Harris v Police

[2017] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-149 [2017] NZHC 3224

BETWEEN

MARLANNA SHELLEY DIANA HARRIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 December 2017
Appearances:	T Aickin for the Appellant B Hawes for the Respondent
Judgment:	19 December 2017

JUDGMENT OF MANDER J

[1]      The appellant, Ms Marlanna Harris, was sentenced to 11 and a half months’ imprisonment for driving whilst disqualified being her third or subsequent offence, various dishonesty charges, and charges of breaching conditions, failing to report, and failing to answer bail.1     She now appeals that sentence, alleging it is manifestly excessive.

Background

[2]      On 14 December 2016, the appellant was stopped by police while driving and found to be a disqualified driver.  She has two previous convictions of driving whilst disqualified or suspended, relating to offending on 18 November 2015 and 29 January

2016.

1      Police v Harris [2017] NZDC 25189.

HARRIS v POLICE [2017] NZHC 3224 [19 December 2017]

[3]      Ms Harris had in the previous month been released from prison on conditions. In breach of those release conditions, she failed to report on numerous occasions.

Ms Harris was released on bail in respect of these matters and for other subsequent offending.  However, she failed to appear on 15 February and 15 May 2017. This led to the two charges of failing to answer District Court bail.

[4]      On 16 May, Ms Harris failed to report to perform her sentence of community work and was charged with the breach.

[5]      In August, Ms Harris was charged that on 20 April 2017, she, together with an associate, drove a stolen car.   They drove down the driveway of an establishment called the Corporate Club, an event venue which was closed at the time. They had no legitimate reason to be there.   Ms Harris uplifted a package containing pavlovas, valued at $200, and put it in the car.   She then drove off and later abandoned the vehicle.  This resulted in the charges of being unlawfully in a motor vehicle, being unlawfully in an enclosed yard, and theft.

District Court decision

[6]      After setting out the circumstances of the offending, Judge Couch noted the appellant’s extensive criminal history.  It includes various convictions for dishonesty and seven breaches of community-based sentences.  The Judge identified the driving whilst disqualified (third or subsequent) as the lead charge. He considered the gravity of the offending was substantial because it was Ms Harris’s third such offence in a year.  He took a starting point of six months’ imprisonment.

[7]      For the various offences of breaching and failing to answer bail, the Judge applied an uplift of five months.  He found the conduct was serious, and noted this was Ms Harris’s second breach of the same release condition. For the other offending, he applied an uplift of two months.

[8]      Judge Couch noted the aggravating features which included the fact that, apart from the disqualified driving, the offending occurred while Ms Harris was on bail and subject to a sentence.   Ms Harris’s history of dishonesty offending and breaching

orders was also noted. An uplift of one month was applied for each.  This resulted in a starting point of 15 months’ imprisonment.

[9]      The only mitigating factor was the guilty pleas, most of which were entered promptly.  A discount of three and a half months, in respect of which there is no complaint, was applied.   The Judge found Ms Harris could not be relied upon to comply with home detention. She had recently absconded for more than a month while on EM bail, and had failed to answer bail and comply with conditions.

[10]     Based upon a total effective sentence of 11 and a half months’ imprisonment, the Judge imposed the following cumulative terms:

(a)      six months’ imprisonment for driving whilst disqualified, as well as disqualifying her from holding or obtaining a driver’s licence for one year;

(b)three  months  and  14  days’  imprisonment  for  breaching  release conditions;

(c)      two months’ imprisonment for each of the charges of failing to answer bail to apply concurrently with each other; and

(d)concurrent terms of one month’s imprisonment for each of the other offences.

Approach to appeal

[11]     An appeal against sentence may only be allowed if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.2  It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is manifestly excessive and not justified

upon the application of relevant sentencing principles.3

2      Criminal Procedure Act 2011, s 250(2) and (3).

3      Ripia v R [2011] NZCA 101 at [15].

The appeal

[12] Ms Aickin on behalf of Ms Harris submitted the starting point of six months’ imprisonment was excessive and based on incorrect facts. She submitted Judge Couch erroneously considered the driving whilst disqualified charge to be Ms Harris’s third such offence in less than a year. The dates of the offending are set out at [2]. They span a period of 13 months.

