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 months later, Mr Gray offended again. Between Saturday

3 June 2017 and Sunday 4 June 2017, a Mazda motor vehicle was stolen from an address in Greenlane, Auckland.  On 5 June 2017 at 3.38 am, Mr Gray was observed driving the stolen vehicle in central Auckland.  Police officers attempted to stop Mr Gray.   They activated the police vehicle’s red and blue flashing lights and siren.  Mr Gray did not stop.  Rather, he led the police on a pursuit through suburban streets in Parnell, Newmarket and Greenlane. During the pursuit Mr Gray reached speeds of up to twice the posted speed limit.  He travelled through red light signals.

[7]      The pursuit came to an end when Mr Gray crashed into another vehicle.  Mr Gray did not stop to ascertain whether or not the driver of the vehicle he crashed into had suffered injury.  The driver of the other vehicle was injured and he was taken to hospital.  He sustained minor neck injuries and consequent head pain.  The damage caused to the vehicles was significant.

[8]      Following the crash, Mr Gray attempted to flee on foot.  He was subsequently located and arrested.

[9]      A search of the stolen vehicle by the police revealed that its ignition barrel had been forcibly removed. The police found a flathead screwdriver in the foot well of the driver’s seat. This type of tool is commonly used for the conversion of motor vehicles.

[10]     When Mr Gray was spoken to by the police, he stated that he had not stolen the vehicle, but rather that he had received it from a friend knowing that it had been stolen.   When he was asked about the screwdriver, he said that he had got the screwdriver from the friend, and that he had used it to start the car.  He also accepted

that he knew that he was disqualified from driving at the time.  When he was asked why he had failed to stop when the police activated their red and blue flashing lights and siren, why he had driven recklessly and why he had failed to stop following the crash to ascertain whether or not any injury had been caused to the driver of the other vehicle, Mr Gray stated that he was sorry about the crash.  He acknowledged that he should have stopped for the police initially.

[11]     Finally, on 17 June 2017, Mr Gray breached the conditions attaching to a community work order he was subject to at the time.

District Court decision

[12]     After setting out the relevant factual background, and discussing the principles and purposes of sentencing, Judge Dawson identified the lead offending as follows:

[15]      In my view, the lead offences for which you are being convicted today are those committed on 3 and 5 June 2017.  Those are the receiving charges and the driving.  Your failing to stop charge is a fine only matter, but however I regard that as an aggravating feature to your driving recklessly.

[13]     The Judge then proceeded to set a starting point of two years’ imprisonment for the lead offences identified by him.  He then uplifted this starting point by six months to reflect the concurrent offending that occurred on the same dates.  He then further uplifted the sentence by a further six months to reflect “all the other offending”, resulting in an overall starting point of three years’ imprisonment.9  The Judge reduced the sentence by nine months (or 25 per cent) to take account of Mr Gray’s guilty pleas, and then a further month, to acknowledge the remorse that Mr Gray had expressed.10

[14]     Judge Dawson sentenced Mr Gray to a finite sentence of two years and two months’ imprisonment for the charge of failing to stop to ascertain whether there was an injury.  He cancelled Mr Gray’s community work order, and remitted outstanding fines owed by Mr Gray totalling $3,754.80.  He did not make a reparation order, and Mr Gray had no ability to make any payment.  The sentence for each charge was as

follows:11

9 At [17].

10 At [18].

11     At [20]-[22].

(a)      Driving while disqualified (third or subsequent offence) – six months’ imprisonment and disqualified from holding or obtaining a driver’s licence for 12 months from 15 October 2017.

(b)Driving while disqualified (third or subsequent offence) – six months’ imprisonment and disqualified from holding or obtaining a driver’s licence for 12 months from 15 October 2018.

(c)       Receiving (property valued at over $1,000) – one year’s imprisonment.

(d)      Reckless driving – one month’s imprisonment.

(e)       Failing to stop – convicted and discharged.

(f)       Failing  to  stop  to  ascertain  injury  –  two  years  and  two  months’

imprisonment.

(g)Possession   of   an   instrument   for   conversion   –   one   month’s imprisonment.

(h)      Breach of community work – one month’s imprisonment. All sentences of imprisonment were to be served concurrently.

