Hall v Police

[2012] NZHC 2641

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2012-483-8 [2012] NZHC 2641

IVAN JUNIOR HALL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 October 2012 (Heard at Wellington)

Counsel:         D Goodlet for Appellant

J M Woodcock for Respondent

Judgment:      11 October 2012

JUDGMENT OF SIMON FRANCE J

[1]      Mr Hall appeals his conviction for dishonestly using a vehicle for his own purposes.  He also appeals his sentence of two years, ten months’ imprisonment on a number of offences including his seventh and eighth driving while disqualified, and

his fifth and sixth drink driving offence.[1]

[1] New Zealand Police v Hall DC Wanganui CRI 2011-083-002389, 13 March 2012, Judge Cameron; New Zealand Police v Hall DC Wanganui CRI 2011-083-002389,

25 June 2012, Judge Ross.

IVAN JUNIOR HALL V NEW ZEALAND POLICE HC WANG CRI 2012-483-8 [11 October 2012]

Facts – conviction

[2]      Wanganui police were alerted to look for a ute which had allegedly been involved in a road rage incident.  It was located, and the police signalled for it to pull over.  The driver instead sped off and a chase ensued.  Eventually police abandoned the pursuit, and switched to searching for the vehicle.

[3]      The vehicle was located up a driveway on a rural property on the road where it had last been seen. A woman was in the passenger seat.  By the side of the driver’s door, on the ground, were a pile of clothes.  Tracker dogs were used, and Mr Hall was located in trees 250 metres away.  He was wearing only his underpants and was lying face down, seemingly hiding.

[4]      At trial the police led evidence the ute had been stolen six months earlier. Mr Hall was initially charged with stealing it but shortly before the trial it was amended to dishonestly using it.  When stolen the ute was red.  When located it was a poorly painted white with different number plates.  However, the warrant of fitness referred to the previous correct number plate.

Conviction appeal

[5]      At trial Mr Hall testified that he had been at a party.  He got into the vehicle to sleep, and woke up at the place where the vehicle was located.  He awoke at that stage because the woman in the vehicle woke him.  They engaged in sex, hence his state of undress.  Then he saw vehicle lights coming towards where they were, so ran off fearing it was his partner arriving.

[6]      Mr Hall said that a person called Sam had driven the vehicle from the party to where it was found.  He thought it was Sam’s vehicle.  It can be recorded that the tracker dog had searched around the vehicle but found no other scent.  The Judge accepted the evidence that had Sam or anyone else been in the vehicle and left, the dog would have detected their scent.

[7]      The Judge focussed on the issue of whether Mr Hall was the driver.   He decided it was proved beyond reasonable doubt that he was, and no challenge is brought against that conclusion.  However, in convicting Mr Hall of dishonest use of the vehicle the Judge omitted to make an express finding about dishonesty.  He based the conclusion solely on the fact that the vehicle was stolen and Mr Hall was the driver.

[8]      Ms Goodlet accepted that on appeal I am in as good a position as the trial Judge to address this.  The true credibility issue at trial was Mr Hall’s evidence, and the Judge compellingly explained why it was incapable of belief.

[9]      On the evidence there can be no doubt that Mr Hall did not have any belief that he was entitled to be using the vehicle.  The vehicle was not his, and had been stolen.  When the police sought to stop the vehicle, Mr Hall engaged in extremely dangerous driving to avoid detection.  He then exacerbated this with his efforts to hide in the woods. All this points inexorably to guilty knowledge.

[10]     Added to this is the absence of any credible explanation for why he is driving a  stolen  car  concerning  which  he  has  absolutely  no  claim.    Further,  Mr Hall obviously had the keys to the vehicle.  His unexplained possession of the keys serves to establish, beyond any doubt, that he knew he had no right to drive the vehicle and was just dishonestly using it for his own purposes.

[11]     The conviction appeal is dismissed.

Sentence appeal

[12]     Mr Hall was sentenced on two sets of offending.  The first in time occurred in

Napier, offending to which he had pleaded guilty. This involved: (a) driving while disqualified (third or subsequent);

(b)      failing to stop;

(c)       driving     with     excess     blood     alcohol     (third    or     subsequent) (209 milligrams).

[13]     The matters to note about the offending are the high alcohol content, and that the pursuit ended in Mr Hall losing control of the vehicle.   The Judge took nine months’ imprisonment on the drink driving, uplifted by six months for the other offending.  Mr Hall’s “shocking” previous record, principally driving offences, saw three further months added, meaning 18 months.   There was then a four month deduction for the guilty plea, leaving 14 months.

[14]     The  second  set  of  charges  related  to  the  Wanganui  offending  already described.  Mr Hall was on bail for the Napier offending at the time.  The offences on which he was convicted were:

(a)       disqualified driving (third or subsequent); (b)  refusing to provide a sample;

(c)       dangerous driving; (d)   failing to stop; and

(e)       dishonestly using a vehicle.

