Holden v Police

[2022] NZHC 100

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA

AHURIRI ROHE

CRI-2021-441-000036

[2022] NZHC 100

BETWEEN

TIMOTHY BROOKS HOLDEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 February 2022

Counsel:

L Grant for the Appellant

J D Bridgman for the Respondent

Judgment:

4 February 2022

JUDGMENT OF GENDALL J

Solicitors:

L Grant, Barrister, Palmerston North J D Bridgman, Barrister, Napier

HOLDEN v NEW ZEALAND POLICE [2022] NZHC 100 [4 February 2022]

Introduction

[1]    The appellant was charged with and pleaded in the District Court to one charge of operating a motor vehicle in a race or in an unnecessary exhibition of speed or acceleration on a road.1 He was sentenced in that Court at Napier on 3 November 2021. His sentence was two-fold, first being disqualified from holding or obtaining a driver’s licence for one year and six months (18 months) and secondly being sentenced to 150 hours’ community work.

[2]    The appellant appeals against the first aspect of his sentence on the basis the disqualification from holding or obtaining a driver’s licence was manifestly excessive. He does not appeal against the sentence of community work.

[3]The Police oppose his appeal.

The offending

[4]    At approximately 11:12pm on a winter’s night, Friday 23 July 2021 the appellant was drag racing another vehicle on Gimblett Road in Hastings, a no exit rural road in the middle of vineyards. He was recorded on police radar as driving at 176 km/h. In explanation the appellant said the police must have got him on the downward change, because he was actually going 195 km/h, hoping to beat the car next to him that he was racing.

District Court decision

[5]    The appellant, as I have noted,  was  sentenced  on  3  November  2021  to 150 hours’ community work and was disqualified from holding or obtaining a driver’s licence for one year and six months.2

[6]    In his sentencing notes, the District Court Judge noted the appellant’s previous convictions:3

1      Land Transport Act 1998, s 36A(1)(a); maximum penalty three months’ imprisonment or $4,500 fine, and minimum disqualification period of six months.

2      Police v Holden [2021] NZDC 23377.

3 At [4].

(a)31 October 2001: dangerous driving;

(b)11 March 2003: careless driving causing injury;

(c)24 September 2004: operating a vehicle carelessly;

(d)10 August 2006: operating a vehicle with sustained loss of traction;

(e)[27 August] 2019: dangerous driving.4

[7]    The Judge also recorded that for the 2019 dangerous driving the appellant received supervision for nine months and a driving disqualification; and that for the 2006 sustained loss of traction the appellant received imprisonment.5

[8]    In sentencing the appellant, the Judge “suspect[ed]” the appellant has a “complex and complicated past.”6 The Judge noted that the appellant has “certainly been on the wrong side of things at times but … [was] not [t]here to be punished for those again”.7 However, the Judge concluded that “on any view of it … [it was] a very, very bad piece of driving.”8

[9]    In disqualifying the appellant from driving for eighteen months and sentencing him to 150 hours’ community work, the Judge noted this was “less than [the Judge] initially had in mind” and that the disqualification would have been at least two years “[h]ad it not been for the situation with [the appellant’s] children”.9

4      The day and month were not recorded in the District Court decision but are available from the records.

5      Police v Holden, above n 2, at [5].

6 At [6].

7 At [6].

8 At [6].

9 At [7].

Submissions

Appellant’s submissions

[10]   Before me, the appellant noted that, for the Court to reconsider the sentence on appeal, the appellant must show an error, an “error” being:10

(a)the application of an incorrect principle;

(b)insufficient or excessive weight being given to a particular factor; or

(c)that the Judge was plainly wrong.

[11]Two grounds of appeal are advanced here:

(a)the disqualification period of 18 months was “manifestly excessive”, especially when coupled with the 150 hours’ community work, making the overall sentence package manifestly excessive;

(b)the Judge erred in not applying a 25 per cent discount to the sentence for the appellant’s early guilty plea.

[12]   The appellant submits the end sentence should have been the 150 hours of community work and imposed but a lesser 12 months’ disqualification, which takes into account:

(a)the appellant’s previous criminal history;

(b)the aggravating and mitigating features of the offending;

(c)the appellant’s personal mitigating factors, namely being able to travel to see his children in Palmerston North; and

(d)a 25 per cent discount for early guilty plea.

10     James v R [2010] NZCA 206 at [17], cited in Manikpersadh v R [2011] NZCA 452 at [10].

Respondent’s submissions

[13]   In response, the respondent contends that a sentence is to be regarded as “manifestly excessive” if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender. The respondent also points out that it is mandatory that the defendant be disqualified for at least six months here. The respondent maintains the length of the disqualification period imposed in this case was appropriate, considering the seriousness of the offending and the appellant’s history of driving-related offending.

