Keenan v Police
[2014] NZHC 1894
•12 August 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000056 [2014] NZHC 1894
CHRISTOPHER LANCE KEENAN
v
NEW ZEALAND POLICE
Hearing: 7 August 2014 Appearances:
M Cole and R Mathieson for Appellant
S J Jamieson for RespondentJudgment:
12 August 2014
JUDGMENT OF DUNNINGHAM J
[1] On 28 January 2014, Mr Keenan drove to the ATM to get some cash. Unfortunately, Mr Keenan was disqualified from driving at the time. Indeed he had
10 convictions for the same offence amassed over the previous four and a half years.
[2] The District Court Judge took a dim view of such recidivism. He said “the gravity of your offending in this case must be regarded as near the top of the scale of this offence”, and it required “a steely response”.1 The Judge then took a starting point of 20 months imprisonment and reduced it by the maximum of 25 per cent for a prompt guilty plea, to leave a final sentence of 15 months imprisonment. He also disqualified Mr Keenan from holding a licence for one year and six months from the date of sentencing. Finally, he also refused home detention on the basis that “nothing short of imprisonment will achieve the purposes of sentencing set out in the
Act”.2
1 Police v Keenan DC Christchurch CRI-2014-075-67, 1 July 2014 at [5].
2 At [8].
KEENAN v NEW ZEALAND POLICE [2014] NZHC 1894 [12 August 2014]
[3] Mr Keenan appeals that decision. The issues I must decide are:
(a) Did the Judge err by focusing too strongly on the principles of deterrence and denunciation and insufficiently on the mitigating factors identified in the pre-sentence report?
(b)Is the end sentence manifestly excessive, particularly when regard is had to consistency with other sentences given to offenders with multiple driving while disqualified offences?
(c) Did the Judge err in failing to have regard to s 94 of the Land Transport Act 1998 and the appropriateness of a community- based sentence, in place of mandatory disqualification.
Background
[4] Mr Keenan is only 24, but he has seven convictions for driving while prohibited accumulated between 29 January 2008 and 17 April 2009, and 10 convictions for driving while disqualified accumulated between 30 September 2009 and 3 October 2012.
[5] The sentences imposed on Mr Keenan for the offences of driving while disqualified have ranged from community work and disqualification from driving, through to home detention and imprisonment, with the longest sentence of imprisonment being eight months imposed on 29 July 2011.
[6] Mr Keenan has a number of other convictions, primarily for low level offences including theft, burglary, breaches of release conditions and unlawful taking of motor vehicles.
[7] As the pre-sentence report identifies, the factors “contributing to his offending is his general attitude towards the law and his lack of concern in continuing to be a law unto himself. In terms of risk of reoffending, Mr Keenan was assessed as at high risk, due to his continued bad judgement”.
[8] However, Ms Cole pointed to the recent change in Mr Keenan’s circumstances also outlined in the pre-sentence report. It seems that, for the first time, Mr Keenan wants to change his ways and has been able to indicate remorse for his offending. Importantly he has now moved to the Thames area in the North Island where he is in a more stable relationship, and he and his partner have support from his partner’s grandmother.
[9] Mr Keenan sees his move from Christchurch to the North Island as moving him away from negative influences and as a chance for him to make progress in remaining offence-free. He also maintains a good relationship with his aunt who is supportive of her nephew and who also sees his move to the North Island, and his current relationship, as a sign that he is “starting to wake up to his responsibilities”.
The District Court Decision
[10] As already stated, the District Court Judge placed significant emphasis on the defendant’s 10 previous convictions for driving while disqualified and, before that, his six convictions for driving while prohibited. The Judge acknowledged the requirement to have regard to all the purposes and principles of sentencing in the Sentencing Act 2002, including the principle that he should impose the least restrictive outcome that is appropriate in the circumstances.3 However, he balanced that with the other purposes of denunciation and deterrence and, given Mr Keenan’s recidivism, concluded that the gravity of his offending “must be regarded as near the top of the scale of this offence”.4
[11] He then set a starting point of 20 months imprisonment for the offence and did so “taking into account his previous offending, so did not add to that for aggravating features”.5 He then deducted the maximum reduction for the prompt guilty plea leading to a sentence of 15 months imprisonment, plus 18 months
disqualification.6
3 At [4].
4 Under s 32(4) of the Land Transport Act 1998, the maximum penalty for a third or subsequent driving while disqualified offence is two years imprisonment on a $6,000 fine.
