In  Matkovich  a  starting  point  of  nine  months  imprisonment  was  established  in relation to one charge of drink driving with excess breath alcohol and a charge of carelessly using a motor vehicle.   Mr Matkovich’s breath alcohol limit was 901 micrograms of alcohol per litre of breath.

[14]     Ms Ure said that the current offending lies somewhere between Vitali and

Matkovich.

[15]     It is emphasised that there was no evidence of bad driving on the appellant’s

part in contrast to Vitali and Matkovich.  It is submitted that a starting point should have been in the region of 9-12 months rather than one year three months.

1      Vitali v R [2013] NZHC 1994.

2      Matkovich v Police [2013] NZHC 872.

[16]     It is then submitted that there should have been no uplift for the unlawful taking of a motor vehicle given that it formed part of setting the starting point and to do so double counted an aggravated feature of the offending.

[17]     It is also submitted that in the absence of any previous relevant convictions for firearm offending any uplift for the unlawful possession of a firearm should not have exceeded three months.   It is therefore submitted that the uplift of some six months for the firearms charges and the unlawful taking was excessive.

[18]     Ms Ure then submits that a further uplift for “overall prior history” was inappropriate.  She said that the key relevant prior offending on what appears to be the main offending, namely refusal, is inherent to the charge, and it was double counting to provide a further uplift on this account of six months.

[19]     Overall therefore it is submitted that the sentence imposed was manifestly excessive and should be revisited.

[20]     The  respondent  submits  that  given  the  appellant’s  history  and  mix  of offending an end sentence of 21 months imprisonment cannot be considered to be manifestly excessive.

[21]     Counsel helpfully referred to the decision of Clotworthy v Police3  and the criteria essayed there when dealing with driving offences of the kind in this case. The Crown notes in terms of those criteria:

(a)       this was the appellant’s third charge of refusing;

(b)      the most recent refusal was in August 2013;

(c)       the appellant also had convictions for two excess breath alcohols, both with high readings;

(d)      the appellant was driving while disqualified;

3      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

(e)       the appellant had numerous previous convictions for other offending;

(f)       there  appeared  to  be  no  remorse  or  willingness  on  behalf  of  the appellant to address his alcohol issues; and

(g)when stopped at the OCF the appellant took the car keys and tried to run off.

[22]     It is therefore submitted that a starting point of 15 months on the refusing charge alone was appropriate.

[23]     It was also submitted that the Court had to be mindful of the totality principle and applied it correctly in this case.

Assessment

[24]     The central issue on appeal is whether a starting point of 15 months together with a total uplift of 12 months was manifestly excessive in this case.  One confusing aspect of the judgment is that the lead charge for the purposes of sentencing was the possession of a firearm for which Mr Dungey was sentenced to prison for one year and nine months.  But with respect, that cannot be right when the starting point was fixed by reference to the refusing charge.  Moreover, an end sentence of one year

nine months for a first offence under the Arms Act 1983 is manifestly excessive.4

But I am content to proceed on the basis that the Judge was effectively sentencing Mr Dungey in relation to his third and subsequent refusal charge and that this set the base for the sentence.

[25]     Turning then to the start point for the refusing charge.  It appears to me that a starting point of 15 months for a third refusing charge is at the top end of the

spectrum.   Helpfully Katz J in Vitali essayed a range of cases concerning driving

4      See for example, R v Askin [2012] NZHC 1681, in which Mr Askin was sentenced to 12 months’ home detention on one count of possession of cannabis for sale and two counts of unlawful possession of firearms and explosives. A police search of the offender’s house revealed a .22 magnum rifle, a .270 rifle, a .357 magnum rifle and a 12 gauge single shotgun with a cut do wn stock minus the barrel. MacKenzie J adopted a starting point of two and a half years’ imprisonment for the drug offending and imposed an uplift of six months for the firearms charges.

offences third and subsequent.  In the case of Vitali, the Court was satisfied that a starting point of 15 months was appropriate in circumstances where Mr Vitali was facing his eighth charge of excess breath alcohol.  Notably, Mr Dungey has ten prior convictions for driving related offences, including five convictions for refusing to give blood or excess blood alcohol.  He is plainly a recidivist offender like Mr Vitali, so the starting point of 15 months was high but not manifestly excessive.

[26]     Turning then to the uplifts, I agree with the Judge that the firearms, unlawful taking  and  being  found  without  excuse  are  separate  from  the  driving  related offending and should be treated cumulatively rather than concurrently for the purposes of sentence.   I find an additional seven months for that purpose to be appropriate.  But I do not consider that a further uplift for prior related offending was warranted.   The more relevant prior offending is captured by the starting point. Similarly, I consider that the driving without a licence formed part of the primary offending and any sentence for this should be served concurrently.

[27]     Taken  together  this  would  result  in  a  cumulative  starting  point  for  the offending and aggravating factors personal to the appellant at one year ten months. He would then be entitled to a discount of about 25 per cent for a guilty plea, being five months with the end sentence of 17 months.

[28]     Given where I have got to, and premised on my finding that the starting point for what was a third refusal conviction an end sentence of 17 months imprisonment is appropriate.

[29]     The appeal is allowed and the sentence is substituted with an end sentence of

17 months imprisonment comprised as follows:

(a)       On the refusal (third and subsequent), an end sentence of ten months; (b)     On driving without a licence, one month, concurrent;

(c)       On the firearms charge, three months, cumulative;

(d)      On the unlawful taking, three months, cumulative; and

(e)       On the being found without excuse, one month cumulative; and

(f)       The  sentence  of  disqualification  for  a  period  of  nine  months commencing 9 October 2014 remains appropriate;

(g)      Forfeiture orders are also to remain in place.

Solicitors:

Public Defence Service, Dunedin

Wilkinson Adams, Dunedin