[14]   While the Judge in his sentencing notes made no mention of the appellant’s guilty plea, which the respondent acknowledges, Mr Bridgman notes the focus must always be on whether the end sentence was manifestly excessive. While the sentencing exercise could have been approached differently, the respondent suggests, the omission did not lead to a manifestly excessive outcome.

Approach to appeal

[15]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.11 The court must dismiss the appeal in any other case.12 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.13 An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.14

[16]   The present appeal is brought largely on the basis that the sentence was “manifestly excessive”. Section 250(2) makes no express reference to “manifestly excessive”. Whether the concept of a sentence being “manifestly excessive” was relevant to determining appeals under the Criminal Procedure Act was addressed by

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

12     Criminal Procedure Act 2011, s 250(3).

13     Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R [2014] NZCA 279 at [36]

14     Tutakangahau v R [2014] NZCA 279, above n 11, at [36]

the Court of Appeal in Tutakangahau v R.15 In that case, the Court said the concept of “manifestly excessive” was “simply a means of examining the significance of the error to decide whether a different sentence should be imposed.”16 The Court continued:17

The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

[17]   The Court concluded that the introduction of s 250(2) was not intended to change the previous approach taken by the courts and that the concept of “manifestly excessive” was “well-engrained” and had been “part and parcel of the approach to sentencing appeals for a considerable time”.18

[18]   Thus for the appeal to be successful in this case it must be shown that the end sentence of an 18-month disqualification period, taking into account the totality of the sentence and the circumstances of the offending, was manifestly excessive.

Discussion

Disqualification period “manifestly excessive”

[19]   The appellant’s position as I have noted is that the sentence of 18 months’ disqualification from driving, coupled with the 150 hours’ community work imposed, was manifestly excessive here when considering the circumstances of the offending and the entirety of the sentencing package.

[20]   According to the appellant, there is limited case law in relation to unauthorised car racing. The appellant points to Riwai v Police as an example of what Ms. Grant says is an appropriate 18-month disqualification case.19 In that case the appellant was travelling at 212 km/h on State Highway 2 with other vehicles on the road. He had his partner in the car with him. He had previous convictions for similar offending, including a recent sentence of imprisonment for serious driving offending. The

15     Tutakangahau, above n 11.

16 At [32].

17 At [32].

18     At [33] at [35]

19     Riwai v Police [2018] NZHC 2283.

appellant was sentenced to two months’ home detention and disqualified from driving for 18 months. In doing so, the Court in Riwai noted the sentence of home detention: held the appellant accountable; denounced his conduct; acted as a deterrent to himself and others from similar offending; and was the least restrictive outcome available in the circumstances.20

[21]   The appellant suggests the offending in Riwai is the type of offending that did warrant an 18-month disqualification. In contrast, Ms. Grant says that the offending in the present case was substantially less serious than that in Riwai, and that therefore a lesser period of disqualification should have been imposed. It is contended that, unlike in Riwai, the appellant here is not a recidivist driving offender with a serious and recent record of driving offences. Rather, his previous convictions are historic, occurring in the main over 15 years’ prior to the offending.

[22]   While it is true the appellant has not been convicted of car-racing offences previously, he has been convicted on a total of 20 infringements, six of which have been driving-related. This suggests an element of recidivism and a concern that he will engage in such offending again, potentially putting members of the public at risk. I do bear in mind here the attempt to keep disqualification periods as short as reasonably attainable. This is on the basis that disqualification may risk leading to recidivist driving while disqualified, and thus leading to a cycle of further offending.21 It is also nevertheless incumbent on this Court, as the Court of Appeal said in Hitchens v R, to keep dangerous drivers off the road for as long as reasonably possible.22

[23]   The appellant also seeks to distinguish the severity of the risk posed by his conduct here with that in Riwai, namely he maintains that: he was not driving in a residential area; he was alone in his motor vehicle at the time of offending; and he was driving at a time when the road was not used for normal purposes and thus it is claimed he was not putting anyone at risk other than himself and the driver of the other vehicle.

20     Riwai v Police, above n 19, at [22].

21     Williams v Police HC Christchurch CRI-2007-409-67, 29 March 2007 at [12].

22     Hitchens v R CA380/03, 25 March 2004 at [10].

[24]   The respondent takes issue with much of this. Mr Bridgman contends that the present case is not substantially less serious than Riwai; and that in any case the similarities between the cases indicate the 18-month disqualification here was within range. I agree.