5 Police v Keenan, above n1, at [6].
6 At [7] and [9].
[12] As already mentioned, he rejected home detention as appropriate, implicitly deciding that imprisonment was the only option to achieve an adequate deterrence purpose.7
Legal Principles Applying
[13] As is well understood, this appeal must be determined under s 250 of the Criminal Procedure Act 2011. Accordingly, I must allow the appeal if satisfied that, “for any reason there is an error in the sentence imposed on conviction; and a different sentence should be imposed”.8 The words “an error in the sentence imposed” are a codification of existing case law dealing with appeals from summary proceedings, and encompass errors in principle, failure to have regard to relevant matters or having regard to irrelevant matters, or arriving at a sentence that is manifestly excessive.
Did the Judge Err?
[14] Ms Cole made strong submissions about the failure of the District Court Judge to put any weight on Mr Keenan’s remorse and his change in circumstances. She also emphasised his relative youth and the fact he was now endeavouring to put his impulsive, youthful offending behind him.
[15] She also submitted that the Judge had placed too much weight on the “trivial purpose” for him driving on the day of the offence. She says, and I accept, that that should not weigh one way or the other. It is the fact of driving while disqualified which is the relevant element of the offence. If it was done for a compelling reason, that might be a mitigating factor. If it had occurred in conjunction with some other offence or fault in behaviour, such as driving with excess blood alcohol, or causing an accident, then this would be an aggravating factor, but a neutral purpose in driving should not count either way.
[16] She then argued the starting point was too high, and should have been set at around 12 months in light of comparable cases. From that starting point, the Judge
should have taken into account mitigating features, including his remorse and his demonstrated desire to make a fresh start.
[17] Finally she considered the Judge’s focus on denunciation and deterrence drove his decision to impose a prison sentence and to rule out the option of home detention when that would have been appropriate in Mr Keenan’s circumstances. If home detention was imposed, s 94, which allows mandatory disqualification to be substituted by a community based sentence, should have been considered.
Discussion of Issues
[18] The obvious place to begin is with setting the starting point, and in this regard, the maximum period of imprisonment for this offence, two years, sets the outer parameter.
[19] As is often the case in such sentencing exercises, I was referred to a number of cases dealing with sentencing for multiple driving while disqualified offences to suggest that the starting point set was either “well within the range” or “manifestly excessive”.
[20] What did become apparent to me as I reviewed the cases was that there were two approaches to setting the starting point in these sorts of cases. First, there was the approach taken by Duffy J in Peterson v Police,9 where the starting point was set having regard to the specific offence of driving while disqualified and then uplifted for his previous offending, including the previous driving while disqualified offences.
[21] Duffy J carefully explained her reasoning as follows:10
Maximum sentences are reserved for the very worst kind of examples of offending. I consider that a starting point of slightly less than half way between the maximum sentence is appropriate for this offence. For sentencing for most offences, starting points tend to be around the half way mark of the maximum sentence. In this case, apart from the actual driving while disqualified, there is nothing else about the offence that would constitute an aggravating feature of the offending in terms of s 8(a)… I
9 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
consider, therefore, that a sentencing point of 10 months imprisonment is appropriate.
I now turn to consider if there are aggravating factors relating to the offender. This is Mr Peterson’s sixth “driving whilst disqualified” offence. Mr Peterson has acquired 76 convictions over the last nine years. His criminal history shows him to be someone who regularly displays a disregard for authority and the need to obey Court orders. I consider this being his sixth offence of driving whilst disqualified and his criminal history warrant an uplift of seven months. This brings the sentence to 17 months’ imprisonment.
[22] In contrast, other Judges have set the starting point to take into account not just the current offence, but the number of previous driving while disqualified offences. For example, in Maxwell v Police,11 Hansen J said:12
The starting point should reflect not simply the fact of the more serious offence of driving on the third or subsequent occasion but the additional culpability arising from the number and frequency of previous convictions. Ronald Young J made the same point in Drinkwater v Police,13 an appeal against sentence for driving while disqualified on the eleventh occasion, six of them in the last 10 years. The Judge had adopted a starting point for sentence of 10 months with an uplift of six months for the appellant’s past offending of driving while disqualified. Ronald Young J said the following:
I consider the proper approach in sentencing for third or subsequent driving while disqualified charge is to reflect all of the appellant’s previous convictions for driving while disqualified and the start sentence for the current offending. The increase in penalty passed by Parliament for a third or subsequent driving while disqualified charge, is intended to reflect the fact of the appellant’s total previous driving while disqualified record. Accordingly it falls more naturally to consider his total previous driving record and the start sentence for a current driving while disqualified charge. The alternative approach would be to assume the offending was a third offence (the qualifying number), set a start sentence for each offending and then uplift the sentence to reflect the actual number of past disqualified driving offences. That approach would be wholly artificial. Any uplift for past offending would therefore relate to other offending and not for driving while disqualified charge.
(Some citations omitted).
[23] While I prefer the Duffy J approach, as I consider that is more principled, it seems to me that, on either approach, the starting point after taking into account the
previous driving offences will be about the same.