[13]     While acknowledging that no tariff applied, Ms Aickin argued that in the absence of any other aggravating features such as alcohol or failure to stop for police, the six months for a third disqualified driving offence was unjustified. Reference was made to Ms Harris’s previous sentence of two months’ imprisonment and that a jump to six months’ imprisonment for one further offence of this type was excessive.  Ms Aickin submitted the sentencing Judge had erred in describing the gravity of the offending as “substantial”.

[14]     Ms Aickin submitted the uplift of five months for non-compliance with various orders was unduly harsh for what she described was Ms Harris’s limited history of offending in this way. Ms Aickin submitted this had resulted in an excessive sentence.

[15]     Lastly, Ms Aickin submitted the Judge erred in failing to take into account the character references supplied to the Court in relation to Ms Harris’s employment, and her “trying personal circumstances”.  The appellant provided her own letter to the Judge on the day of sentence, setting out her personal circumstances, attitude to her past offending and the efforts she had been making up until being remanded in custody.

Analysis

Disqualified driving

[16]      Ms Aickin referred to the case of Iwikau v Police as authority in support of the appeal.4     There, the appellant had six previous convictions for driving whilst disqualified.  For his seventh, he was sentenced to nine months’ imprisonment.  The

sentencing Court adopted a starting point of 10 months’ imprisonment and applied a

4      Iwikau v Police [2013] NZHC 2515.

further uplift of five months for the appellant’s previous convictions. Williams J found the Judge had erred by uplifting the sentence by five months. In substitution, a starting point of 10 months’ imprisonment was applied on appeal, together with an uplift of three months for the appellant’s previous disqualifications.   Due to the personal mitigating circumstances and the early plea discount, an end sentence of 10 months’ imprisonment was reached.  In reaching this conclusion, Willams J observed:5

[a]uthorities ... suggest a sentence of between six and ten months was open to the Judge for a seventh offence. The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences.  For instance, a fifth conviction warranted a starting point of two months, while an eleventh conviction was held to warrant a starting point at or around the maximum of two years.

[17]     In Te Huia v Police, the offender pleaded guilty to two charges of reckless driving, and one charge each of dangerous driving, driving whilst disqualified, aggravated assault, failing to stop and ascertain injury, and failing to stop for red and blue lights.6  The offender in that case had two previous convictions for driving whilst disqualified. This Court allowed the appeal, finding that a 12 month starting point for the disqualified driving was too high and a six month starting point should have been taken.  That resulted in a four month final sentence.  However, the approach taken in that case was influenced by the discrete sentence for the disqualified driving being a component part of an effective overall sentence and was moderated accordingly in order to give effect to totality principles.

[18]     In Muhinda v Police, Dunningham J upheld a starting point of eight months’ imprisonment for the appellant’s fourth conviction of driving whilst disqualified.7  Her Honour observed the starting point was within range in light of the fact the offending occurred within a relatively short period.

[19]     In Henare v R, Nation J, in upholding a sentence of two years and four months’

imprisonment on charges of unlawfully taking a motor vehicle, aggravated driving whilst disqualified, and one charge of receiving, noted without disfavour the District

5 At [13].

6      Te Huia v Police HC New Plymouth CRI-2008-443-31, 10 March 2009.

7      Muhinda v Police [2015] NZHC 2024.

Court Judge’s view in that case that a starting point for a fourth conviction for driving whilst disqualified would normally be six months’ imprisonment.8

[20]     In Townshend v Ministry of Health, Gendall J upheld a cumulative nine month sentence for the appellant’s fourth and fifth driving whilst disqualified convictions.9

He noted the maximum sentence for a third and subsequent offence of this kind is two years’ imprisonment, and that a review of the case law, in his judgment, indicated that nine months in the circumstances was within range. Again, in that case the nine month sentence was a component of an overall sentence involving other discrete offending, whereby the Court was required to have regard to the totality of the final sentence imposed.

[21]     Finally, in Fox v Police, Downs J upheld a starting point of 14 months in relation to the appellant’s fourth and fifth convictions for driving whilst disqualified.10

Downs J considered the starting point was towards, and possibly at, the bottom end of the available range for that offending as a third or subsequent offence.11

[22]     A number of these cases support Ms Aickin’s submission that the six month starting point, as it was described by Judge Couch, was too high. However, other cases indicate the sentence was within range.   The spectrum of judicial view tends to highlight that notwithstanding the need for consistency in sentencing, previous authorities are of only limited assistance and that each case will turn on its individual circumstances and that of the offender.

