Hughes v Police HC Invercargill CRI-2011-425-000012

[2011] NZHC 998

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000012

BETWEEN  ALLAN HERBERT HUGHES Appellant

ANDPOLICE Respondent

Hearing:         10 August 2011 (by telephone) Counsel:         K M Henry for Appellant

E J Riddell for Respondent

Judgment:      25 August 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

25 August 2011 at 10.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Southern Law, PO Box 1195, Invercargill 9840

Preston Russell Law, Crown Solicitors, PO Box 355, Invercargill 9840

HUGHES V POLICE HC INV CRI-2011-425-000012 25 August 2011

[1]      This is an application for leave to appeal to the Court of Appeal on two questions of law namely:

(a)      Whether a cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level, when the offences have been committed in a single act of driving;  and

(b)If   such   cumulative   sentences   can   be   imposed,   what   are   the circumstances in which such a sentence could be properly imposed.

[2]      The background to this application is that the proposed appellant pleaded guilty and was sentenced on charges of:

(a)       Driving with excess breath alcohol;  and

(b)Driving while disqualified (third or subsequent offence ) pursuant to s 32(1) of the Land Transport Act 1998.

[3]      The proposed appellant was sentenced to three years’ imprisonment.   An

appeal against that sentence was declined.

[4]      A feature of the dismissal was reliance on the judgment of Police v Tawhara.[1]

That decision provides a review of sentencing in this context, and affirms a proposition that cumulative sentences may be appropriate in the abovementioned combination of offending.

[1] Police v Tawhara HC Whangarei CRI-2010-488-000044, 8 September 2010.

[5]      The proposed appellant contends that the High Court decision subject to the leave application and the High Court decision in Tawhara were erroneous insofar as they proceed on the basis that charges of driving while disqualified and driving with

excess  breath  alcohol  trigger  s 84(1).    That  section  provides  for  imposition  of cumulative sentences as follows:

84.      Guidance  on  use  of  cumulative  and  concurrent  sentences  of imprisonment

(1)       Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)       Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)       In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a)      the time at which they occurred; or

(b)      the overall nature of the offending; or

(c)      any other relationship between the offences that the court considers relevant.

[6]      Ms Henry submits that the offending is not different in kind and that the norm for such offending should be a concurrent sentence, particularly when analysing the starting point for such sentences.   Ms Henry accepts that in certain circumstances, the prior driving history of the defendant may be relevant to final sentencing.  But in terms of the starting point, s 84(1) is not engaged.

[7]      Ms Henry also says that the second question is equally a question of law, namely seeking guidance on the appropriate application of discretion, if there is one, to impose a cumulative sentence within this specific context.

[8]      Ms Riddell, for the appellant, says that the answer to the first question is obvious.  Driving while disqualified is a separate offence from driving with excess breath alcohol.  The former offence is about maintaining the integrity of the penalty. The latter offence is concerned with conformity with breath alcohol regulations.

[9]      Ms Riddell also submits that nothing in Tawhara seeks to circumscribe or impose a mandatory guideline on the District Court in terms of the imposition of cumulative  sentences.    It  simply  identifies  an  appropriate  basis  upon  which  a

cumulative sentence may be imposed.  She rejects the notion that Tawhara invokes a presumption  that  cumulative  sentences  shall  be  imposed  and  that  concurrent sentences are the exception rather than the rule.

Assessment

[10]     The reasoning in Tawhara was plainly a factor in the High Court dismissal. Equally, s 84(1) was applied to the effect that driving while disqualified and driving while intoxicated were treated as two separate forms of offending and therefore s 84(1) was invoked and/or invokable.

[11]     For  my  part,  the  answer  to  the  first  issue  is  reasonably  obvious.    The offences, while part of the same act, are different in type and consequence.  Be that as it may, it does not appear that the question has been squarely addressed by the Court of Appeal in this specific context.

[12]     Further, given the frequency with which this type of combined offending appears  to  be  coming  before  the  Courts,  guidance  on  the  interpretation  and application of s 84(1) to this specific combination of offending has merit.  Given also that the primary responsibility for reviewing levels of sentencing rests with the Court

of Appeal,[2] guidance on sentencing in this context will inevitably assist in terms of a

common reference point for both the District Court and the High Court.  It may also obviate the need for appeals in the future.

[2] R v Clifford [2011] NZCA 360, at [56].

[13]     On that basis, I am prepared to grant leave to appeal on the two questions as sought and set out at paragraph [1] of this judgment.

[14]     I note for completeness that the first question of law was not argued before the High Court.   Clearly that jurisdictional question, if relevant, could have been raised either before the District Court or, more likely in light of Tawhara, in this Court.  The regrettable consequence of this is that the Court of Appeal will not have

the benefit of the considered reasoning of this Court.  Nevertheless, for the reasons I

have already given at paragraph [12], I grant leave to appeal.[3]

[3] Consider, Police v Tatana CA229/03, 19 December 2003 at [12]-[14].

Whata J