Kerr v Police HC Christchurch CRI-2011-409-000058

[2011] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000058

ANTHONY KERR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 August 2011

Appearances: AND Garrett for Appellant

T Mackenzie for Respondent

Judgment:      3 August 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      On 19 November 2010 the appellant was sentenced to imprisonment for one year  and  two  months for  driving  whilst  disqualified,  excess breath  alcohol  and careless  driving.    This  was  cumulative  on  a  sentence  in  respect  of  which  the appellant had been recalled as a result of the current offending.   At the time of sentencing there was still around 10 months to be served on the sentence in respect of which the appellant had been recalled.

[2]      This appeal was lodged by the appellant in person.  It seems that there was some confusion as a result of the earthquakes.  Once Mr Garrett became involved he lodged a fresh appeal.   To the extent that this appeal might be out of time the

extension is granted, there being no opposition from the respondent.

KERR V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000058 3 August 2011

[3]      Turning to the offending giving rise to this appeal, the appellant drove in an erratic manner.  Ultimately he drove on the wrong side of the road and then collided with another motor vehicle.  He was found to have 878 micrograms of alcohol per millilitre of blood.

[4]      At the age of 27 years the appellant has 11 previous convictions for driving whilst disqualified.  He first offended in 2003 and has offended in that regard on a reasonably regular basis ever since.  He has two previous drink driving convictions, the first having been in 2004.  He has previously been sentenced to imprisonment for disqualified and drink driving.   Apart from offending of that nature he has a significant number of convictions for breaching court orders.

[5]      The appeal lodged personally by the appellant relied on the ground that the Judge was wrong in saying that this was the appellant’s 12th  conviction and that it was in fact only his 11th  for driving whilst disqualified.   It is apparent from the appellant’s record of previous convictions that the Judge was right.  Consequently, this ground is unsustainable.

[6]      Mr  Garrett argued the appeal on a different basis, namely,  that the total effective sentence of 24 months (14 months on top of the 10 months still to be served) constituted a “very long” sentence which offended the totality principle.  He submitted that the error had occurred because the starting point for the disqualified driving was too high.  On Mr Garrett’s analysis the starting point should have been in the region of 16 months; there should have been a discount of 25% for the guilty plea and a further discount of four months to reflect totality; in the end result the sentence should have been in the region of eight months imprisonment.

[7]      Mr Mackenzie responded that the sentence was not manifestly excessive; it did not offend the totality principle; a cumulative sentence could have been imposed for the drink driving; taking into account both the disqualified driving and drink driving the maximum starting point was actually four years; there could have been an uplift for the previous offending; and that protection of the community was an important consideration.

[8]      In relation to the driving whilst disqualified the Judge started on the basis that this 12th  offence was close to the most serious and justified a starting point of

20 months.   Having then allowed a 25% discount for the guilty plea and a further two months to reflect totality, the Judge arrived at a sentence of one year and two months imprisonment.   A concurrent sentence of the same length was imposed for the excess breath alcohol and the appellant was convicted and discharged on the careless driving.

[9]      While it is true that the total effective sentence of 24 months was stern, it is difficult to see how in all the circumstances it could be properly construed as one that offended the totality principle or was manifestly excessive.  The appellant has persistently defied orders disqualifying him from driving and on his 12th appearance it was clearly open to the Judge to take a dim view of the offending.  I do not accept that the starting point of 20 months for that offending alone was beyond the range available to the Judge.

[10]     On this occasion the appellant had also been drinking and had a high alcohol reading.  His driving was clearly of such a nature that other road users were at risk. He had also offended previously.  It was open to the Judge to consider a cumulative sentence:   Moon v NZ Police[1].   The appellant was probably lucky that the drink driving did not attract a modest cumulative sentence or uplift.  He was also lucky that the fact that he was on Parole for similar offending did not attract an uplift.

[1] Moon v NZ Police CRI-2010-488-7 HC Whangarei 9 July 2010 Heath J

[11]     In the end, as Mr  Garrett correctly stated, the issue is whether the total sentence offended the totality principle.   Despite Mr Garrett’s very considerable efforts on behalf of the appellant, I have not been persuaded that this is the case.  It is difficult to see how a lower sentence could have been realistically imposed.   The appeal is therefore dismissed.

Solicitors:

AND Garrett, P O Box 2889, Christchurch

Raymond Donnelly & Co, P O Box 533, Christchurch