[25]   I am not convinced the circumstances in this case are so different from those in Riwai as to suggest the same length of time of disqualification (18 months) in the present case was “manifestly excessive”.

[26]On these aspects, the appellant does properly point out that:

(a)the offence occurred on a straight, back rural road with only one entry point at the opposite end of the road from where the appellant was driving his car;

(b)no one else happened to be present at the site of the offending except the appellant, the other driver and the police officer; and

(c)since the offending occurred at around 11.30 pm, no vineyard workers or other vehicles were likely to have been present.

[27]The respondent however notes that:

(a)the time of the offending meant the appellant was driving in the dark on a winter’s night, increasing the danger of the appellant’s driving;

(b)the road on which the offending occurred does not have street lamps, meaning the appellant was “therefore driving in complete darkness, unable to see any hazards”;

(c)the appellant could not have known for a certainty the road would be empty.

[28]   The respondent suggests the description of the driving in the District Court as “a very, very bad piece of driving” was entirely accurate. While I do not accept the

absence of street lamps may necessarily equate to complete darkness, given the existence of car headlights, I do accept the respondent’s argument that the appellant’s driving posed a real risk to himself, the other driver and the public and was serious.

[29]   The appellant also goes on to contend here that he has already been punished for his previous offending and that such offending should not factor into the present calculation. The appellant points to a “long-standing principle” that a sentencing Judge should not increase the sentencing that would otherwise be imposed merely because of an offender’s previous offending, since that would result in a further sentence for a crime for which the offender has already been punished.23 Similarly, any uplift for previous convictions, the appellant submits, should be proportionate to the circumstances, and bear a reasonable relationship to the sentence imposed for previous offences.24

[30]   I accept the appellant’s submission that he must not be punished for the same offending again. Turning to the judgment on appeal, the Judge did indeed record some of the appellant’s previous driving-related convictions. However, it is clear from the judgment that the Judge had the importance of not punishing the appellant again for that offending clearly in mind. As the Judge noted in his sentencing “you [the appellant] are not here to be punished for those [offences] again today”.25 Rather, it is clear the Judge was wholly concerned that the appellant had committed a “very, very bad piece of driving.”26

[31]   The appellant also contends here that unless there are aggravating features, the minimum disqualification period should be imposed. In Riwai the offending was said to be “one of the most serious cases of its kind, involving speeds over twice the legal limit in the presence of other road users”, which necessitated a sentence close to the maximum penalty being imposed.27 In the present case the appellant acknowledges there is one aggravating feature in these circumstances, and that is the speed at which the appellant was going, namely 171 km/h in an area where the speed limit was

23     R v Casey [1931] NZLR 594 (CA) at 597.

24     Patel v R [2017] NZCA 234 at [61].

25     Police v Holden, above n 2, at [6].

26 At [6].

27     Riwai v Police, above n 19, at [21]

100 km/h. The appellant submits that this means that while the minimum period of disqualification would not apply in this case, an end sentence of 12 months’ disqualification would have been appropriate in all the circumstances and this would take into account the purposes and principles of sentencing as well as being an appropriate and the least restrictive outcome.

[32]   It should also be noted that Riwai dealt with a sentence of both disqualification and home detention, and that the appeal in that case was only against the more serious sentence of home detention. It is therefore arguable as I see it that even if the offending in the present situation is less serious than that in Riwai (as the appellant contends), this is already accounted for in the imposition of a stricter sentence in that case. It is also significant that the appeal in that case (which was against the sentence of home detention only) was dismissed, and that the Court in doing so warned against an appellate court “tinkering” with a sentence.28

[33]   Even if the appellant’s arguments might be accepted, and a 12-month disqualification seen as more appropriate, as I have acknowledged above the test is not strictly what the sentence should have been, but rather whether the sentence imposed was manifestly excessive and outside the range of what was available to the sentencing Judge.

[34]   In her submissions, Ms Grant also refers to Williams v Police, where a disqualification period of two years was found to be excessive and a disqualification period of 18 months was substituted.29 That case involved related charges of dangerous driving and causing intentional damage in relation to an incident in which the appellant tailgated another car, damaging the other car and threatening its occupants. In addition to being charged with dangerous driving, the appellant there was also initially charged with an offence of assault with a weapon, which was later amended to a charge of causing intentional damage. The Judge therefore noted that the period of disqualification in that case was “hardly a straight-forward issue”, given the particular

28     Riwai v Police, above n 19, at [20].

29     Williams v Police HC Christchurch CRI-2007-409-67, 29 March 2007.

circumstances of the case and the interrelationship between the dangerous driving charge and the related charge of causing intentional damage.30

