Hotton v Police
[2014] NZHC 1968
•20 August 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-64 [2014] NZHC 1968
DOUGLAS JASON HOTTON
v
NEW ZEALAND POLICE
Hearing: 19 August 2014 Counsel::
A Frank for Appellant
M J Ferrier for RespondentJudgment:
20 August 2014
JUDGMENT OF WILLIAMS J
[1] Mr Hotton was sentenced on 25 June 2014 in the Lower Hutt District Court as follows:
(a) driving while disqualified (third or subsequent): four months’ community detention; 12 months’ intensive supervision; one year disqualification commencing 22 January 2015;
(b) dangerous driving: 12 months’ intensive supervision; one year
disqualification commencing 22 January 2016; and
(c) failure to stop when followed by a police car with flashing lights:
$4,000 fine, three months’ disqualification commencing 22 January
2017.
HOTTON v NEW ZEALAND POLICE [2014] NZHC 1968 [20 August 2014]
[2] In the District Court the Judge imposed the disqualification periods cumulatively to begin in January next year, the date on which a pre-existing disqualification penalty is due to expire. The effect of the cumulative approach to sentencing is that Mr Hotton received a total disqualification period of 27 months which, because of its late start, will not expire until 27 April 2017.
[3] Mr Hotton appeals the disqualification element of his sentence arguing that the Judge ought not to have imposed those penalties cumulatively and that, even if that is wrong, the totality principle dictates that the period of disqualification is manifestly excessive.
[4] The police argue that it was open to the Court to impose cumulative disqualifications and that the period of disqualification, while stern, was not excessive.
The facts
[5] The three charges arise from a single incident in the early hours of 2 March
2014. The appellant, who was 20 years old at the time, was driving his car (having been serially disqualified) on Port Road. The police flashed their lights to signal him to pull over. The appellant stopped, but then pulled away as the police approached his car. There was a chase at up to 100km/h in a 50km zone. The appellant turned off his headlights, cut corners and drove on the wrong side of the road in his unsuccessful attempts to avoid capture. The police laid spikes. The appellant drove through them and then onto the wrong side of the road through a roundabout before finally being successfully stopped.
[6] The appellant is no stranger to this kind of offending. The police submissions record relevant criminal history as follows:
(a) driving while disqualified (third or subsequent) on 29 July 2013; (b) careless operation of a vehicle on 1 December 2012;
(c) driving with excess blood alcohol causing injury on 1 December
2012;
(d) failing to stop for red and blue flashing lights on 5 January 2011; (e) driving while license suspended on 5 January 2011;
(f) dangerous driving on 5 January 2011; and
(g) driving while license suspended on 2 December 2010.
[7] In addition, the appellant’s last appearance (bar this one) for sentence on a charge of driving while disqualified (third or subsequent) was on 9 September 2013. On that occasion a sentence of 12 months’ disqualification and 100 hours’ community work was imposed.
The decision in the District Court
[8] That history of offending explains the tone of exasperation in the sentencing
Judge’s sentencing remarks. For example, on the failing to stop count he said:1
You cannot be sentenced to anything more than a fine and yet you are typical of those young drivers who think nothing about fines, do not bother to pay them and if you do, pay them on some sort of pathetic drip feed. [The appellant pays $25 a week from his benefit to cover previous fines.]
This Court does not set the appropriate sentences. That is a matter for Parliament. Whether or not anybody intends to do anything about that or not I do not know but I am not going to pretend that that offence should not have a realistic penalty simply because the only penalty given to me by parliament is one of a fine.
[9] He also noted:2
… the community is rightly concerned and, in fact, sick and tired of these, so called “police chases”. It annoys me that that is the way they are always described. They are not police chases, they are offenders trying to escape in motor vehicles and that is exactly what you were doing.
1 At [3] and [4].
2 At [2].
[10] In respect of the (undeniably hefty) $4,000 fine, the Judge considered the question of whether there was the means to pay as required by s 14 of the Sentencing Act. He said:3
Over your working life you will be able to pay that amount and I do not propose to exercise that discretion to waive that fine because in my view that would send exactly the wrong signal. If the law makers believe that I am approaching this in the wrong way then they are welcome to change the law.
[11] Finally the Judge spent a significant time ramming home the cumulative nature of the disqualification penalties imposed and he underlined the sternness of that aspect of his sentencing in the following terms:4
That is a hell of a long time and you deserve every minute of it and if you drive while disqualified again, the next step will be prison and you can explain that to your partner and to your child to be born soon.
