King v Department of Corrections

[2013] NZHC 3378

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000119 [2013] NZHC 3378

MYLES GORDAN JOHN KING Appellant

v

DEPARTMENT OF CORRECTIONS Respondent

Hearing:                   13 December 2013

Counsel:                  P F Johnson and NA Pointer for Appellant

D J Orchard for Respondent

Judgment:                13 December 2013

JUDGMENT OF WHATA J

[1]      Mr King was convicted of two charges of:

(a)       Driving whilst licence was revoked; and

(b)       Breach of release conditions.

[2]      On  the  first  charge,  he  was  sentenced  to  15  months  imprisonment  with standard release conditions for six months after the expiry of the sentence date.

[3]      On the second charge, he was sentenced to six months imprisonment to be served cumulatively on a sentence of 15 months.

KING v DEPARTMENT OF CORRECTIONS [2013] NZHC 3378 [13 December 2013]

[4]      Mr  King  appeals  the  sentence  only  in  regard  to  the  breach  of  release conditions on the ground that it was manifestly excessive because:

(a)      The starting point  adopted by the sentencing Judge was  too high

(eight months);

(b)The sentence was imposed cumulatively rather than concurrently and there was no adjustment for the totality of the offending; and

(c)      A concurrent sentence should have been imposed or a cumulative sentence with an adjustment made to take into account the totality of the offending.

Background

[5]      The relevant facts as to the breach of release conditions are set out in the notes of Judge G S MacAskill as follows:

[3]       As  to  the  breach  of  release  conditions,  you  were  released  from prison on 19 September 2012.  You were subject to nine months, two weeks, three days conditions of release imposed on 7 August 2012 in this Court.

[4]       On 10 August 2012 you were fully inducted into your sentence prior to release from prison and confirmed your understanding of your conditions of release.   On 23 October 2012 you signed and acknowledged your requirement to report on Thursday 8 November 2012 and to report every fortnight at the same time until advised otherwise.

[5]       On 31 January 2013 you breached without reasonable excuse your conditions of release in that you failed to report as directed.

[6]      In terms of sentencing the Judge then states:

[18]      On the breach of release conditions charge, I take the starting point to be imprisonment for eight  months, given your record.   I deduct two months for your guilty plea.   You are sentenced to imprisonment for six months cumulatively on the sentence of 15 months.

[19]     I am satisfied that the total of 21 months is appropriate to your offending.

[7]      At [18] of the sentencing notes the Judge speaks of the total offending.    In order to understand the totality assessment, it is necessary to essay the facts of the

other offending, namely driving while licence was revoked.  The Judge records those facts in the following terms:

[2]       As to the facts:  On 23 February 2010 and 11 May 2011 you were convicted of driving whilst suspended.   Your licence was revoked due to medical grounds.  At about 10.40 on 15 May 2013 you were stopped while driving a Holden motor vehicle on Olliviers Road, Christchurch.  You drove on to the footpath outside the Linwood Rugby Club before pulling in to the rear car park.   When spoken to by the police you admitted the facts as outlined and stated that, “I knew as soon as I jumped into the car I was breaking the law”.

[8]      The Judge also observed:

[6]       As to your prior convictions, you are a recidivist offender.  You have committed a wide range of offences since 1985.  You have received a full range of sentences.  You have accrued 23 prior convictions for driving while disqualified or while your licence was suspended or revoked.

[7]       Currently  your  licence  is  revoked,  as  I  mentioned,  for  medical reasons. When you drive you are a danger to yourself and to the public. You have accrued three prior convictions for breaches of release conditions in

2011 and 2012.  Non-compliance is serious because conditions are imposed as sentences and they are directed at rehabilitation.  Your rehabilitation is in your interests and in the interests of the community.   Your continued offending affirms the need for rehabilitation.

[8]       You behave as if the law does not apply to you. You are about to get a firm reminder that it does apply to you and that if you continue to disregard it you will spend more of your life in prison.

[9]      The Judge goes on to observe:

[13]      I am satisfied that sentences of less than imprisonment are precluded by the seriousness of your offending, your offending record, your unresponsiveness to the sentences previously imposed, the need to denounce your offending and to deter you and others from such offending and the need to protect the public.

[10]     In adopting a starting point the Judge took into account the fact that the appellant was a recidivist offender.

[11]     It is noted by counsel that Mr King suffers from epilepsy. That is said to have impacted on  his  memory and  he would  often  forget  what  date or time he was required to report.  Apparently, to help alleviate the risk of breaching his obligation to report, Mr King arranged to meet with his supervisor on a weekly rather than fortnightly basis.

[12]     On occasion also it is said that he would make unscheduled visits to the

Community Probation Officer when he missed an appointment time.