[35]   Nevertheless, the offending driving was described as “about as bad as it gets with this sort of offence [dangerous driving]” and attracted a sentence of two and a half months’ imprisonment in addition to the two-year disqualification from driving.31 Panckhurst J in Wlliams stated that the two-year period of disqualification in that case was “on the high side” when coupled with the additional sentence of 10 months’ imprisonment.32

[36]   Pankhurst J did face the difficulty in the case of ensuring the sentencing package as  a  whole  was  appropriately  tailored,  when  taking  into  account  the  10 months’ imprisonment also faced by the appellant upon the intentional damage charge. That difficulty is not present in the present case. The appellant here is not facing any term of imprisonment but rather an undisputed sentence of 150 hours’ community service. Moreover, there is only one charge at play in the present case here, that being for dangerous driving. Williams v Police in my view is therefore clearly distinguishable here. Although the disqualification in that case was considered to be excessive and reduced by six months, it must be read in the context of its background, involving multiple related charges and a term of imprisonment.

[37]   The appellant also refers to two additional cases where a disqualification period of 12 months or less was imposed: Mihaere v Police and Meaclem v Police.33 In Mihaere the Court refused to accept that the 12-month disqualification was manifestly excessive, but rather “if anything quite the opposite.”34 The Court regarded the 12-month disqualification as “appropriately marking a very bad and dangerous episode of driving”.35 And, to my mind, Meaclem is clearly distinguishable from the current case. The evidence in that case failed to show that the defendant was driving in a manner that was or might have been dangerous to the public.

30 At [1].

31 At [10].

32 At [14].

33     Meaclem v Police HC Palmerston North M 116/83, 18 May 1984.

34     Mihaere v Police HC Wellington AP312/01, 18 December 2001.

35 At [3].

[38]   In response, Mr Bridgman referred to Leaupepe v Police.36 Emphasising the importance of public safety as a concern, in that case the Court said in relation to disqualification:

[8]   The princip[al] objective of disqualification is public safety. Many of the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 can have little application when assessing the length of disqualification and others must receive limited weight because of public safety concerns.

[39]   As a result, the Court suggested the extent of discretion available to a sentencing Judge in prescribing a period of disqualification is therefore less fettered than in respect of a conventional sentencing decision.37

[40]   Similarly, the Court there cautioned against comparing sentences of disqualification against other cases. Pointing out that unlike sentences of imprisonment, Parliament has prescribed a minimum period of disqualification, but no maximum, the Court suggested “[t]here is not a developed body of case law addressing the principles to be applied in fixing the period in excess of the minimum, as there is for fixing appropriate periods of imprisonment within the maximum.”38

[41]   However, the Court in that case did point to guidance from the Court of Appeal as to when a sentence of disqualification will be “manifestly excessive”.  In  Hitchens v R the Court noted two competing considerations:39

(a)long periods of disqualification typically leave little hope for offenders;

(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

[42]   The Court in Leaupepe suggested the task of the sentencing Judge and appellate Court on review is to “effect an appropriate balance between those considerations”, the fixing of which “depends upon the circumstances of the particular case.”40

36     Leaupepe v New Zealand Police [2015] NZHC 1766.

37 At [9].

38 At [7].

39     Hitchens v R, above n 22, at [10].

40     Leaupepe v New Zealand Police, above n 36, at [11].

[43]   In that case, the appellant lost control of his vehicle, slid across the grass verge and hit a fence, causing the passenger’s death. The appellant was over the legal blood alcohol level and his speed was somewhere between 136 km/h and 164 km/h. The sentence imposed was two years’ imprisonment, $5,000 emotional harm reparation and five years’ disqualification. The High Court dismissed the appeal against the disqualification, confirming it was an appropriate length.

[44]   In the present case there is an absence of alcohol and a lack of a victim. However, the offender in Leaupepe was driving at an estimated lower speed than the appellant in this case. The respondent submits it is only a matter of luck that the present offending did not have similar consequences to those that occurred in Leaupepe. In light of the five-year disqualification, the respondent contends that the 18-month disqualification in the present case is justified given the seriousness of the offending.

[45]   The respondent also points to Murdoch v Police. 41 In that case, the 19-year- old appellant was racing another car, reaching speeds of 70 km/h to 80 km/h in a residential area with a 50 km/h speed limit. The appellant had previous driving convictions but the events occurred in broad daylight. The respondent notes the Judge’s statement that “[t]hose who indulge in racing can expect little sympathy from the Courts”.42 The appellant there was sentenced to 50 hours’ community work and disqualified from driving for 15 months, which period was unsuccessfully challenged on appeal. Noting that the offending in that case took place “in safer conditions”, including “broad daylight”, and at a “significantly lower speed”, the respondent suggests the offending in the present case was more dangerous and is more serious and a longer disqualification was justified.

