Hawthorne v Police

[2016] NZHC 243

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000007 [2016] NZHC 243

BETWEEN

GARY MICHAEL HAWTHORNE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 February 2016
Appearances:	K Paima for Appellant C J Boshier for Crown
Judgment:	23 February 2016

ORAL JUDGMENT OF DUNNINGHAM J

[1]      Mr Hawthorne appeals a sentence of six months’ imprisonment on one charge of driving while disqualified, third or subsequent (his sixteenth similar offending), imposed by Judge Smith on 26 February 2016.1

[2]     As Judge Smith noted, the circumstances of the offending were rather unremarkable.   Mr Hawthorne’s licence was suspended on 20 March 2015 for his accumulation of demerit points through driving an unlicensed vehicle and speeding fines.  On the night in June 2015, the defendant drove in defiance of his suspension order and when caught, his explanation was “I am only on my way to shops to purchase a bottle of milk”.

[3]      He now appeals on the basis that the end sentence was manifestly excessive.

1      New Zealand Police v Hawthorne [2016] NZDC 1222

Jurisdiction

[4]      Mr Hawthorne is able to appeal the sentence imposed as of right.2   This Court will only disturb the sentence appealed from if the appellant can establish that there was an error in sentence imposed and that a different sentence should be imposed.

The District Court sentencing

[5]      In   sentencing   Her   Honour   elected   a   starting   point   of   six   months’ imprisonment, taking into consideration, she says, that the defendant was driving without fault.   She then uplifted the sentence by three months for the defendant’s prior offences and allowed a maximum discount of three months for his guilty plea. She then considered whether a community based sentence or any supervisory sentence focused on rehabilitation would be appropriate for the defendant.   In considering the principles of ss 7 and 8 of the Sentencing Act, Her Honour held that in this case, despite counsel’s submissions, the principles of denunciation and deterrence required a sentence of imprisonment.  The end sentence imposed was six months’ imprisonment.

The submissions

[6]      The defence essentially says that Her Honour was wrong to conclude that the facts meant that  a lesser sentence  of community detention and  supervision  was precluded by reason of the relevant principles and purposes of sentencing.

[7]      The Crown emphasises that the driving on this occasion was not, as the Judge had assumed, without fault.  In fact, the defendant was pulled over for exceeding the speed limit by doing 67 kilometres per hour in a 50 kilometre per hour zone and the vehicle he was driving was unlicensed and unwarranted.   Furthermore, the defendant’s history shows that while he has avoided convictions for the past five

years he has not kept a clean driving record.

2      Criminal Procedure Act 2011, s 244.

Analysis

[8]      The length of the sentence imposed is not challenged in itself and I note there are many available cases which show that sentences of a year to 18 months for multiple driving while disqualified offences at this level are available.3   Indeed, to a large extent, the sentence handed down by Judge Smith was very lenient.  In setting it, Her Honour was persuaded to take into account the five year gap between the defendant’s last offence and the current offence and she also assumed incorrectly, as I have already said, that there was no driving fault.

[9]      The real issue is whether she took into account the sentencing principle of imposing the least restrictive outcome that is appropriate in the circumstances.4    In this case, Mr Paima has emphasised the decreasing rate of offending over the defendant’s driving history, the absence of aggravating features of the offending itself, his compliance with the strict bail conditions imposed since the offending and his own personal circumstances as outlined in his affidavit.

[10]     The appellant also points to the decision in Tua v Police where the Court, on a similar multiple driving while disqualified case, determined that the principle of imposing  the  least  restrictive  outcome  did,  in  that  case,  warrant  imposing  a non-custodial sentence.5

[11]     However, it is clear from looking at Her Honour’s sentencing notes, that she was aware of the matters which are raised on the defendant’s behalf.  She noted that “while it is true you are gross recidivist and your preparedness to drive when you are not supposed to, in the last five years you have not done so”.  She also noted that while the defendant was not regularly employed, he did have part-time employment and that she should bear that in mind as a benefit to the community.

[12]     In the end, however, the Judge had to make a judgment call as to how the divergent sentencing principles should be addressed.  She was clearly aware of the

3      See  for  example  –  Osikai  v  Police  [2015]  NZHC  2952;  Finch  v  R  [2013] NZCA 446,

Butterfield v R CA 110/97, 23 July 1997.

4      As required by s 8(g) of the Sentencing Act 2002.

5      Tua v Police [2013] NZHC 2994.

competing factors, but on balance, determined that a sentence which focussed on deterrence was warranted on the facts.

[13]     I am not persuaded that in arriving at that conclusion that she was in error, and accordingly, the appeal is dismissed.

Solicitors:

Better Lawyers, Christchurch
Raymond Donnelly & Co., Christchurch