Gillies v The the Queen

[2022] NZHC 534

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-000002

[2022] NZHC 534

BETWEEN

JOHN GILLIES

Appellant

AND

THE QUEEN

Respondent

Hearing:	17 March 2022 (via VMR)
Appearances:	P Jensen for the Appellant B Harris for the Respondent
Judgment:	22 March 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 22 March 2022 at 1pm.

.....................................................

Registrar / Deputy Registrar5

Counsel:            Philip Jensen, Barrister, Napier Solicitor:  Hamilton Legal, Hamilton

GILLIES v R [2022] NZHC 534 [22 March 2022]

Introduction

[1]    On 10 December 2021, the appellant John Gillies was sentenced by Judge Mabey QC in the District Court at Hamilton to 19 months’ imprisonment and four years’ disqualification from holding or obtaining a driver licence.1 Mr Gillies had pleaded guilty to five charges of aggravated careless use of a vehicle causing injury (the Crown charges), as well as one charge of failing to stop when followed by red and blue flashing lights, and one charge of driving while disqualified (third or subsequent) (together the Napier charges).

[2]Mr Gillies now appeals his sentence on the basis that:

(a)the starting point was too high;

(b)the uplifts were excessive;

(c)the sentencing Judge did not take all mitigating factors into account; and

(d)the length of time that he is disqualified from driving is excessive.

Background

[3]    The five charges of aggravated careless use of a vehicle arose out of one incident. The Judge describes it in detail:

[5]        On Saturday 18 July 2020, in the afternoon, you were driving a vehicle northbound on State Highway 1 in Cambridge. You had your friend, Mr Anderson, with you. It was fine and dry and there was a moderate amount of traffic. Where you were driving was a two-lane highway, one in each direction, with a 100 kilometre per hour speed limit. The lanes are separated by a white painted median strip which is accompanied by yellow lines to prohibit overtaking.

[6]        In addition there were signs prohibiting passing on the painted median. It was clear to all road users that it was contrary to law to pass on that painted median [which] was there to promote road safety, having regard to the geography of the road and its characteristics at that point. What you did was overtake on the median.

1      R v Gillies [2021] NZDC 24427 [District Court judgment].

[7]        The summary says you did so at speed but I have enquired into that and am satisfied that there is no proof of any greatly excessive speed …

[8]         What then happened was that your motor vehicle lost traction such that when you corrected you ended up on the wrong side of the road. Coming towards you was a motor vehicle with four occupants. There was a head-on collision and the occupants of that vehicle and your passenger were injured.

[9]        I have received victim impact statements from the four occupants of the other vehicle, two of whom received relatively minor injuries but two were very severely affected. One of the occupants has lifelong injuries. He received internal ruptures required more than one surgery, was hospitalised for a long time, suffered financially and will continue to suffer both physically and mentally. He was successful in a particular sport but cannot return to that. He suffers from PTSD and his family bear that burden with him. Another occupant received fractured ribs and sternum, was hospitalised and the accident has had a significant emotional impact. The other two who were less injured nonetheless suffered through those injuries and incurred financial loss.

[4]The two Napier charges were unrelated to this incident.

District Court decision

[5]    Prior to the sentencing decision, a disputed facts hearing was set.2 However, the day before the hearing, it was cancelled following a telephone conference between the Judge, Crown counsel and defence counsel. The Judge found that the issues to be raised during the proposed disputed facts hearing would not affect his sentencing decision. He referred to this in his sentencing remarks as follows:

[11]              I was not so satisfied about the need for a disputed facts hearing and having read the file yesterday and had a telephone conference with counsel it was during that discussion that Ms Alcock [Crown counsel] was able to inform me as to the basis of the reference “overtaking at speed” in the summary of facts. She maintained that there was speed beyond the speed limit but was frank in her acknowledgement that one witness, some distance back, would be able to express an opinion that you may have been exceeding the speed limit, but it was no more than that. I indicated under s 24(1) that the reference to “overtaking at speed” in the summary of facts would not impact upon my assessment of your culpability.

[12]              The other matter raised by Mr Pell [defence counsel] was not in fact a mitigating factor of the type anticipated under s 24. He gave me some information about why it was there was a loss of control of the vehicle which amounted to an explanation but not a mitigation. …

2      Sentencing Act 2002, s 24.

[6]    On sentencing, the Judge adopted a starting point of 18 months for the Crown charges. He uplifted this by two months for Mr Gillies’ “very long list of previous convictions which involve … reckless and careless driving”, and the fact that when these events occurred Mr Gillies was on bail for an unrelated matter.3

[7]    For Mr Gillies’ guilty plea “at a relatively early stage” once the Crown Solicitor reduced the charge from dangerous driving to aggravated careless driving, the Judge gave Mr Gillies a 20 per cent discount (or four months).4

[8]    A further four-month reduction to the sentence was given for the eight and a half months that Mr Gillies complied with his electronically monitored bail.