Personal factors

[46]   At sentencing the Judge noted some of the appellant’s previous driving convictions and sentences. The appellant has 28 convictions, six of which are driving- related.43 The appellant also has 20 demerit point infringements incurred between

41     Murdoch v Police HC Invercargill CRI-2007-425-14, 2 July 2007.

42     At [4]

43     Dangerous driving (two convictions), driving with excess breath alcohol, sustained loss of traction, careless driving, and careless driving causing injury.

2002 and 2020. Plainly, the appellant is not to be sentenced or punished for these again, and the District Court Judge made this explicitly clear in his sentencing. However, they are indicative of a risk of future driving offending and a potential risk to the public, particularly since one of these offences occurred as recently as 2019, and was particularly serious as it involved both dangerous driving and excess alcohol. As such, they are relevant to the question of whether a disqualification is necessary to achieve public safety. In my view, an 18-month disqualification in this case cannot be described as manifestly excessive given the importance of doing so.

[47]   The appellant also expressed a need to visit his children in Palmerston North. Obviously, being allowed to drive assists this. The District Court Judge also clearly took this into account in imposing the disqualification period he did. Indeed, the Judge was of a mind to impose a longer sentence had it not been for this factor. As I see it, this again counts against the argument that the 18-month disqualification was “manifestly excessive”, since it was reduced to take some account of the appellant’s personal needs.

[48]   For all these reasons, the first ground of appeal must fail. The disqualification period was not so long as to be described as “manifestly excessive”.

No early guilty plea discount

[49]   The appellant maintains he pleaded guilty at the earliest opportunity available to him and was therefore entitled to a 25 per cent sentencing discount for his early guilty plea. In calculation terms, he maintains, this should have resulted in an end disqualification period of no more than 13 and a half months.

[50]   In response, Mr Bridgman submits that while the Judge made no mention of the appellant’s guilty plea, the focus always must be on whether the end sentence was manifestly excessive. While the sentencing exercise could have been approached differently, the respondent’s position is that the omission did not lead to a manifestly excessive outcome.

[51]   I accept the respondent’s argument here, notwithstanding that the Judge in the District Court might be said to have erred in not specifically mentioning a guilty plea

discount. As Ripia v R and Tutakangahau v R confirm, however, when considering whether a sentence is “manifestly excessive”, the focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.44 Indeed, as I have noted earlier, an appellate court will not intervene unless a sentence is outside the range available to the sentencing Judge.45 This is the established approach to sentencing appeals under s 250 of the Criminal Procedure Act.

[52]   And it is interesting to note too that in Riwai, on appeal this Court also recorded that the sentencing Judge has not expressly refer to the defendant’s guilty plea, but nevertheless Collins J was satisfied that the end sentence imposed was within range and dismissed the appeal.46

[53]This ground of appeal must also fail in the present case.

Conclusion

[54]   As I see the position, the 18-month disqualification imposed here was not so long as to be described as “manifestly excessive”. As Leaupepe noted, when considering disqualification periods there must be wide discretion given to a sentencing Judge.47 Nevertheless, the sentence imposed in this case in my judgment was clearly within range. In my view it was not out of line with other similar cases of offending. In fact, the sentencing Judge was of a mind to disqualify the appellant from driving for a longer period, had it not been for the appellant’s personal situation with his need to visit his children in Palmerston North.48 I am satisfied here the 18-month disqualification period could reasonably be said to achieve the balance described in Leaupepe between limiting the duration of any disqualification while at the same time maintaining public safety, particularly given the appellant’s previous record of driving convictions.

[55]   Although the District Court Judge as acknowledged, did not expressly refer to the appellant’s early guilty plea and failed to explicitly nominate a discount for that,

44     Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 11, at [36].

45     Tutakangahau, above n 11, at [36].

46     Riwai v Police, above n 19, at [23].

47     Leaupepe, above n 35, at [9].

48     Police v Holden, above n 2, at [7].

this does not mean the final sentence imposed was manifestly excessive. The Judge did provide a discount for the appellant’s personal circumstances which presumably took account too of his guilty plea and had initially intended to make the disqualification longer. In light of all of these factors, the absence of an express guilty plea discount does not make the sentence “manifestly excessive”. No significant error occurred in the District Court in the final sentence imposed.

Result

[56]For all the reasons outlined above I am satisfied this appeal must be dismissed.

[57]The appeal is dismissed.

Gendall J