Finch v R

[2012] NZCA 446

IN THE COURT OF APPEAL OF NEW ZEALAND

CA401/2012
[2012] NZCA 446

BETWEEN  BUDDY RAY FINCH
Appellant

AND  THE QUEEN
Respondent

Hearing:         19 September 2012

Court:             White, Ronald Young and Simon France JJ

Counsel:         S-L Litt for Appellant
M R Davie for Respondent

Judgment:      28 September 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. Mr Finch appeals a sentence of 18 months’ imprisonment imposed on one count of attempting to pervert the course of justice, and three of disqualified driving.[1]  These were his fifth, sixth and seventh convictions for that latter offence.  Mr Finch is 18 years old.

Facts

[1]      R v Finch DC Christchurch CRI‑2011‑009‑010156, 21 June 2012.

1. On 28 September 2011, Mr Finch was caught driving while disqualified.

2. On 25 November 2011, the same thing happened again.  On this occasion, however, rather than admit his identity, Mr Finch produced someone else’s licence.  While the licence was being checked, he absconded.  He was later identified as the driver and charged accordingly.  He denied it but was convicted of disqualified driving and attempting to pervert the course of justice (by using someone else’s licence).

3. On 2 December 2011, he was again apprehended driving whilst disqualified.

Sentencing

1. Judge Garland noted a prolific history of Youth Court appearances which had continued unabated in the adult jurisdiction.  Mr Finch already owed $14,000 in fines, and more than $8,000 in reparation.

2. Having considered the various authorities put to him, the Judge took a starting point of six months’ imprisonment for the charge of attempting to pervert the course of justice.  He then added 14 months for the three disqualified driving charges, and uplifted by a further six months’ imprisonment to reflect the previous record and the fact that some offending was while on bail.[2]  For belated guilty pleas on some offences he deducted one month, and then a further three months for youth, leaving the sentence at 22 months’ imprisonment.  Finally, considering the overall totality, the Judge concluded a lesser sentence was appropriate and reduced it to a final term of 18 months’ imprisonment.

   [2]We record some concern over the uplift.  It represents 33 per cent of the starting point in relation to an 18 year old.  Further, it needs to be recalled that in so far as the previous offences involve disqualified driving, the higher starting point for third and subsequent already reflects that, although we accept this is multiple examples of committing that aggravated offence.

3. His Honour considered home detention would not meet the needs of deterrence and denunciation.  At that point there was in any event no suitable address.

Appeal submission

1. Ms Litt had begun her oral submission by advising of changed circumstances.  Since the appeal was filed, Mr Finch had pleaded guilty to two further offences – unlawfully taking a car, and receiving a (different) car.  The latter offence is tied to the attempting to pervert the course of justice charge, in that it seems the licence used had been found in this car.  These offences also occurred in the October/November period of 2011.  Sentencing is yet to take place.

2. Ms Litt ably advocated for a different sentence.  The primary thrust was Mr Finch’s age and the circumstances of the offending.  She pointed out that 2011 represented somewhat of an uncontrolled spree in a young man’s life.  It was repetitive offending, but as regards the driving there were never any charges of poor or dangerous driving.

3. In December 2011 Mr Finch had spent a week in remand custody, and Ms Litt advised it was somewhat of a watershed.  He realised the consequences of his actions, and had not offended since.  There was an opportunity to recognise this change by a sentence of home detention that would be punitive yet keep a young man out of prison.

4. In terms of the length of sentence it was submitted more credit could have been given for Mr Finch’s youth.

Decision

1. Looking at the sentence under appeal, in our view the Judge imposed a sentence that was available.  Another Judge may have considered giving Mr Finch one last chance, but on appeal it cannot be said that Judge Garland was wrong to not do so.  The possibility that an appeal court might consider it appropriate to intervene is further reduced by the new offending now admitted.

2. Since May 2011, Mr Finch has committed at least 18 offences, many either whilst on bail or shortly after appearances in Court.  Many of the offences involve direct victims (receiving, false use of a bank card, theft).  It is a shame that Mr Finch has come to his senses too late to avoid incarceration, but the circumstances were such that the Judge was entitled to sentence as he did.

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent