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the appellant, pleaded guilty to three charges: unlawfully taking a motor vehicle; theft; and driving while his licence was revoked (third or subsequent).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 At the time of this offending, the appellant’s driver licence was revoked.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[4]    In regard to the charge of driving while his licence was revoked, the Judge considered it was particularly serious that this was the appellant’s 25th unlicensed driving conviction.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 allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should

be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

Submissions

Appellant’s submissions

[8]    Mr Garrett, for the appellant, submits that the uplift of 18 months for the charge of driving with a revoked licence was manifestly excessive. He points out that while this was the appellant’s 25th unlicensed driving conviction, his last such conviction was in October 2013. Mr Garrett submits this is a substantial gap in offending, albeit interspersed with periods of imprisonment.

[9]    Mr Garrett also notes that the licence revocation was due to the appellant suffering from seizures. He draws the Court’s attention to a letter from the appellant’s general practitioner, Dr McGinnity, which was provided to the Court on sentencing. Mr Garrett submits the letter states that the appellant had remained seizure free for almost twelve months, meaning he was moving towards a possible review of the medical revocation. Furthermore, Mr Garrett contends there was no bad driving involved in the present offending, but simply an impulsive taking of the van and driving it only a few kilometres away.

[10]   In these circumstances, it is submitted for the appellant that a cumulative sentence of 18 months is excessive for the driving offence. Mr Garrett submits that a considerably shorter cumulative sentence would have been appropriate, or even a concurrent sentence.

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].

[11]   Mr Garrett also raises the fact that the Judge omitted to impose a mandatory period of disqualification from holding or obtaining a licence.

Respondent’s submissions

[12]   Ms Bicknell, for the respondent, submits that the starting point of 18 months’ imprisonment for the driving offending was well within range. She refers to Opetaia v Police, which reviewed the various approaches to sentencing for driving whilst disqualified or revoked.4 The first approach involves setting a starting point with reference to the instant offending and then uplifting it for previous offending, including convictions for  driving  while  disqualified.  Ms  Bicknell  says  that  Judge Couch appears to have adopted the second approach laid out in Opetaia, which involves setting a starting point with reference to the driving while disqualified offences as well as any previous disqualified driving convictions. Both approaches should lead to same result.5

[13]   Ms Bicknell refers to two cases to support her submission that the sentence was within range. In Peterson v Police, Duffy J adopted a starting point of 10 months’ imprisonment for an offence which was “not a grave case of driving whilst disqualified” and had “no additional [aggravating] features”.6 This was then uplifted to 17 months to reflect the fact that it was the defendant’s seventh offence of this type, and that he had 76 prior convictions. In Drinkwater v Police, the appellate Court upheld a starting point of 16 months for the appellant’s 11th driving while disqualified offence.7 Ronald Young J further stated that a starting point close to the maximum of two years’ imprisonment could have been justified.8

[14]   Finally, Ms Bicknell points out that Judge Couch gave a four month discount for totality in this case. She submits that the 18 month starting point for the appellant’s 25th offence of this nature was well within range.

4      Opetaia v Police [2015] NZHC 2532.

5 At [36].

6      Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009 at [9].

7      Drinkwater v Police [2013] NZHC 1036.

8 At [20].

Analysis

[15]   On a review of the case law, I accept that a starting point of 18 months’ imprisonment for a 25th charge of driving while disqualified or revoked is entirely within range. In addition to the cases referred to by Ms Bicknell, I note the following:

(a)Stacey v Police: The defendant faced his 21st conviction for driving while disqualified.9 The Court stated a 20 month starting point would have been in range, but adopted a starting point of 18 months given the time that had elapsed since his last relevant offence.

(b)Garlick v Police: The defendant faced  12  charges,  including  his  18th conviction for driving while disqualified or similar.10 The Judge identified driving while disqualified as the lead charge, and came to a starting point of 20 months on that charge.

[16]   I therefore cannot see that a starting point of 18 months for a 25th instance of such offending was manifestly excessive. Indeed, the Judge could reasonably have taken a slightly higher starting point than 18 months, given the number of prior such offences exceeds those in all the cases cited above.

[17]   The real issue is whether imposing that sentence cumulatively on the sentence for taking the vehicle and theft fairly reflected the totality of the offending. While  Mr Garrett sought to minimise the offending on this occasion, describing it as, in effect, part and parcel of an impulsive decision to take the van, I accept Ms Bicknell’s submission that it was a separate offence, in its own right. In any event, the Judge appropriately moderated the effect of a cumulative sentence by giving a four month discount, and in so doing had proper regard to the totality of the offending.

[18]   However, Mr Garrett was correct to point out that Judge Couch did not impose a period of disqualification. Section 32(4)(b) of the Land Transport Act 1998 required him to order the appellant to be disqualified from holding or obtaining a driver licence

9      Stacey v Police [2018] NZHC 3280.

10     Garlick v Police [2016] NZHC 572.

for one year or more. The appeal is therefore allowed in part, in order for this error to be remedied. A disqualification period for the minimum 12 months is imposed.

Outcome

[19]   The appeal is allowed in part. I am not persuaded that the sentence imposed was manifestly excessive. However, 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.

Solicitors:

A N D Garrett, Barrister, Christchurch Raymond Donnelly & Co., Christchurch