[9]    As a result, a sentence of 12 months’ imprisonment was imposed for the five charges of aggravated careless driving,5 together with a 12 month disqualification from holding or obtaining a driver licence on each of those charges.

[10]The Judge then imposed separate cumulative sentences for the Napier charges.

[11]   For driving while disqualified (third or subsequent), he imposed a cumulative sentence of six months’ imprisonment and the minimum mandatory disqualification from holding a driver licence for one year.

[12]   For failing to stop, the Judge imposed a cumulative sentence of one month’s imprisonment and the minimum mandatory disqualification from holding a driver licence for two years.6

[13]   The total of three years’ disqualification on the Napier charges will take effect after Mr Gillies’ one year’s disqualification on the Crown charges ends.

3      At [18]

4      At [19]

5      The Judge calculated this using the three-step method: R v Taueki [2005] 3 NZLR 372 (CA). Had he used the two-step method, it would have resulted in a sentence of 12.4 months: Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

6      The District Court judgment, above n 1, at [27] says: “On the failing to stop charge there is an additional cumulative term of one month’s imprisonment and a cumulative period of two years’ imprisonment”. The word imprisonment at the end of the sentence is clearly a typographical error and should instead be “disqualification”.

Approach on appeal

[14]   An appeal must be allowed if there is an error in the sentence imposed and a different sentence should be imposed.7 However, if “the sentence is within the range that can properly be justified by accepted sentencing principles”, then the appellate court should not intervene; the sentence must be “manifestly excessive”.8 Whether the sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.9

Appellant submissions

[15]   Mr Gillies filed his own detailed and careful submissions. Mr Jensen relied on those submissions as well as his own submissions as counsel.

Disputed facts hearing

[16]   Mr Gillies says the disputed facts hearing had been ordered by another Judge and its cancellation was “unfair” as he felt unable to give his version of events to the sentencing Judge before sentencing. He then sets out the facts he had hoped to establish. He claims that his carelessness did not cause the crash. Instead, following his re-entry into the lane, metal debris from a motorbike smashed the windscreen of his car, and he lost control of the car trying to take evasive action. He now says another factor he could have raised at the s 24 hearing is that the car he hit had an expired warrant of fitness. His culpability must be reduced for those reasons.

[17]   Mr Gillies submits the intervening factor that caused the crash should be a mitigating factor in calculating his sentence, and his counsel failed to “accurately promote” this “scenario” to the sentencing Judge during the telephone conference. I interpolate here to note that in his written submissions Mr Jensen made it clear he was not alleging counsel error either in relation to the telephone conference or at the sentencing hearing. Mr Jensen confirmed that position at the hearing in Mr Gillies’ presence (by VMR).

7      Criminal Procedure Act 2011, s 250.

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

9      Ripia v R [2011] NZCA 101 at [15].

Uplift was excessive

[18]   Mr Gillies submits that the uplift for committing the driving offences in the Crown charges while on bail was excessive. He does not accept it is an aggravating feature of the offending because that assumes he had “a degree of disregard of [his] bail conditions — when there is no evidence of that”. Furthermore, he says the charge to which the bail relates was withdrawn by the Crown in early 2021. Therefore, Mr Gillies submits, its value is diminished if not extinguished.

[19]   Additionally, he submits that his previous convictions were double counted as they were used to justify the uplift of his sentence on the Crown charges as well as on the driving while disqualified charge.

Mitigating factors not considered

[20]   Mr Gillies submits the sentencing Judge erred in not considering whether his remorse should have attracted a discount on his sentence on the Crown charges.

[21]   He also takes issue with the failure of the police to take a victim impact statement from the passenger in his car, Shane Anderson. He says Mr Anderson could speak to the support that Mr Gillies gave him following the crash.

Manifestly excessive sentence for driving while disqualified

[22]   On 7 August 2021, Mr Gillies appeared before Judge Mackintosh in the Napier District Court. He had requested and was given an informal sentence indication of two months’ imprisonment for the disqualified driving and the failure to stop charges. He submits this “exemplifies the inconsistency and disparity present in this case”.