[13]     With  the  consent  of  all  parties,  I  have  had  the  benefit  of  the  notes  of Corrections dealing with the reporting habits of Mr King and his failure to report. My general impression of the notes is that while Mr King appears to take steps to comply with reporting requirements, including outside of prescribed times, he has a chronic difficulty with reporting on time.  The general apparent reason for this is his medical condition, namely epilepsy, but the excuses given vary from serious issues for friends, including terminal illness of a child, to bus drivers having a stop work meeting.  It seems to me therefore that the apt way to describe Mr King’s reportage, or lack thereof, is sometimes earnest but often erratic.

Appellant’s submissions

[14]     The  appellant’s  counsel  submits  that  whilst  Mr  King’s  reporting  was somewhat intermittent, he largely complied with his obligations upon release.  The obligations ended with his probation officer signing him off at the end of the six month period on 3 July 2013, with no further breach charges laid.

[15]     Counsel concedes that Mr King has three previous convictions for breach of release conditions.   Analogy is made to the case, however, of Forsyth v Police.1

Forsyth is said to have had a history of non-compliance with at least four breaches of release conditions and was sentenced to four months cumulatively on each of two charges of breach of release conditions.    There is also reference to R v Pengelly2 where concurrent sentences were imposed for breach of release conditions and attempted murder, threatening to kill, dishonesty, using a document and theft.

[16]     Citing Kino v Police3 counsel also submit that if proper account is taken of all offending  when  assessing  the  starting  point,  including  the  aggravating  factors

relating to the offences, then it is appropriate for the sentences to be concurrent.

1      Forsyth v Police [2013] NZHC 139.

2      R v Pengelly [2013] NZHC 527.

3      Kino v Police [2012] NZHC 2570.

Crown submissions

[17]     Mrs Orchard, for the Crown, submits that a cumulative approach is entirely within the frame set by s 84 of the Sentencing Act 2002, namely:

84Guidance  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.

...

[18]     The Crown also refers to s 85, namely:

85       Court to consider totality of offending

(1)       Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

...

[19]     The Crown refers me to the fact that Corrections provided an opportunity for the appellant to redeem himself, that is, if he complied fully with the reporting requirements prior to the Court hearing date then he would recommend that he stayed on the existing sentence.  I am advised that regrettably the appellant did not comply fully and his reporting continues to be erratic and unpunctual meaning that progress in his rehabilitation could not be made.

[20]     In those circumstances, and given the Judge’s observations that the appellant appears to behave as if the law does not apply to him, Mrs Orchard submits that a cumulative sentence of imprisonment was appropriate.   Having reflected on matters, however, Mrs Orchard accepts that a lesser sentence of say two months may be more proportionate having regard specifically to the nature of the offending in this case and particularly in light of the Corrections notes now available to us.

Assessment

[21]     The standard threshold test remains that I must be satisfied that the sentence was manifestly excessive.  Unlike the Judge, I have had the benefit of the notes of Corrections dealing with the appellant’s reporting in after the breach.  These do not reflect an arrogant disregard for release conditions.  The appellant clearly struggles with meeting his commitments.  I also think that he was earnest in his attempts to comply on several occasions.  Quite plainly, the appellant has problems dealing with rules but at least in relation to the breach of release conditions I think it is wrong to categorise them as evidence that the appellant behaves as if the law does not apply to him.    Having  said  that,  it  is  an  observation  well  established  in  relation  to  the recidivist driving related offending, fully justifying the starting point adopted and indeed the end point for the driving related offending.

[22]     Returning, however, to the breach of release conditions, with the benefit of the notes, I am going to allow the appeal and reduce the sentence on the breach of release conditions  by adopting a  starting  point  of three months  and  applying a reduction of one month for the guilty plea with the result of a sentence of two months.  By way of comparison the sentences in Forsyth and Pengelly were four and a  half  months  and  six  months  respectively.    But  the  facts  in  both  cases  were materially worse.   Forsyth involved breach of protection orders.   In Pengelly the Judge noted, for example:

[46]     You pre-sentence report indicates that you are unrepentant and have no conception of why you should comply with release conditions.  You have consistently shown, as I have said, contempt for court-ordered conditions and sentences imposed on you as evidenced by your numerous convictions for trying to escape prison, breach of parole and breach of conditions.

[23]     For completeness I wish to commend Corrections for the effort and patience they have demonstrated with Mr King.   This is certainly a case where enough is enough, but, in light of the notes not available to the Judge, a two month sentence is proportionate to the offending.

[24]     As to whether this should be a cumulative or concurrent sentence, I consider that the breach of release conditions and the drink/driving offending is unrelated and a cumulative sentence is appropriate in terms of s 84.   To combine the sentences

would dilute the message that needs to be sent to the appellant that he must stop the driving related offending given the serious risk that he presents to himself and to the public.   Accordingly, the appeal is allowed in part, namely to the extent that the sentence for the breach of release conditions is reduced to one of two months to be served cumulatively with the sentence of 15 months.

Solicitors:

AND Garrett, Christchurch

Raymond Donnelly & Co, Christchurch