Appeals generally
[12] This Court’s discretion on appeal is governed by s 250 of the Criminal Procedure Act 2011. An error must be found, but the pre-existing law as to the kind of error necessary remains intact: errors of law, failure to take account relevant factors, taking into account irrelevant factors and other errors of principle that render sentences manifestly excessive.5
[13] Appellate courts may not simply substitute their own view for that of the original sentencing tribunal. The focus is on the final sentencing outcome and not necessarily on the methodology by which the sentencing Court got there. An error, if one is found, must be a material error.
Cumulative disqualification?
[14] The appellant argues that since all charges arose from a single set of events, the Court should have imposed concurrent sentences. The appellant submitted that this is what the Judge appeared initially to be doing before shifting to a cumulative
approach. The Crown argued that cumulative sentences were available to the Judge
3 At [5].
4 At [9].
5 See generally Tutakangahau v R [2014] NZCA 279.
in light of s 84 of the Sentencing Act 2002 because, although they arose from a single incident, the offences were different in kind – failing to stop and driving while disqualified raised issues of compliance with Court orders and the administration of justice, while dangerous driving is directed towards public safety.
[15] In my view, it was open to the Judge to impose cumulative periods of disqualification. It is true that the starting point is to adopt a concurrent approach,6 but as s 84(1) makes clear, cumulative sentences are available where offences are “different in kind, whether or not they are a connected series of offences.”
[16] As the Court of Appeal pointed out in Hughes v R offences going to the authority of the Court and the administration of justice are different in kind to those whose purpose is public safety, so cumulative sentencing may be available even though such offences arise out of the same driving incident.7
Was 27 months’ disqualification manifestly excessive on a totality basis?
[17] The appellant argued that the period of disqualification was excessive in light of the already stern $4,000 fine imposed for failing to stop, and the further penalties of intensive supervision and community detention. Counsel pointed also to this Court’s treatment of similar cases and the appellant’s personal circumstances.
[18] For the police, it was argued that, in light of the appellant’s extensive previous history of similar offending, a stern sentence was justified including a lengthy further period of disqualification.
[19] Although I note at the outset that on the failure to stop count, a cumulative three month period of disqualification was required to be imposed by s 52(5) of the Land Transport Act 1998, I am nonetheless of the view that the learned Judge imposed an excessive period of disqualification in this case. Reference need only be had to the decision of Ellis J in Robarts to establish the point. In that case, the
appellant (who was also 20) was sentenced on charges of failing to stop, dangerous
6 See for example Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005, Heath J
at [31] and Robarts v Police [2014] NZHC 666 at [22].
7 Hughes v R [2012] NZCA 388 at [22]-[23].
driving, wilful damage, failing to remain stopped, and drink driving, which offences arose from two separate incidents three months apart. In each case there was evasion of police, a car chase and a crash causing damage to the vehicles of innocent third parties.
[20] While Mr Robarts had no extensive history of offending – an admittedly crucial element in the case before me – the comparison between the two cases is equalised by the seriousness of Robart’s offending and the fact that the offending occurs more than once. In that case, Ellis J reduced a sentence of 21 months’ disqualification to 16 months. Here, the disqualification is 27 months.
[21] I refer also to the thoughtful comment of Panckhurst J in Williams v Police:8
How long it is appropriate to disqualify offenders for is always a difficult issue. Particularly perhaps with young offenders, long terms of disqualification can be the stepping stone to recidivist driving while disqualified offending. Many Judges in the District Court take the view that disqualification orders need to be kept as short as is attainable, given the purposes of sentencing. Otherwise defendants become involved in a cycle of further offending.
[22] There is, in my view, an element of that in the background of the appellant in this case. Here the learned sentencing Judge openly expressed his exasperation at the appellant’s repetitive offending. I completely understand that perspective. But it led, with respect, to the Judge getting up a head of steam that may have caused him to bury the totality principle under the biting quip “that is a hell of a long time and you deserve every minute of it …”.
[23] The totality principle requires the Court to factor in the accompanying intensive supervision, community detention and monetary penalties that were also imposed. The disqualification period suggests that, perhaps, that was not done. In addition, there ought perhaps to have been more positive consideration of the personal circumstances of the appellant, his attendance, part-time, at a panel and paint course, and the imminent arrival of his first child. Although not before the Judge at sentencing, counsel advised me today that the appellant has a job interview
at McDonalds. If that is true, that too might now count in his favour.
8 Williams v Police HC Christchurch CRI-2007-409-67, 29 March 2007 at [12].
Conclusion
[24] The appeal is allowed. The total disqualification period of 27 months is set aside and a disqualification period of 16 months is substituted. The commencement
date of 22 January 2015 remains unchanged.
Williams J
Solicitors:
Public Defence Service, Wellington
Crown Solicitor, Wellington
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