[23]    He notes the sentencing Judge referred to his 20 previous convictions for driving while disqualified and nine driving charges from 2020. However, Mr Gillies emphasises that most of the driving while disqualified offences occurred over 20 years ago, and all were dealt with by way of a concurrent sentence. He refers to the judgment

of this Court in Tua v Police where a sentence of imprisonment was quashed, and a sentence of 350 hours community work substituted.10

[24]   Furthermore, in respect of nine driving charges in 2020, Mr Gillies was sentenced to a total of two years and nine months disqualification and four months’ community detention. He states that it “makes absolutely no sense” to be sentenced to 6 months’ cumulative imprisonment for much less serious offending given that he had successfully completed his community detention sentence.

[25]   The above three paragraphs are a summary of what Mr Gillies says in his own written submissions. Mr Jensen in his supplementary submissions says the four years’ disqualification is manifestly excessive and creates a situation that is dangerous to the public. Mr Gillies is likely to drive despite his disqualification and is well known to the Police. Therefore, if the punitive sentence remains, he is likely to run again next time. Mr Jensen says that “[t]his situation is fraught with random danger for the rest of the public”. Further, he submits that this sentence fails to meet the principles and objectives of sentencing as it fails to deter or rehabilitate.

[26]   While he does not allege error on the part of counsel who represented Mr Gillies at the sentencing hearing, Mr Jensen does say that he himself is to blame for having the two Napier charges transferred and accordingly for the consequences to Mr Gillies. He was counsel for Mr Gillies in the Napier District Court and he had proposed on behalf of Mr Gillies that the two Napier charges be transferred to the Hamilton District Court so that they could be dealt with at the same time as the Crown charges. Mr Jensen says that in seeking transfer he overlooked the submissions that could be made to the District Court as regards the appropriate sentences for the Napier charges.

[27]   He says if the appeal was allowed and those two charges were remitted to the District Court (which he submits is the appropriate response), submissions and evidence supporting the exercise of the Court’s discretion to sentence Mr Gillies to a community-based sentence under ss 81 and 94 of the Land Transport Act 1998 would be made. As well, a s 27 report might be filed to explain the cluster of driving offences

10     Tua v Police [2013] NZHC 2994.

in recent times after a long period when there were no such offences. He also raises the possibility of an application to grant a discharge without conviction under s 106 of the Sentencing Act 2002.

[28]   In the alternative, Mr Jensen submits that the one-month sentence for failing to stop should not be cumulative. No reasons were given for a cumulative sentence. A concurrent sentence is appropriate.

[29]   Additionally, Mr Jensen submits that a guilty plea discount should apply to the sentences that the Judge added on for the Napier charges. As Mr Gillies pleaded guilty to these charges at an early stage, he submits a 25 per cent discount is appropriate. That would take one and a half months off the six-month starting point (assuming the one month sentence is ordered to be concurrent).

[30]   In that regard Mr Jensen says although this is a relatively minor change that may be seen as tinkering, it is “principled tinkering” and should be given effect.

Remedy

[31]   Mr Gillies submits that a starting point of 12 months’ imprisonment for the five Crown charges would be more appropriate as that would reflect his reduced culpability.

[32]   Further, he says his sentence for driving while disqualified should be reduced to three months’ cumulative imprisonment as that is a balance between the current sentence and the informal sentence indication he had received from the Judge in the Napier District Court.

[33]   Finally, he says that the uplift should be reduced by one month and a five per cent discount for remorse should apply.

[34]By his calculations, this would come to a total of ten months’ imprisonment.

Respondent submissions

Disputed facts hearing

[35]   The Crown submits the Judge’s determination that the intervening factor that Mr Gillies had hoped to put forward is not a mitigating factor is one that was open to the Judge.

Uplift

[36]   In relation to the appellant’s breach of bail as an aggravating feature of offending, the Crown notes s 9(1)(c) of the Sentencing Act requires the Court to take into account the offence being committed while the offender was on bail or still subject to a sentence.

[37]   The Crown submits that the uplift for the Crown charges and the cumulative sentence for driving while disqualified is not disproportionately high and did not amount to double counting. The sentencing Judge was careful in describing the relevant offences for which the uplift applied and was mindful of double punishment and double counting.

Cumulative sentence for driving whilst disqualified

[38]   In relation to the six-months’ imprisonment sentence for driving while disqualified, the Crown highlights that this was Mr Gillies’ 19th conviction for driving while disqualified.

[39]   In Stacey v Police, Paul Davison J observed that a sentence close to the maximum period of two years imprisonment is warranted where the number of prior convictions for driving while disqualified is very high.11 In that case, the appellant was convicted for the 21st time for driving while disqualified. The sentencing Judge had adopted a starting point of 18 months’ imprisonment, and the High Court dismissed the appeal.

