Hendry v The Queen

[2018] NZHC 884

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CRI-2018-454-4

[2018] NZHC 884

BETWEEN

RODERICK HUGH HENDRY

Appellant

AND

THE QUEEN

Respondent

Hearing:	10 April 2018
Appearances:	P Murray for Appellant Z Fuhr for Respondent
Judgment:	1 May 2018

JUDGMENT OF GRICE J (Sentence Appeal)

Background

[1]                 On 6 December 2017, Mr Hendry was sentenced in the District Court on three charges of driving while disqualified in its aggravated form.1 The Judge noted that these were the appellant’s sixth, seventh and eight driving while disqualified convictions.

[2]                 The Judge took a starting point of 12 months’ imprisonment. He discounted this by three months for the guilty plea and one month for remorse, resulting in a sentence of eight months’ imprisonment without leave to apply for home detention. The Judge then disqualified the appellant from driving for a total of three years, imposing the minimum 12-month disqualification for each charge cumulatively.

1      New Zealand Police v Hendry [2017] NZDC 27813.

HENDRY v R [2018] NZHC 884 [1 May 2018]

[3]                 The appellant takes no issue with the sentence of imprisonment. However, he appeals against the length of the disqualification.

Grounds of appeal

[4]The appellant appeals on the grounds that:

(a)the District Court Judge had raised, in an exchange with counsel, his view that the disqualification must be imposed cumulatively. Counsel requested the transcript, however that exchange was not recorded.

(b)the sentence is manifestly excessive.

[5]                 Initially the appellant also argued that he would not be entitled to apply for reinstatement of his driver’s licence in a timely manner because the stand-down period during which he is barred from applying starts to run at the beginning of each consecutive disqualification period, not after the first six months of the cumulative disqualification. The Crown pointed out that this submission was in error following an amendment to s 99 of the Land Transport Act 1908. The appellant has abandoned that ground of appeal.

[6]                 It was common ground that the offences were committed while Mr Hendry was disqualified and, in respect of the last two, while he was on bail and subject to a condition not to drive. The appellant accepted these factors aggravated the circumstances of the offending.

[7]                 The appellant pointed to a number of cases supporting his arguments. He submitted that the disqualification should have been closer to 18 months in total.

[8]                 He also pointed to the practice set out in Nicol v Police where the Court noted it could impose cumulative periods of disqualification, but the usual approach was to impose concurrent periods with the second and subsequent periods being longer to reflect the aggravating factors.2

2      Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005 at [30] – [31].

Cumulative or concurrent approach?

[9]                 In Swanston v Police, Mr Swanston drove while disqualified twice in one week.3 He was sentenced to two cumulative periods of 15 months’ disqualification. On appeal, French J held that the imposition of cumulative disqualifications was justified, and the sentence could not be characterised as manifestly excessive. In that case the offences occurred in the same week. In this case the connection is even less as they occurred months apart.

[10]              In Schruba v Police, after noting that the sentencing Judge appeared be under a misapprehension that he was required by law to impose cumulative periods of disqualification, French J stated:4

[13] In fact, the correct position, as explained in Nicol v Police… is that while there is jurisdiction to impose cumulative periods of disqualification, the better and more principled approach is to make them concurrent, with the period of disqualification for the second offence being longer to reflect the aggravating features. Normally, cumulative sentences would be justified where the two charges arose out of two separate transactions, which in this case they obviously did not.

[11]              Finally, the Court of Appeal in R v Wallace noted that the fact that an offence is committed after the grant of bail is an aggravating factor which may justify the imposition of a cumulative sentence on top of the charge for which bail had been granted.5

[12]              I conclude that even if the Judge overlooked the fact he had discretion as to whether to impose cumulative periods of disqualification, his approach was nonetheless warranted in the circumstances of this case. Cumulative periods of disqualification will be justified where, although offences are similar in kind, they are unconnected in time and do not constitute a continuing course of conduct.6 In this case the appellant drove while disqualified on three discrete occasions some months apart, and the latter two occurred while on bail for the first. A cumulative approach is not out of order.

3      Swanston v Police HC Christchurch CRI-2008-409-057, 19 June 2008 at [12].

4      Schruba v Police HC Dunedin CRI-2008-412-30, 25 September 2008 at [13].

5      R v Wallace [1983] NZLR 758 (CA).

6      Sentencing Act 2002, s 84. See also Nicol v Police, above n 2, at [32]; Swanston v Police, above n 3, at [8]; Awatere v Police [2015] NZHC 1374 at [26].

The totality principle

The key issue in this case is whether the Judge failed to properly consider the totality principle. In Swanston, Justice French considered that the sentence of two cumulative periods of 15 months’ disqualification was undoubtedly stern but not manifestly excessive.7 She was influenced by the fact that if the imposition of cumulative disqualifications was justified, then the minimum period the Court could have imposed was two years.8 The imposition of 30 months was, therefore, not manifestly excessive in the circumstances.

[13]              Similar considerations apply in this case. The Judge applied the minimum period of disqualification for each of the offences which were unconnected in time. The aggravating factors of the offending, including offending while on bail and the number of previous similar convictions, also justify the imposition of cumulative sentences. In light of the totality of the offending, a total disqualification of 36 months is at high end but not manifestly excessive.

[14]              In making this assessment, I am mindful of the various observations of the Court that such a lengthy period of disqualification may prove daunting for the appellant.9 Nevertheless, I consider that the appellant’s ability to apply for early reinstatement of his driver’s licence under s 99 Land Transport Act 1908 mitigates this. As noted, the present wording of this section removes the requirement that the application be made six months after a discrete disqualification begins. The appellant will be able to apply for reinstatement six months from the point of his conviction (assuming he does not offend again), rather than having to wait until he has completed 30 months of his disqualification. This possibility provides Mr Hendry with the motivation to make changes to his driving behaviour, while still ensuring that public safety is protected if he does not.

7      Swanston v Police, above n 3, at [12].

8 At [11].

9      See Williams v Police HC Christchurch CRO-2007-409-67, 29 March 2017 at [12]; Dixon v Police

HC Christchurch CRI-2006-409-244, 19 March 2007 at [42].

Conclusion

[15]              The Judge’s imposition of three cumulative disqualifications of 12 months was an appropriate sentence in the circumstances and was not manifestly excessive in light of the totality of the offending.

[16]This appeal is dismissed.

Grice J

Solicitors:

Crown Law Office, Wellington for Respondent