H v Police HC Rotorua CRI 2008-463-68

[2008] NZHC 1622

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-68

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 October 2008

Appearances: O J Brittain for Appellant

R Maze for Respondent

Judgment:      16 October 2008

JUDGMENT OF KEANE J

Solicitors:

H S Edward, Rotorua

Crown Solicitor, Rotorua

H V POLICE HC ROT CRI 2008-463-68  16 October 2008

[1]      On 9 June 2008 H   was sentenced in the District Court Rotorua to 12 months home detention, coupled with conditions that he participate in a series of programs. He was disqualified for one year and his fines, some $7,000 in total, were remitted.

[2]      On this appeal Mr H   contends that the sentence imposed was manifestly excessive.  In  totality it  was disproportionate  to  the  offences  for  sentence,  three offences of driving while disqualified between 1 September 2007and 7 February

2008, and two on the first of those dates of driving in such a way as to lose traction. It did not take account of his youth. It was not the least restrictive sentence able to be imposed.

[3]      It is contended for the police that the sentence imposed, though severe, was properly within the Judge’s discretion. It was not manifestly excessive.

Context

[4]      On 1 September 2007, the first of the occasions on which Mr H   drove while  disqualified,  he  twice  that  day or  that  night  drove  deliberately  in  a  way intending to lose traction, drifting the car by turning it on the handbrake. Each was an instance of driving that was potentially dangerous, as well as an infringement of the law.

[5]      On 3 December, when he was on bail as to the first offence, he drove again while disqualified. This time he accounted for it by saying that he was driving to a funeral. On 7 February 2008 he drove again while disqualified. He gave a false name. He was warned but adhered to the name he gave until it became established that it was that of his brother.

Sentence appealed against

[6]      On sentence the Judge, confronted by this persistent offending and by the fact that Mr H   had offended in this way before, having driven twice before while

disqualified, once in March 2006 and on the second occasion in June 2007, clearly decided that there was a need to bring home to Mr H   that it carried consequences. She decided that a sentence custodial in nature though within the community, was called for. She imposed 12 months home detention.

[7]      The Judge may also, in imposing that sentence, have taken into account that Mr H   had $7,000 fines outstanding. In remitting those she may have set out to impose an alternative sentence, though there was then no report from the Registrar under  s 88  of  the  Summary  Proceedings  Act  1957  to  found  that  exercise  of jurisdiction.

[8]      In the sentence that the Judge imposed for the three driving while disqualified offences, she effectively imposed the maximum sentence open to her. Driving while disqualified on a third or subsequent occasion attracts a maximum sentence of two years imprisonment. Conventionally that equates to a sentence of 12 months home detention. The difference, as has been explained in more than one case, lies in this. Imprisonment attracts a half release date, a sentence of home detention has to be served in its entirety.

[9]      The Sentencing Act 2002 requires that where the offending calls for it, a sentence  at or near the maximum ought  to  be imposed  but  that  is  exceptional: s 8(c)(d). The reason why the full extent of the sentence open is called for, however, must always be made clear; and, unfortunately, the Judge did not say why she thought a maximum term ought to be imposed.

[10]     There were, of course, three offences and each, theoretically, could have attracted  a  distinct  sentence.  The  offences,  though  the  same  in  kind,  were  on different dates. The Judge might conceivably have imposed cumulative sentences. But that could not easily have been justified, I consider, simply on the basis that the two later offences were committed on bail for the first. Something more would have been called for. The principle of totality applied.

[11]     More naturally, I would have thought, a concurrent sentence ought to have been imposed on each. Certainly that would have been more consistent with the

principle of totality. The first offence on 1 September 2007 was aggravated by the manner of driving on the two occasions, which is not to be minimised. But even that offence,  to  my  mind,  would  not  have  come  within  the  category  calling  for  a maximum sentence.

[12]     Even if the Judge had taken into account the concurrent offending, and also the previous offending, Mr H  ’s two previous related convictions, and even if she were concerned by his evolving pattern of offending, she was not confronted with offending in that aggravated category, so often encountered, where many convictions accumulate and there is no respite in sight.

Conclusions

[13]     I am driven to the conclusion that the sentence that the Judge imposed was excessive and though she also remitted the fines, how they were taken into account does not appear from her remarks on sentence and so the sentence cannot be explained in that way either.

[14]     The sentence of home detention was open to the Judge in principle. There is no dissent that it was proper to impose. Mr H   has already served a large part of it and so to revisit it in any other way would be idle. The length of the sentence, however, must, I consider, be reduced.

[15]     A sentence in the vicinity of six months home detention, as counsel agree, lay within the Judge’s discretion. To allow for the fines remitted, however, a seven month term seems to me defensible as well. I set aside the sentence of 12 months home detention. There will be, in its place, a seven month sentence on the same

terms.

P.J. Keane  J