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Hepburn v Police

Hepburn v Police

Case [2023] NZHC 475 9 March 2023

Sentencing

Totality Principle

Concurrent Sentencing

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000193

[2023] NZHC 475

BETWEEN
DOUGLAS KELVIN HEPBURN

Appellant

AND

NEW ZEALAND POLICE

DEPARTMENT OF CORRECTIONS

Respondents

Hearing: 9 March 2023

Appearances:

J M Grainger and E E McClay for the Appellant A R T Garrick for the Respondent

Judgment:

9 March 2023

ORAL JUDGMENT OF GENDALL J

Summary

[1] On 9 November 2022 following a guilty plea, the appellant Douglas Hepburn was sentenced in the Christchurch District Court to six years’ imprisonment and disqualified from driving for five years and six months on the following charges:1

(a)Three counts of receiving property over $1,000;

(b)Two counts of theft over $1,000;

(c)One count of dishonestly taking a motor vehicle;

1 Police v Hepburn [2022] NZDC 22047.

HEPBURN v NEW ZEALAND POLICE [2023] NZHC 475 [9 March 2023]

(d)One count of dishonestly obtaining a document;

(e)31 counts of driving while disqualified;

(f)Five counts of dangerous driving;

(g)12 counts of receiving under $500;

(h)19 counts of theft under $500;

(i)Four counts of failing to stop;

(j)Failing to answer District Court bail; and

(k)Two counts of breach of home detention.

[2]Mr Hepburn now appeals the sentence.

Facts

[3] The majority of the charges Mr Hepburn faced relate to offending which took place between January and March 2022. The remaining charges concerned offending which occurred in May, July and November 2021. The stolen goods Mr Hepburn dealt in included vehicles, number plates, petrol, a brush cutter and power tools. The driving related offences arise from Mr Hepburn driving while disqualified on 31 occasions, failing to stop for flashing police red and blue lights and driving away from police on five occasions. Mr Hepburn also breached the conditions of his home detention on two occasions, including by failing a drug and alcohol screening test.

[4] Mr Hepburn is 31 years of age. He has previously appeared before the courts but has not served a sentence of imprisonment before.

District Court’s Decision

[5] Mr Hepburn, having entered guilty pleas he faced, appeared before Judge AA Couch in the Christchurch District Court on 9 November 2022 for sentencing.

[6] Judge Couch began by canvassing the charges Mr Hepburn appeared for, noting the large volume. He took the lead charges as those carrying maximum penalties of seven years’ imprisonment. There were seven such charges. For the totality of these seven charges, the Judge adopted a starting point of two years and eight months’ imprisonment.

[7] The Judge then considered the 31 charges of driving while disqualified. Each of these charges carries a maximum penalty of two years’ imprisonment. For the totality of the 31 charges, the Judge adopted a starting point of four years’ imprisonment.

[8] Next, Judge Couch considered the five charges of dangerous driving and adopted a starting point of six months’ imprisonment, noting the danger Mr Hepburn posed to road users. The Judge applied no uplift for the four charges of failing to stop since they are fine only…

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 Hepburn v Police

Details

AGLC: Hepburn v Police [2023] NZHC 475
Case: [2023] NZHC 475
Decision Date: 9 March 2023

CaseChat Overview and Summary

The case of Hepburn v Police involves an appeal by the appellant, Douglas Kelvin Hepburn, against his sentence imposed by the Christchurch District Court. Mr Hepburn was sentenced to six years' imprisonment and disqualified from driving for five years and six months following a guilty plea on multiple charges including receiving property over $1,000, theft over $1,000, dishonestly taking a motor vehicle, and driving while disqualified. The appellant's appeal focuses on the severity of his sentence, specifically the length of the imprisonment term and the driving disqualification period. The legal issues in this case revolve around whether the District Court Judge erred in calculating the starting point for the sentence and the appropriateness of the driving disqualification period.

The High Court found that while the District Court Judge considered the totality of the charges, the starting point for the sentence was excessive due to the connected nature of the offending. The Court adopted a more concurrent sentencing approach, considering the interconnectivity of the charges and the principle of totality. The High Court also found that the driving disqualification period was excessively long and did not allow for Mr Hepburn to obtain his licence during his parole period, which could facilitate his rehabilitation. The Court substituted the original sentence with one of four years and seven months' imprisonment and reduced the driving disqualification period to one and a half years from his release from prison.

Orders