Jonathan v Police

[2019] NZHC 1115

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-39

CRI-2019-409-50 [2019] NZHC 1115

BETWEEN

SAMANTHA LEE JONATHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 May 2019
Appearances:	A McKenzie for Appellant K Courteney for Respondent
Judgment:	21 May 2019

JUDGMENT OF MANDER J

Introduction

[1]    The appellant, Samantha Jonathan, appeals two sentences imposed by the District Court. The first concerned two charges of driving while disqualified, being a third or subsequent offence, and a breach of community detention. Ms Jonathan was also for resentencing as the result of her failure to complete a sentence of community work. Judge Farish imposed a sentence of 16 months’ imprisonment. The second sentencing concerned a charge of possession of methamphetamine, for which Judge Couch imposed a further two months’ imprisonment. The appellant appeals these sentences on the basis they were manifestly excessive.

JONATHAN v NEW ZEALAND POLICE [2019] NZHC 1115 [21 May 2019]

Facts

[2]    The first charge of driving while disqualified (third or subsequent) arose on 21 June 2018. The appellant was followed by police. She was pulled over but fled the vehicle. She was located a short distance away.

[3]    The second disqualified driving charge occurred on 6 November 2018. The appellant was advised by the police that she had to remove her belongings from an address they had been called to, and so she elected to drive. She was subsequently stopped by police, who also discovered 4.1 g of methamphetamine in the appellant’s bag. This lead to the charge of possession for which the appellant was sentenced by Judge Couch.

[4]    The appellant was also convicted for breaching community detention and failing to complete a sentence of community work. These arose from sentences imposed in 2018. The appellant breached her community detention conditions by being late for her curfew on 2 June 2018. She also did not complete her 200 hours of community work, which the appellant sought to explain was because of medical reasons.

District Court decisions

Judge Farish’s sentence

[5]    Judge Farish considered the most serious offences to be the appellant’s sixth and seventh charges of driving whilst disqualified. She adopted a starting point of 12 months’ imprisonment for the more serious of the two offences, and uplifted it by four months for the other. The Judge found the appellant’s breach of community detention was serious. She added two months onto the starting point. A 20 per cent discount was then applied for the guilty pleas. This brought the sentence down to 14 months.

[6]    Judge Farish then turned to the re-sentencing exercise. The Judge noted that the appellant had submitted that her breach was due to medical reasons, and while not entirely convinced by that, Judge Farish accepted there was a “lot going on” for the appellant at that time. Taking a “very gentle approach”, she added another two

months. This made the effective end sentence 16 months’ imprisonment. The appellant was further disqualified from driving for 12 months from 30 September 2019.

Judge Couch’s sentence

[7]    The appellant was subsequently sentenced on the charge of possession of methamphetamine. Judge Couch imposed a further two months’ imprisonment, cumulative on the sentence the appellant was already serving.

Principles on appeal

[8]    An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 The appeal Court will not intervene where the sentence is within the range that can be properly be justified.2 However, this Court will intervene and substitute its own views if the sentence being appealed is “manifestly excessive” or is one which cannot be justified by reference to the applicable sentencing principles.3

The appeal

[9]    Mr McKenzie, for the appellant, submitted that the uplifts applied by both judges were individually and collectively excessive. The 12 month starting point taken by Judge Farish was, in Mr McKenzie submission, a stern response considering the appellant had never previously been imprisoned for disqualified driving. Counsel contended that the uplift of four months for the second charge of driving while disqualified was excessive. The Judge had found there were special circumstances relating to the second driving while disqualified offence and gave no consideration to totality.

[10]   Mr McKenzie further submitted that the two months imposed for the breach of curfew and the further two months imposed in re-sentencing Ms Jonathan for the

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

3      Ripia v R [2011] NZCA 101 at [15].

breach of community work were excessive in light of the degree of the breach, the amount of community detention and community work that had been completed, and the fact that no reduction was given for the guilty plea. He added that no totality assessment had been undertaken in respect of this aspect of the sentencing exercise.

[11]   Mr McKenzie argued that a 12 month starting point would have been appropriate for both disqualified driving charges, with an uplift of two months for the combined breach of curfew and re-sentencing. He argued that a discount of three months should then have been afforded for the guilty plea, resulting in a sentence of 11 months’ imprisonment.

[12]   In regard to the second sentencing by Judge Couch, Mr McKenzie emphasised that the Judge had referred to Judge Farish’s sentencing as “stern”, and had acknowledged that, but for the appellant already having been imprisoned, the charge of possession would not usually warrant imprisonment. Mr McKenzie submitted that, in light of these acknowledgments, the cumulative two month sentence was excessive and that the imposition of only one month would have been appropriate.

Decision

Disqualified driving charges

[13]   I consider Judge Farish’s approach to the starting point for the disqualified driving offending was unremarkable. Ms Jonathan was before the Court for her sixth and seventh convictions for the same offending, having been sentenced the previous year for the same offending, and was currently serving a sentence for her third, fourth and fifth charges of driving whilst disqualified when she was again apprehended for the same offence. Subject to the totality principle, cumulative sentences can and will be imposed for separate consecutive offending of this type.4

[14]   While each case must necessarily turn on its own circumstances, a review of a number of similar cases indicates that the imposition of 12 months’ imprisonment for

4      Samson v Police [2015] NZHC 748.

the appellant’s sixth conviction and the imposition of a four month uplift for the seventh conviction was not out of range:

(a)Peterson v Police – a starting point of 10 months for a sixth charge of driving while disqualified with no aggravating factors was combined with an uplift of seven months for previous convictions.5

(b)Jenkins v Police – a starting point of 12 months was adopted for a sixth charge of driving while disqualified.6 A cumulative starting point of 22 months was taken for a seventh charge of driving while disqualified, which involved speeding and affected road safety.