Submissions

[15]     Mr Hart, appearing on behalf of Mr Gray, argued that Judge Dawson erred in dealing globally with all of the 3 to 5 June 2017 offending, and in setting a starting point on that basis. He argued that this resulted in a manifestly excessive end sentence. He submitted that the lead offences – at least when considering the protection of the community – were the two offences of driving while disqualified.  He noted that the maximum penalty for each of those offences was one of two years’ imprisonment, or a fine not exceeding $6,000.  He put it to me that the Judge lost sight of the need to impose the least restrictive sentence available, that a short-term sentence should have been imposed and that this should have been commuted to a sentence of home detention.

[16]     Mr Smith, for the Crown, did not seek to defend the approach taken to the sentencing undertaken by Judge Dawson.   He did, however, suggest that it was conceptually wrong to work backwards, and endeavour to construct a sentence which would have made possible a sentence of home detention.  He accepted that the end sentence could have been constructed in another – and perhaps preferable way – but argued that it could not be said that the end sentence was manifestly excessive, given Mr Gray’s contumacious and repeated disregard of court orders.

Appeals against sentence

[17]     Section 250(2) of the Criminal Procedure Act 2011 provides that the court must allow an appeal against sentence if it is satisfied that:

(a)       for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed. In any other case, the court must dismiss the appeal.12

[18]     A sentence may be set aside where it is manifestly excessive.13    Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached.  The court will not intervene where the sentence is within range.  But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.14

Analysis

[19]     The approach taken by Judge Dawson is unorthodox and, in some respects, difficult to follow. As noted above, the Judge treated all the offending committed on

3 and 5 June 2017 as lead offences, and stated that he was adopting his initial starting point for these lead offences.  He then however imposed a final sentence of two years and two months on the charge of failing to stop to ascertain injury, and imposed

concurrent and lesser sentences on each of the other offences.  Further the Judge did

12     Section 250(3).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

14     Tutakangahau v R, above n 18, at [30].

not refer to any case law when he set his initial starting point of two years’ imprisonment for the 3 to 5 June offending.  He uplifted that starting point by six months to reflect what he referred to as the concurrent offending that occurred on the same dates.  The only other offence committed on those dates was the possession of an instrument for conversion, and it seems that the Judge uplifted the initial starting point by a further six months to reflect that charge.   He then further uplifted the sentence by six months to reflect the other charges.  Those appear to be the initial driving while disqualified (third or subsequent offence) charge, and the breach of community work charge.  No totality assessment was undertaken by the Judge.

[20]     Despite these difficulties, I remind myself that whether a sentence is manifestly excessive depends on the end sentence reached, and not the process by which the sentencing was undertaken.

[21]     In this case, I have concluded that the end sentence reached was manifestly excessive.

[22]     I consider that the charge of failing to stop to ascertain injury was the lead offence.   The maximum penalty for that offence is a term of imprisonment not exceeding five years, or a fine not exceeding $20,000. The Court must also order that the offender be disqualified from holding or obtaining a driver’s licence for one year or more. There is no tariff case for this type of offending, although I note that Gendall J has commented that “the seriousness of this charge has commonly attracted sentences of home detention and imprisonment”.15

[23]     Notwithstanding this observation, it is clear from other authorities that starting points of up to 18 months’ imprisonment can be appropriate.  For example, in Bryant v Police,16 the appellant pleaded guilty to one charge of dangerous driving, and one charge of failing to stop to ascertain injury.  He was driving home in an intoxicated state, and he drove head on into a car driven by the victim.  He initially stopped and spoke to the victim, but then drove away.  The sentencing Judge in the District Court

adopted a starting point of 18 months’ imprisonment on each charge.   On appeal,

15     Kingsley v Police [2016] NZHC 1304 at [27].

16     Bryant v Police HC Blenheim CRI-2011-406-20, 5 December 2011 at [15] and [18].

Miller J upheld the starting points, albeit that for other reasons, he imposed a sentence for home detention.  Similarly, in Dalliessi v Police,17 a starting point of 18 months’ imprisonment was upheld on appeal for this charge. In that case the appellant pleaded guilty to one charge of dangerous driving, one charge of failing to stop to ascertain injury and one charge of assault.  The District Court Judge adopted the failing to stop to ascertain injury charge as the lead offence, and fixed a starting point of 18 months’ imprisonment for this charge.  He uplifted it by a further three months to reflect the assault charge.   On appeal, Panckhurst J upheld the starting point adopted by the District Court Judge, albeit that he reduced the sentence to home detention given the appellant’s rehabilitative prospects.18   In Samuels v Police,19 the appellant was found guilty of one charge of dangerous driving and one charge of failing to stop to ascertain injury.   He was sentenced in the District Court to two years’ imprisonment, and disqualified from driving for three years.  Cooper J dismissed the appellant’s appeal against sentence.