11 Maxwell v Police [2013] NZHC 3172.
[24] In the Peterson case, the starting point was 10 months with an uplift of seven months to reach a total of 17 months. In Drinkwater, an eleventh conviction for driving while disqualified, the starting point was 10 months, with an uplift of six months for the past offending, to reach a total of 16 months, and in Maxwell, Rodney Hansen J accepted as appropriate a starting point of 12 months, uplifted by eight months which encompassed not just the previous driving while disqualified convictions, but also an extensive history of criminal convictions, including offending on bail. This gave a total of 20 months.
[25] Having regard to the range of cases which counsel referred me to, and looking at the starting point arrived at after taking into account the previous offending, the starting point of 20 months is high, but not outside the allowable range.
[26] I think the Judge then, quite properly, considered that that took into account his previous offending, in totality, so that he did not add to that for the aggravating feature of other previous offending.
[27] However, I do think the Judge erred in not taking into account as a mitigating feature, the material in the pre-sentence report which demonstrated, that for the first time, Mr Keenan both indicated remorse and demonstrated that active steps had been taken to break the cycle of offending he had been caught in over the last few years.
[28] I consider that some allowance should have been made in the sentencing process for this and, by not doing this, the Judge was in error. In this regard, I accept that the sentiments expressed to Tua v New Zealand Police,14 are relevant in this
case. In Tua, Woodhouse J said:15
The matter of central importance in my judgment is the uncontested evidence that the appellant had taken active steps of his own volition to change his way of life; to move himself and his partner well away from the area and influences where he had been committing offences.
14 Tua v New Zealand Police [2013] NZHC 2994.
[29] In that case, the Judge substituted a sentence of community work for imprisonment noting the reason for that sentence was to encourage the appellant to take the opportunity to ensure his efforts in turning his life around would continue.
[30] In this regard, I would reduce the sentence by four months to 16 months and then, as the District Court Judge did, apply the 25 per cent discount for a guilty plea. That takes the end sentence to 12 months, not 15 months, a difference which in my view is material.
[31] The next issue to be determined is whether a sentence of imprisonment for Mr Keenan places too much weight on deterrence and denunciation, whereas a sentence of home detention would be the least restrictive outcome that is appropriate in the circumstances.
[32] Section 15A of the Sentencing Act 2002 gives the Court power to impose the sentence of home detention only if:
(a) the Court is satisfied that the purpose or purposes for which sentence has been imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b)the Court would otherwise sentence the offender to a short-term sentence of imprisonment.16
[33] I was directed by Ms Cole to Doolan v R,17 citing R v Vhavha,18 which says:19
In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence.
16 i.e. of two years or less. By s 2(1) Sentencing Act 2002 and s 4(1) Parole Act 2002, a short-term sentence of imprisonment is one of 24 months or less.
17 Doolan v R [2011] NZCA 542 at [37].
18 R v Vhavha [2009] NZCA 588.
19 At [29].
[34] However, on appeal, I must identify whether the Judge erred when sentencing Mr Keenan to a term of imprisonment, having regard to the discretionary nature of the decision.
[35] Here, I found the Judge was in error in not recognising the deduction for the appellant’s remorse and commitment to change. However, the fact that he failed to reflect this in a discount in his sentence, does not mean he has not had regard to the relevant issues. Indeed, it is quite clear, that at [4], [5] and [8] of his decision he has, and has balanced the imposition of the least restrictive outcome appropriate in the circumstances, which included Mr Keenan’s potential for rehabilitation, with the principles of denunciation and deterrent.
[36] Mr Keenan has had less restrictive sentences imposed before and they have had little impact on his offending. While he now displays more maturity and insight, at least in the pre-sentencing report, it remains to be seen whether that translates to a greater respect for the criminal justice system. In all the circumstances, I have no basis for substituting the Judge’s exercise of his discretion as to whether imprisonment or home detention was justified.
[37] The final issue raised on the appeal is whether s 94 of the Land Transport Act
1998 should be engaged. This provides that a Court may impose a community based sentence instead of an order for disqualification if, having regard to:
(a) the circumstances of the case and of the offender; and
(b)the effectiveness or otherwise of a previous order for disqualification made in respect of the offender; and
(c) the likely effect on the offender of a further order of disqualification;
and
(d) the interests of the public,-
The Court considers that disqualification would be inappropriate and that a community-based sentence would be appropriate.
[38] However, given my finding on whether home detention should be imposed instead of imprisonment, this aspect of the appeal is now moot. Consideration of s 94 of the Land Transport Act in the present case is unavailable because I have found that the District Court Judge’s discretion to imprison rather than sentence to home detention should not be disturbed on appeal.
Outcome
[39] The appeal is allowed to the extent that the sentence of imprisonment of
15 months is set aside and, in its place, a sentence of one year is imposed. The period of disqualification is unaffected by this appeal.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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