(c)Haig v Police – a starting point of 10 months was adopted for an eighth charge of driving while disqualified.7

(d)Whitley v Police – a starting point of 10 months was adopted for an eighth charge of driving while disqualified. Uplifts of four months each for ninth and 10th charges of driving while disqualified were applied.8

(e)Osikai v Police – a starting point of 15 months was adopted for an eighth charge of driving while disqualified.9

[15]   The effective starting point of 16 months’ imprisonment for both charges is consistent with the approach taken by the Court of Appeal in Finch v R, where it upheld an uplift of 14 months’ imprisonment to a starting point of six months’ imprisonment for other offending to reflect the appellant’s three driving whilst disqualified convictions, being the offender’s fifth, sixth and seventh such convictions.10

[16]   Though the Judge did not specifically refer to totality at this point, she clearly took that consideration into account by imposing such a comparatively modest

5      Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.

6      Jenkins v Police [2018] NZHC 2055.

7      Haig v Police [2017] NZHC 2751.

8      Whitley v Police [2016] NZHC 1025.

9      Osikai v Police [2015] NZHC 2952.

10     Finch v R [2012] NZCA 446.

sentence for Ms Jonathan’s seventh disqualified driving conviction. The Judge acknowledged the circumstances of the commission of the seventh offence and was prepared to find special reasons to not disqualify Ms Jonathan for that offence, but, as Judge Farish noted, it still represented poor decision-making. The commission of that offence resulted in Ms Jonathan being convicted for seven disqualified driving offences within the period of only two years. That sequence of offending over such a relatively short period was required to be reflected in the length of the sentence imposed.

Breach of community detention charge

[17]   Mr McKenzie submitted that a two month uplift for the breach of curfew whilst Ms Jonathan served her community detention was excessive. However, the breach did not occur in isolation. Between 3 April and 25 May 2018, Ms Jonathan returned late some nine times and on the last occasion was warned that breach action may be taken if she returned late again. She did.

[18]   The maximum penalty for a breach of community detention conditions is six months’ imprisonment.11 Breaches of curfew are taken seriously because they are “the heart of a sentence of community detention”.12 In Duval v Police an uplift of one month was applied for such a breach.13 In O’Hara v Police, two charges of breach of curfew resulted in the imposition of three months’ imprisonment concurrent with each other but cumulative on the sentence imposed for the main charge.14 The sentence imposed by Judge Farish in the exercise of her sentencing discretion, while perhaps stern, was within the available range.

Re-sentencing for breach of community work

[19]   The leading authority for re-sentencing for breaches of community-based sentences is R v Morgan.15 The Court of Appeal in that case stated:16

11     Sentencing Act 2002, s 69G.

12     O’Hara v Police [2012] NZHC 1263 at [24].

13     Duval v Police [2018] NZHC 393.

14     O’Hara v Police, above n 12.

15     R v Morgan [2008] NZCA 232.

16 At [15].

... while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate.

In that case, the Court re-sentenced the offender to two months’ imprisonment for a breach of 150 hours’ community work.

[20]   In L v R, the Court of Appeal approved the imposition of two months’ imprisonment for the purposes of resentencing an offender who breached his sentence of 80 hours’ community work.17 In Garlick v Police, Nation J upheld the cumulative imposition of one month’s imprisonment upon the cancellation of 73 hours community work (80 hours having been the original sentence) and the remitting of nearly $6,000 in fines.18 Based on these decisions, it was not excessive for Judge Farish to re- sentence the appellant to two months’ imprisonment for breach of her 200 hours’ community work. Ms Jonathan had only completed three hours’ work; indeed, as was observed by the Judge herself, the approach was lenient. It appears that course may have been chosen because the appellant had largely been successful in completing the other components of the sentence, namely community detention (despite the breach) and supervision.

[21]   Mr McKenzie submitted that Ms Jonathan should have received credit for her guilty plea on the two months’ re-sentencing. However, any such credit must have already been taken into account at the time she was originally sentenced and was reflected in the length of community work imposed. The re-sentencing exercise did not require such a reduction. Ms Jonathan did receive an appropriate credit for her plea to the breach of community detention which was deducted from the original starting point, of which the two month sentence was a component.

17     L v R [2014] NZCA 41.

18     Garlick v Police [2016] NZHC 572.

Possession of methamphetamine charge and totality

[22]   The appellant was found in possession of 4.1 g of methamphetamine, which is an amount close to the presumptive 5 g for possession for supply. The maximum penalty for possession of methamphetamine is 6 months’ imprisonment.

[23]   Whether an end sentence is manifestly excessive is to be assessed against the sentence ultimately imposed rather than the process by which that sentence has been achieved or its component parts19. Where a combination of cumulative sentences have been imposed the determinate question to be asked will be one of totality. Having regard to the amount of methamphetamine in Ms Jonathan’s possession, I do not consider the imposition of a further cumulative term of two months’ imprisonment resulted in the overall effective sentence of 16 months being manifestly excessive. Nor, standing back and assessing the total period of imprisonment, do I consider it to be wholly out of proportion to the gravity of the overall offending.20

Result

[24]The appeal is dismissed.

Solicitors:

Andrew John McKenzie, Barrister, Christchurch Raymond Donnelly & Co, Christchurch

19     Tutakangahau v R, above n 2, at [36].

20     Sentencing Act 2002, s 85(2).