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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hendry v The Queen

Details

AGLC: Hendry v The Queen [2018] NZHC 884
Case: [2018] NZHC 884
Decision Date: 1 May 2018

CaseChat Overview and Summary

Roderick Hugh Hendry appealed against his sentence for driving while disqualified, challenging the length of the disqualification imposed by the District Court. The District Court Judge had imposed three cumulative periods of 12 months’ disqualification for each of the three charges, totalling 36 months, in addition to a sentence of eight months’ imprisonment. The appellant argued that the sentence was manifestly excessive and that the Judge had overlooked his discretion to impose concurrent periods of disqualification. The appellant further argued that the Judge had misapprehended his discretion in this regard based on an exchange that did not appear in the transcript.

The Court considered the appropriate approach to disqualification periods for aggravated driving while disqualified charges. It concluded that while the usual approach was to impose concurrent periods of disqualification, with the second and subsequent periods being longer to reflect the aggravating factors, cumulative periods were justified in cases where the offences were unconnected in time and did not constitute a continuing course of conduct. The Court held that the Judge’s imposition of three cumulative disqualifications of 12 months was an appropriate sentence in light of the totality of the offending and was not manifestly excessive.

The Court dismissed the appeal, finding that the Judge’s approach was warranted in the circumstances of this case. The Court noted that the appellant’s ability to apply for early reinstatement of his driver’s licence under the Land Transport Act 1908 mitigated the length of the disqualification period. The Court also noted that the appellant’s ability to apply for reinstatement six months from the point of his conviction provided him with the motivation to make changes to his driving behaviour while still ensuring public safety was protected.

Orders