King v Police - [2019] NZHC 1785

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000060

[2019] NZHC 1785

BETWEEN
MILES GORDON KING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 July 2019

Appearances:

A N D Garrett for Appellant S Bicknell for Respondent

Judgment:

26 July 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] Mr King, the appellant, pleaded guilty to three charges: unlawfully taking a motor vehicle; theft; and driving while his licence was revoked (third or subsequent). On 28 March 2019, Judge Couch sentenced the appellant to three years’ imprisonment and ordered him to pay $1,738.96 in reparation. The appellant appeals this sentence on the basis that the cumulative sentence of 18 months is manifestly excessive for the uplift imposed on the driving whilst revoked. A shorter cumulative sentence to mark the driving would have been appropriate or, in the circumstances as described, a concurrent sentence could have been imposed.

Facts

[2] In the afternoon of 9 January 2019, the appellant was a passenger in a vehicle on Travis Road, Christchurch. He and his companion saw a courier van delivering

KING v NEW ZEALAND POLICE [2019] NZHC 1785 [26 July 2019]

parcels and decided to follow it. When the driver got out to deliver a parcel, the appellant got into the courier van and drove off in it. He took the van to a property where he unloaded 40 or more parcels from it. At the time of this offending, the appellant’s driver licence was revoked.

District Court decision

[3] Judge Couch approached the sentencing in two parts, beginning with the charges for taking the van and the theft of the parcels. His Honour found these property offences were opportunistic and involved no great degree of premeditation. For this offending the Judge adopted a starting point of two years and three months’ imprisonment.

[4] In regard to the charge of driving while his licence was revoked, the Judge considered it was particularly serious that this was the appellant’s 25th unlicensed driving conviction. He therefore imposed an uplift of 18 months for this charge. Having regard to totality, Judge Couch then gave a discount of four months, which resulted in an overall starting point of three years and five months.

[5] The Judge imposed an uplift of two months to account for the fact that the offending occurred while the appellant was subject to release conditions. The Judge also applied a four month uplift to reflect the appellant’s significant history of dishonesty offending. This took the sentence to three years and 11 months.

[6] Judge Couch then gave a 25 per cent discount for the appellant’s guilty plea, resulting in an end sentence of three years’ imprisonment. He also ordered the appellant to pay reparation of $1,738.96.

Principles on appeal

[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Police

Details

AGLC: King v Police [2019] NZHC 1785
Case: [2019] NZHC 1785
Decision Date: 26 July 2019

CaseChat Overview and Summary

Miles Gordon King, the appellant, appealed against his sentence for unlawful taking of a motor vehicle, theft, and driving while his licence was revoked. The District Court Judge imposed a sentence of three years’ imprisonment and ordered the appellant to pay $1,738.96 in reparation. The appellant argued that the cumulative sentence of 18 months for driving while his licence was revoked was excessive. The respondent argued that the sentence was within the range of sentences imposed for similar offending.

The Court found that a starting point of 18 months’ imprisonment for a 25th charge of driving while disqualified or revoked was entirely within range. The Court accepted that the sentence for the driving offence was separate from the sentence for taking the vehicle and theft, but was moderated by a discount for totality. However, the Court found that the Judge erred in failing to impose a 12 month period of disqualification as required under the Land Transport Act and a minimum period of disqualification of 12 months is imposed.

The appeal was allowed in part, and the sentence was modified to include a minimum period of disqualification of 12 months.

Orders