[24]     I prefer these authorities to the authority principally relied on by the appellant, namely Te Huia v Police.20  In my view, given Mr Gray’s record and his contumacious disregard of Court orders, the sentence there imposed of eight months for offending similar to that committed by Mr Gray would not have been appropriate in this case.  I note that Mr Hart did not suggest that the sentence should have been in this range. He suggested that the appropriate sentence should be two years.

[25]     In my judgment, Mr Gray’s offending is less serious than that involved in Bryant, Dalliessi and Samuels.  Mr Gray did not, for example, refuse a request from the victim to call an ambulance as in Bryant. There was no direct contact between the vehicle being driven by Mr Gray and the victim as in Dalliessi and Samuels. It seems from the victim impact statement that the driver of the other vehicle was not seriously injured.  Nevertheless, there was still significant potential for injury.  There was a serious crash and Mr Gray made no attempt to stop to ascertain whether or not the

victim was injured.  Rather, he put his own interests above those of the victim and

17     Dalliessi v Police [2014] NZHC 1136.

18 At [17].

19     Samuels v Police HC Whangarei CRI-2005-488-29, 8 June 2005.

20     Te Huia v Police [2000] NZHC 295.

endeavoured to flee the police, this time on foot.  I would adopt a starting point of 15 months for the charge of failing to stop to ascertain injury.

[26]     I would uplift that starting point by six months, to take into account 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 (third or subsequent offence) charge.   All of this offending was contemporaneous with the failing to stop to ascertain injury charge, and can properly be seen as part of a connected series of offences.  It has had an impact on others, in particular, the owner of the stolen vehicle and the owner of the other vehicle Mr Gray crashed into. I would then further uplift this starting point by three months for the other driving while disqualified charge, and one month for the breach of community work charge, both of which were unconnected in time and circumstance.

[27]     That would take my total starting point to one of 25 months.

[28]     Given Mr Gray’s disregard for Court-imposed orders, and the serious nature of his offending, I do not consider that the totality principle is offended by this starting point.

[29]     There is no dispute that Mr Gray promptly entered guilty pleas and that he is entitled to a discount of 25 per cent to recognise those pleas.   There was also no challenge to the Judge allowing Mr Gray a discount of one month for his remorse.

[30]     I would have imposed an end sentence of 18 months. Accordingly, it follows that I consider that the sentence imposed by the Judge was manifestly excessive.

[31]     The appeal is allowed.  The existing orders made by Judge Dawson are set aside and the following sentences are imposed:

(a)       On the charge of failing to stop to ascertain injury – 18 months’

imprisonment.

(b)On each of two the charges of driving while disqualified (third or subsequent offence) – three months’ imprisonment.

(c)       On the charge of receiving – one year’s imprisonment.

(d)      On the charge of failing to stop – conviction and discharge.

(e)       On the charge of possession of an instrument for conversion – one month’s imprisonment.

(f)       On the charge of breach of community work order – one month’s imprisonment.

All of the sentences are to be served concurrently.

[32]     There was no challenge to the disqualifications put in place by the Judge.  In relation to the charge of driving while disqualified (third or subsequent offence), which occurred on 16 March 2017, Mr Gray is disqualified from holding or obtaining a driver’s licence for 12 months from 15 October 2017. On the second charge of driving while disqualified (third or subsequent offence), Mr Gray is further disqualified from holding or obtaining a driver’s licence for a further 12 months from 15 October 2018.

[33]     The community work sentence is cancelled, and Mr Gray’s existing fines of

$3,754.80 are remitted. I agree with the Judge that this is appropriate, and it will give

Mr Gray the opportunity to start with a clean slate when he comes out of prison.

[34]     I record that Mr Hart did not seek a sentence of home detention.  Mr Gray has been in custody for some time. He either now is, or shortly will be, eligible for parole,

given the reductions in sentence which I have imposed.

Wylie J