11     Stacey v Police [2018] NZHC 3280 at [36] citing Toby v Police HC Auckland CRI-2005-404-175, 21 October 2005 and Hughes v Police HC Invercargill, CRI-2003-425-17, 31 October 2003.

[40]The Crown also quotes Nation J in Garlick v Police:12

The essence of a driving while disqualified charge for which the Court must sentence an offender is the deliberate ignoring or flouting of a Court order imposing the disqualification. Where the offence has been committed for the seventeenth time, it must be within the most serious of cases for which the maximum penalty of two years’ imprisonment can be imposed so that a penalty close to the maximum available has to be considered.

[41]   The Crown submits that if Mr Gillies was being sentenced for driving while disqualified on its own, a starting point close to the maximum penalty would be available. Accordingly, the cumulative term of six months’ imprisonment cannot be said to be excessive and a higher penalty was within the range available to the sentencing Judge.

[42]The Crown submits the appeal should be dismissed.

Discussion

Disputed facts hearing

[43]   It was open to Judge Mabey QC to cancel the disputed facts hearing which had been set down by another Judge. Sentencing is a discretionary exercise. It is for the sentencing Judge to decide and indicate to the parties the weight that would likely attach to a disputed fact if it were found to exist and its significance to the sentence or other disposition of the case.13

[44]   There was no need  for the sentencing Judge to confirm  his  decision with  Mr Gillies personally before finalising his decision, as counsel for Mr Gillies took part in the telephone conference.

[45]   The Judge decided a disputed facts hearing was unnecessary because he considered the information Mr Gillies wished to provide was an explanation but not a mitigating factor. He said:14

12     Garlick v Police [2016] NZHC 572 at [7].

13     Sentencing Act 2002, s 24(2)(a).

14 At [12].

[12] … Your culpability is to be assessed on your degree of carelessness which is always the case when allegations of carelessness are alleged, with or without injury or death. Your carelessness was passing on the painted median and there is a direct causal link between that passing manoeuvre and the crash and it is that carelessness that I judge you on. I do not take the view that speed had anything to do with what happened as there is no proof that there was excessive speed which was related to the accident.

[46]   Even if Mr Gillies were to prove that it was more likely than not, that metal debris from a motorcycle in front of him flew at his windshield the chain of causation is not broken. As Mr Gillies acknowledges “Because of that (overtaking) manouvre [sic] my car was positioned between the vehicle I overtook and a motorbike” — a position he would not have been in but for his careless driving.

[47]   I turn to Mr Gillies’ submission that the disputed facts hearing should have also addressed his assertion that the vehicle his car hit did not have a current warrant of fitness. First, as I understand it, that was not a submission made to the District Court Judge, rather it was a new submission in this Court. The details of the vehicle that was hit would most likely have been on the Police file. Mr Gillies could have raised this at the sentencing hearing. However, if had he done so it is not apparent to me how that fact, if accepted, would in any way reduce Mr Gillies’ culpability. This is not the kind of matter that is suited for a s 24 hearing.

[48]In short, the Judge did not err in not holding a disputed facts hearing.

Starting point (Crown charges)

[49]   While in the written submissions it was argued that the 18-month starting point was too high, in oral submissions Mr Jensen (in Mr Gillies’ presence) acknowledged that the 12 month end sentence on the Crown charges is not manifestly excessive. He accepted that it is within range. As Mr Jensen correctly acknowledges it is the end sentence that the Court considers, not the process by which the end sentence is reached. Given that concession, which in my view was a proper one, it is not necessary to consider whether or not the starting point was too high.

[50]   I will address the other factors that the Judge applied in reaching his end sentence only briefly given the concession as to the appropriateness of the end sentence.

Uplift

[51]   I accept the Crown’s submissions that offending while on bail is an aggravating factor as it is listed in s 9 of the Sentencing Act 2002. The fact that Mr Gillies breached bail is in itself evidence that he had a degree of disregard for his bail conditions as well as Court processes.15 It is not relevant that the charge on which he was on bail was later withdrawn.

[52]   I also accept that there was no double counting of uplifts due to Mr Gillies’ previous convictions. The Judge referred specifically to “driving charges including reckless and careless driving” when calculating the uplift for the Crown charges16 and “20 previous convictions for driving whilst disqualified” when calculating the uplift for the driving while disqualified charge.17

Discounts

[53]   While Mr Gillies’ letter to the Court was mentioned by the Judge it was in the context of a consideration of Mr Gillies’ previous convictions. I accept that the letter to the Court does contain an expression of remorse and a small discount would have been appropriate. However, that would need to be balanced against what I consider was an overly generous allowance for time spent on EM bail (a 50 per cent reduction amounting to a credit of four months).