[23]     When evaluating sentences for disqualified driving regard must be had to two related considerations.  Firstly, that the discrete sentence for disqualified driving may represent a component of an overall sentence that has been adjusted from a global starting point. Secondly, as appeal Courts have repeatedly observed, its focus must be on the overall sentence imposed rather than its constituent parts or the process by

which the sentence has been achieved.12

8      Henare v R [2017] NZHC 2397.

9      Townshend v Ministry of Health [2017] NZHC 1993.

10     Fox v Police [2017] NZHC 573.

11     At [6], referring to Clifford J’s review of the case law in Apiata v Police [2016] NZHC 3119.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Uplifts for other offending

[24]     Ms Aickin submitted the Court was unduly harsh when applying an uplift of five months’ imprisonment for Ms Harris’s “non-compliance charges”.   Ms Aickin placed some reliance on the fact Ms Harris had completed half of her 60 hours community work by the time she was remanded in custody following her breach of EM bail. She also submitted that Ms Harris has only one previous conviction of failing to answer District Court bail in 2012. However, four further convictions of breaching Court release conditions, two of which are representative, must be taken into account. The most recent conviction for breaching Court release conditions was in November

2016.  Ms Harris has also been convicted on a charge of breaching community work and two charges of breaching periodic detention.

Decision

[25]     As Mr Hawes on behalf of the Crown submitted, the ultimate question is whether the eight offences justify the term of 11 and a half months’ imprisonment. While Judge Couch’s description of the disqualified driving offending as “substantially grave” may have overstated the position, Ms Harris had been convicted within a relatively short period of three separate episodes of disqualified driving and the penalty imposed for the third offence still only represents a quarter of the maximum penalty. That may arguably be considered a proportionate response. While high, I am unable to conclude the six month term was outside the range available to the sentencing Court.

[26]     Similarly, while stern, I do not consider the sentencing Court’s uplift of five months for the breach of community work, breach of release conditions and failure to answer District Court bail was outside the range of available sentence, or represents an illegitimate exercise of sentencing discretion.

[27]     There was no challenge to the modest two month uplift for the offending that occurred on 20 April 2017. Had that offending been recognised by a cumulative rather than concurrent two month sentence along with a three month sentence for the non- compliance charges, no challenge could have been made to the respective sentences despite the same overall effect. On appeal, all the offending must be taken into account

when comparing the overall culpability of the offender with the ultimate sentence imposed. When that assessment is undertaken, the challenges to the sentences for the disqualified driving and non-compliance charges, which may otherwise have some foundation, tend to fade.

Discount for remorse

[28]     Ms Aickin submitted insufficient credit was afforded for Ms Harris’s personal mitigating factors and demonstration of remorse.  Section 9(2)(f) of the Sentencing Act 2002 expressly requires a sentencing Court to take into account as a mitigating factor any remorse evidenced by an offender.   In Hessell v R, the Supreme Court observed that:13

Sentencing Judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament, and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful.  But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

[29]     The Court of Appeal, in Brown v R, subsequently opined that:14

[16]     Evaluation and quantification of what was loosely termed “genuine remorse” presents difficulties for a sentencing Judge.  In terms of sentencing principles, remorse can only be relevant in one of two ways – either as a sign of atonement which might lessen the suffering of a victim or his or her family, or as tangible evidence of the offender’s progress along the path to rehabilitation.  Its orthodox expression is in a plea of guilty.  A profession of remorse on its own is likely to carry little if any extra weight.

[30]     I do not consider the sentencing Judge can be criticised for being sceptical of

Ms Harris’s claims of remorse.  She has a long record of criminal offending, dating back to 2001.  Beyond assertions of remorse by Ms Harris in letters written to the Court, a letter from an employer, and a note from a longstanding friend seeking to excuse her breach of electronically monitored bail, the claim of remorse is unremarkable.  While some Judges may have afforded some credit and taken a more

merciful approach, Judge Couch in the exercise of his discretion was not obliged to

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

14     Brown v R [2011] NZCA 95.

make any discrete adjustment in addition to that provided by the full credit for the guilty pleas.

Conclusion

[31]     The end sentence of 11 and a half months’ imprisonment was within the range of available sentence in the exercise of the Judge’s discretion. Ms Harris has failed to satisfy this Court there was an error in the imposition of the sentence and that a different sentence should have been imposed.

[32]     The appeal is declined.

Solicitors:

Trudi Aickin Barrister, Christchurch

Raymond Donnelly & Co, Christchurch