[15]     A starting point of 12 months’ imprisonment for unlawfully using the vehicle was taken.   There was then added nine months for the other offending, and three months for the fact it was committed on bail, meaning a sentence of two years.  The two sets of offending were made cumulative, leaving a total of 38 months.  This was reduced for totality to 34 months.

[16]     Ms Goodlet submits by reference to other cases that the end sentence is too high, and that no more than two years was appropriate.  She suggests ways that the various steps can be challenged but emphasises the essential complaint is with the total.  In this regard, when compared with other cases, it should be noted it is but the fifth and sixth drink driving offence.  Usually more occasions than that are required

before these sorts of sentences are imposed.   Criticism is also made of the prior offending uplift in the Napier analysis given that the tariff for drink driving already takes into account that it is repeat offending.

[17]     In reply, the respondent engages with the specific criticisms, but submits the overall total, whilst stern, was available.

[18]     From  an  appellate  viewpoint  the  obvious  issue  is  the  last  concept  of “available”.  So long as that can be said, I see no reason to interfere.  Stern is not a concern in an area where offenders continue to put innocent lives at risk with this type of undisciplined, self-indulgent offending.

[19]     Prior to these two sets of offences, in April 2010 Mr Hall had been sentenced to   14 months’  imprisonment   for   virtually   identical   offending   committed   in August 2009.    Following  his  release,  there  was  then  the  Napier  offending  in July 2011  and  the  Wanganui  offending  in  November 2011.    On  any  analysis, considerations of public protection and individual deterrence justify, and indeed I would say mandate, a sentence at the top of the available range.   The public are entitled to the degree of protection the courts can legitimately provide.

[20]     The point of this is to observe that I do not accept that a sentence near the top of the range is properly called stern in circumstances such as this.  It is the correct sentence, for the reasons of individual deterrence and public protection that I have identified. With those observations I turn to whether it was an available sentence.

[21]     Both counsel referred to R v McQuillian.[2]   Mr McQuillian was also sentenced on two sets of charges:

[2] R v McQuillian CA 129/04, 12 August 2004.

(a)       Set  1  –  driving  while  disqualified,  and  excess  breath  alcohol

(750 micrograms).  Mr McQuillian was charged but absconded;

(b)Set 2 – 11 months later, still at large, driving while disqualified and excess blood alcohol (186 milligrams).

[22]     Eventually Mr McQuillian pleaded guilty to both sets of charges.  The latter offences were Mr McQuillian’s eighth for drink driving and tenth for disqualified driving.  He also had a previous conviction for dangerous driving causing death. The Court of Appeal considered cumulative terms of 12 months’ imprisonment did not produce a manifestly excessive sentence.  The individual links of 12 months were

“not out of the ordinary”.[3]

[3] The sentence was reduced by four months for unrelated reasons.

[23]     In the present case, distinguishing features from that case are that Mr Hall had offended in this way on three occasions over a two year period; had recently served jail time prior to the second and third set of offences; offended on the third occasion  while  on  bail  for,  and  only  months  after,  the  second;  had  also  to  be sentenced for a bad case of dangerous driving (while over the limit); had also to be sentenced for two offences of failing to stop; and had also to be sentenced for dishonestly using a car.   As regards that offence, he was driving someone else’s vehicle whilst apparently drunk and doing so dangerously.

[24]     Little more need be said.  By reference to McQuillian, which described the component links of that sentence as not out of the ordinary, the present sentence cannot be challenged.   Reference was made to Clotworthy v Police,[4]  which has provided excellent guidance for many years.   Ms Goodlet emphasised that these were Mr Hall’s fifth and sixth drink driving offences, whereas for Mr McQuillian it was his seventh and eighth.  It was those latter types of numbers that saw the longer sentences.

[4] Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[25]     The  well  known  graph  appended  to  Clotworthy  showing  the  correlation between offence number and sentence has proved equally helpful, but there can be no suggestion that Wild J was promoting some sort of mechanistic increase for each subsequent offence.   The list of factors which he identified is what matters.   For example, in the present case the fact that Mr Hall has offended three times in such a short space, with such alcohol levels and in such a dangerous manner of driving brings protection of the public very much to the forefront.  By contrast someone who

lapses into a seventh offence many years after the sixth might legitimately in a

particular case not be seen to pose such an on-going threat.  As always it depends, but in my view, how many times the particular offence has been committed, is a relevant factor, but no more.

Conclusion

[26]     The appeals against sentence and conviction are dismissed.

Simon France J

Solicitors:

D Goodlet, Barrister & Solicitor, Wanganui, email:  [email protected]

J M Woodcock, Armstrong Barton, Wanganui, email:  [email protected]