[54]   As to Mr Gillies’ complaint about there being no victim impact statement of his passenger Mr Anderson, any such statement would not lessen the impact of     Mr Gillies’ actions on the occupants of the car that he hit. Victim impact statements are not “balanced” against each other. If Mr Gillies had wished the Judge to take into account any views of Mr Anderson regarding assistance Mr Gillies had given him

15     Clunie v R [2013] NZCA 110 at [22].

16 At [18].

17 At [24].

subsequent to the offending, to support a submission in relation to remorse, it would have been open to the defence to provide that material either through Mr Anderson or Mr Gillies at the sentencing hearing.

Uplift for driving while disqualified

[55]   While I accept the Crown’s submissions that a sentence close to the maximum period of two years imprisonment is warranted where the number of prior convictions for driving while disqualified is very high, it is also relevant that most of Mr Gillies’ previous convictions for driving while disqualified were from over twenty years ago.

[56]   However, his repeated convictions for driving while disqualified in the past year demonstrate a persistent disregard for court-imposed restrictions. Therefore, I am satisfied that the Judge did not err in imposing a cumulative sentence of six months’ imprisonment for Mr Gillies’ driving while disqualified charge. This is substantially less than the sentences in the comparator cases the Crown refers to.

Uplift for failing to stop

[57]   The issue is whether the one-month sentence of imprisonment for failing to stop should be concurrent rather than cumulative. Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.18 Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.19

[58]   The failing to stop occurred while Mr Gillies was driving while disqualified. The two offences are connected. No doubt, Mr Gillies failed to stop because he was aware he was a disqualified driver. However, the two offences are different in kind in that they comprise different forms of criminality. The Judge was therefore not wrong in principle to impose a cumulative sentence.

18     Sentencing Act 2002, s 84(1).

19     Sentencing Act 2002, s 84(2).

No discounts for guilty pleas on Napier charges

[59]   Up to this point I have found no error with the Judge’s sentencing approach (apart from the lack of a discount for remorse which is balanced out by an overly generous discount for time spent on EM bail). However, there is the issue of a discount for Mr Gillies’ guilty pleas to the two Napier charges. In determining an uplift for each of the two charges the Judge did not take into account Mr Gillies’ guilty pleas. I consider a 25 per cent discount should have been given for his early guilty pleas. A 25 per cent discount applied to seven months gives a total discount of two months (rounded up from 1.75 months in Mr Gillies’ favour). A discount of that amount results in a sentence of five months’ imprisonment on the Napier charges instead of seven months. In the context of such a short sentence, a two month reduction is a sufficiently significant adjustment so as to allow the appeal in relation to those two charges.

[60]   Alternatively if the two months is deducted from the overall sentence of 19 months, even though the alteration borders on tinkering, it nevertheless still represents a sufficiently significant adjustment so as to allow the appeal on the two Napier charges.

[61]   Having made that finding it is not necessary to consider the parties’ submissions in relation to the periods of disqualification on the Napier charges. Even though each of the two Napier charges contains two parts (imprisonment and disqualification), the sentence on each charge is indivisible. I have found an error in one part of each of the two Napier charges and as a consequence I will quash the sentences as a whole imposed on those charges.

[62]   I accept Mr Jensen’s submission that the appropriate response is to send the two Napier charges back to the Napier District Court for re-sentencing given the matters Mr Jensen says he would raise (referred to in [27] above).20 Mr Gillies’ guilty pleas remain in place as do the convictions entered on those charges.

[63]   At the hearing the issue of bail was raised. Mr Gillies does not presently have a bail address. I propose to remand him at large with the issue of bail to be addressed

20     Criminal Procedure Act, s 251(2)(c).

when he first appears in the Napier District Court. After his release from custody and until that occurs Mr Gillies will be subject to post-release conditions which will give the necessary oversight by a probation officer.

Result

[64]The appeal is allowed in part:

(a)the sentence of 12 months’ imprisonment and 12 months’ disqualification from driving on the five charges of aggravated careless use of a vehicle causing injury is confirmed;

(b)the sentences on the charges of failing to stop when followed by red and blue flashing lights and of driving while disqualified (third or subsequent) are quashed. Those two charges are remitted back to the Napier District Court for re-sentencing; and

(c)upon release from custody and pending a consideration of bail by the Napier District Court at Mr Gillies’ first appearance, he is remanded at large.

Gordon J