Graham v Police
[2016] NZHC 3032
•13 December 2016
IN THE HIGH COURT OF NEW ZEALAND
INVERCARGILL REGISTRY
CRI-2016-425-36
[2016] NZHC 3032
IN THE MATTER of an appeal against sentence BETWEEN
SANDY MAREE GRAHAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 December 2016 Appearances:
K A Owen for Appellant
R W Donnelly for Respondent
Judgment:
13 December 2016
JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST PERIOD OF DISQUALIFICATION)
Introduction
[1] This is an appeal against the appellant’s disqualification from driving for 15 months, following conviction for driving while disqualified.
Summary
[2] In the early evening of 1 October 2016, the appellant was stopped turning into her driveway in Otautau. On 26 July 2016, she had been disqualified from driving for one year, following sentencing for EBA offending (3rd and subsequent).
[3] She told police that, although she knew she should not be driving, she was trying to get the exhaust on her car fixed.
GRAHAM v NEW ZEALAND POLICE [2016] NZHC 3032 [13 December 2016]
[4] The appellant was charged with driving whilst disqualified under s 32 of the Land Transport Act 1998 (LTA). On 25 October 2016, she was sentenced by His Honour Judge Callaghan to a further 15 months disqualification (to begin on 25 July 2017, after the expiry of the earlier disqualification), and two months community detention.1
[5] She appeals only the disqualification aspect of her sentence, on the grounds that it was manifestly excessive.
Principles on appeal
[6] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2
[7] It is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of Development:4
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[8]The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5
the Court of Appeal held that:6
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
1 Police v Graham DC Invercargill CRI-2016-025-1963, 25 October 2016.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Ripia v R [2011] NZCA 101 at [15].
4 Larkin v Ministry of Development [2015] NZHC 680.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 At [36].
The District Court decision
[9] The Judge’s sentencing notes are brief and cover only the imposition of the various parts of the sentence. The appellant’s explanation for her offending is mentioned and met with disapproval:
…the fact that the vehicle had to have the exhaust repaired is not something that should concern you because you are not allowed to drive. I do not know why the concern was that it had to be fixed.
[10] Section 31 of the Sentencing Act 2002 imposes a general obligation to provide reasons. The required particularity of those reasons depends on the needs of the individual case and a ground for appeal is not available merely because there has been a failure to refer to specific principles, purposes, or relevant factors.7
Analysis
[11] The appeal rests on the proposition that, as the 15 month disqualification was “well outside the minimum period of disqualification” which applies to this offending, it was manifestly excessive. That proposition alone is not a ground of appeal, as beyond the mandatory requirement that a minimum period be imposed, the extent of disqualification was at the discretion of the Judge.
[12] Under s 32(3)(b) of the LTA, the Judge was obliged to disqualify the appellant for at least six months as the minimum penalty for first and second (as here) convictions for disqualified driving. The minimum penalty for third and subsequent offending is one years disqualification.8
[13] The appellant argues that her offending falls at the lower end of the spectrum, as there was no driving fault on her part. Counsel mentions the early guilty plea, but that was a reflection of the inevitable.
[14] The appellant’s first conviction for driving whilst disqualified was in 2008. Counsel submits that the time elapsed since then should be taken into account. However, the appellant has other driving and road-safety convictions for which four
7 Sentencing Act 2002, s 31(4).
8 Land Transport Act 1998, s 32(4)(b).
separate periods of disqualification were imposed.9 The appellant submits that an “uplift” from the minimum six months disqualification for that/those convictions was a form of double-punishment, of which the Court of Appeal disapproved in Beckham v R.10
[15] There is no evidence that that was the basis on which the Judge imposed the 15 months period of disqualification, but that is one of the difficulties with the brevity of the sentencing notes.
[16] In Ropiha v Police, the Court recognised that the approach to disqualification involves a broader discretion than applicable in other aspects of sentencing.11
[17] As the respondent through Mr Donnelly responsibly concedes, the period of 15 months disqualification was “stern”. There was nothing particularly aggravating about the appellant’s driving as such, but she was driving within seven weeks of her disqualification for EBA offending, and this was her second offence of driving whilst disqualified. There are clear public safety considerations in play in light of her driving history.
Disposition
[18] The lack of judicial reasons for a 15 month period of disqualification is problematic, but not sufficient by itself to found an appeal. The length of disqualification is largely a matter of discretion. However, where a disqualification period well outside the minimum required has not been imposed, for reasons not evident, this Court would not improperly substitute its views for those of the court below. Where:12
…a sentence or order is imposed without reasons, an appellate Court should approach the matter de novo and not be constrained by the usual approach to the exercise of a sentencing discretion.
9 2008- Six months for driving at dangerous speed; 2010: One year two months for EBA and dangerous driving causing injury, 2012- Nine months for EBA offending; 2016- One year for EBA offending.
10 Beckham v R [2012] NZCA 290.
11 Ropiha v Police [2016] NZHC 839.
12 Adams on Criminal Law (online looseleaf ed, Brookers) at SA31.01.
[19] Considering the matter afresh, the appropriate period of disqualification should take into account the relevant principles of sentencing, including balancing the need to impose the least restrictive outcome with the need to provide deterrence and denunciation. When all the circumstances are looked at, including the manner of driving and the appellant’s history, a disqualification period of 15 months was indeed stern but there are two factors militating against the appeal.
[20] First, there are aggravating factors including the appellant’s history and the fact that she was knowingly driving without any justification only weeks after disqualification for serious offending.
[21] Secondly, I consider that the sentence of two months community detention, added to the earlier sentence of community detention, was a lenient response and was imposed to reflect the appellant’s personal circumstances. The overall sentence reflects this lenient approach in conjunction with a stern disqualification. Overall, the sentence is not manifestly excessive.
[22]The appeal is dismissed.
………………………………………….
Nicholas Davidson J
Solicitors:
Keith Owen, Christchurch
Preston Russell Law, Invercargill
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