Gray v Police - [2018] NZHC 103

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000042 [2018] NZHC 103

BETWEEN
LEONARD GRAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 February 2018

Appearances:

D W Hart for Appellant
M B Smith for Respondent

Judgment:

12 February 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 12 February 2018 at11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
D W Hart, Whangarei
Crown Solicitor, Whangarei

GRAY v NEW ZEALAND POLICE [2018] NZHC 103 [12 February 2018]

Introduction

[1] The appellant, Mr Gray, appeals a sentence of two years and two months’ imprisonment imposed on him by Judge N R Dawson in the District Court at Dargaville on 6 September 2017.1

[2] The sentence was imposed after Mr Gray had entered guilty pleas to the following charges:

(a) Driving while disqualified (third or subsequent offence) x 2;2

(b) Receiving (property valued at over $1,000);3

(c) Reckless driving;4

(d) Failing to stop;5

(e) Failing to stop to ascertain injury;6

(f) Possession of an instrument for conversion;7 and

(g) Breach of community work.8

[3] Mr Gray argues that the sentence imposed is manifestly excessive.

1      Police v Gray [2017] NZDC 19980.
2      Land Transport Act 1998, s 32(1)(a). As per s 32(4), the maximum penalty is imprisonment for a term not exceeding two years or a fine not exceeding $6,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for one year or more.
3      Crimes Act 1961, s 246(1). As per s 247(a), the maximum penalty is imprisonment for a term not exceeding seven years.
4      Land Transport Act, s 35(1)(a). As per s 35(2), the maximum penalty is imprisonment for a term
not exceeding three months or a fine not exceeding $4,500. The court must also order the person to be disqualified from holding or obtaining a driver licence for six months or more.
5      Land Transport Act, s 52(1)(c). As per s 52(2), the maximum penalty is a fine not exceeding
$10,000.
6      Land Transport Act, s 36(1)(c). As per s 36(2), the maximum penalty is imprisonment for a term not exceeding five years or a fine not exceeding $20,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for one year or more.
7      Crimes Act, s 227. The maximum penalty is imprisonment for a term not exceeding one year.
8      Sentencing Act 2002, s 71(1)(a). The maximum penalty is a term of imprisonment not exceeding three months or a fine not exceeding $1,000.

Factual background

[4] On 15 March 2017, Mr Gray was convicted and sentenced in the Dargaville District Court for driving whilst disqualified. He was further disqualified for a period of six months.

[5] This disqualification notwithstanding, the following day Mr Gray was pulled over by the police while he was driving.

[6] Some two and a half…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gray v Police

Details

AGLC: Gray v Police [2018] NZHC 103
Case: [2018] NZHC 103
Decision Date: 12 February 2018

CaseChat Overview and Summary

Leonard Gray, the appellant, appeals against the sentence imposed on him by the District Court at Dargaville, New Zealand, on 6 September 2017. The sentence was imposed after Mr Gray entered guilty pleas to various charges including driving while disqualified, receiving property valued at over $1,000, reckless driving, failing to stop, failing to stop to ascertain injury, possession of an instrument for conversion, and breach of community work. Mr Gray argues that the sentence of two years and two months' imprisonment is manifestly excessive.

The court was required to decide whether the sentence imposed by the District Court was manifestly excessive and whether a different sentence should be imposed. The appeal against sentence can be allowed if the sentence is manifestly excessive or there is an error in the sentence imposed on conviction. The court considered the principles of sentencing and whether the sentence was within range or manifestly excessive. The court also assessed the starting point for the lead offence and the impact of other concurrent offences.

The court found that the approach taken by the District Court was unorthodox but concluded that the end sentence reached was manifestly excessive. The court identified the charge of failing to stop to ascertain injury as the lead offence and set a starting point of 15 months. The court uplifted the starting point by six months to reflect the receiving charge, the reckless driving charge, the failure to stop charge, the possession of an instrument for conversion, and the second driving while disqualified charge. The court further uplifted the starting point by three months for the other driving while disqualified charge and one month for the breach of community work charge, resulting in a total starting point of 25 months. Given Mr Gray's disregard for court-imposed orders and the serious nature of his offending, the court did not consider the totality principle to be offended. The court imposed an end sentence of 18 months, considering the discounts for Mr Gray's guilty pleas and remorse.

The appeal is allowed, and the existing orders made by Judge Dawson are set aside. The new sentences are as follows: 18 months' imprisonment for failing to stop to ascertain injury, three months' imprisonment for each of the two charges of driving while disqualified, one year's imprisonment for receiving, conviction and discharge for failing to stop, one month's imprisonment for possession of an instrument for conversion, and one month's imprisonment for breach of community work. All sentences are to be served concurrently. The community work sentence is cancelled, and Mr Gray's existing fines of $3,754.80 are remitted.

Orders