Lay v Police

[2024] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-029

[2024] NZHC 1118

BETWEEN

DARYLL LAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 May 2024
Appearances:	M Douglas (via VMR on behalf of W T Nabney) for Appellant A Maino for Respondent
Judgment:	8 May 2024

JUDGMENT OF GRAU J

[Appeal against sentence]

[1]    On 5 March 2024, Judge Hollister-Jones sentenced Mr Lay to 19 months’ imprisonment on three charges of reckless driving causing injury, one charge of reckless driving, and one charge of failing to stop and ascertain injury.1

[2]    Mr Lay appeals his sentence. The sole issue on appeal is whether the Judge should have commuted the prison sentence to home detention.

The offending

[3]    Mr Lay’s Mongrel Mob gang patch was stolen by a Black Power gang member. The result was a dangerous high speed car chase on a main arterial route in Rotorua at

1      Police v Lay [2024] NZDC 4951; charges pursuant to Land Transport Act 1998, ss 35(1)(a) (maximum penalty of three months’ imprisonment or $4,500 fine), and 36(1)(a) and (c) (maximum penalty five years’ imprisonment or $20,000 fine) respectively.

LAY v NEW ZEALAND POLICE [2024] NZHC 1118 [8 May 2024]

approximately 6:00 pm on Saturday 3 June 2023. It was a public holiday weekend and traffic was heavier than usual. Mr Lay was driving a car containing five Mongrel Mob associates. He was chasing a car containing Black Power members. The Police received numerous calls relating to the two cars speeding and overtaking dangerously.

[4]    CCTV footage showed two cars travelling at high speeds, driving on the wrong side of the road, overtaking, undertaking, and driving through red lights. At times both cars drove through road cones, were weaving through oncoming traffic, driving on the opposite side of the road and through intersections at high speed.

[5]    The chase continued for approximately four kilometres forcing numerous members of the public to take evasive action. The Black Power car drove through a red light at the Tarawera and Te Ngae Road intersection which is controlled by traffic lights and consists of 12 lanes in  all  directions.  It collided with  the victims’ car.  Mr Lay, following immediately behind and also driving through the red light at speed, also collided with the victims’ car.

[6]    Mr Lay and all the occupants of his car immediately left the scene, chasing the occupants of the other gang car on foot. They did not stop and check to see whether anyone was injured.

[7]    The first victim, the front seat passenger, received sprains to her neck, back and right ribs and bruising to both legs and torso. The second victim, the driver, received sprains to his ribs and right ankle, bruising to his face, both legs and an open wound on his right hand. The third victim, the rear seat passenger, received bruising to both legs. None of the victims provided victim impact statements.

Sentencing decision under appeal

[8]    After recounting the facts, the Judge noted Mr Lay’s age of 42 and criminal history.2 Mr Lay had a conviction of a similar nature in 1999 for which he was sentenced to nine months’ imprisonment. Mr Lay’s offending since was property offending, family violence and driving while disqualified. Mr Lay was last before the

2      Police v Lay, above n 1, at [9].

Court in 2021 for breaching a protection order and, immediately before that, for driving while suspended, third or subsequent.

[9]The Judge recorded the aggravating features of the offending as:3

(a)a prolonged course of extremely reckless driving;

(b)a gang-motivated chase involving two cars containing gang members that put multiple members of the Rotorua public at serious risk and ultimately a collision;

(c)three victims who suffered moderately serious injury; and

(d)fleeing the scene.

[10]   The Judge’s view was that the offending was towards the most serious end of reckless driving causing injury. The only reason it was not at the most serious end was because there was no evidence of lasting injury to the victims.4 His Honour noted that this was reckless driving on Rotorua’s busiest arterial road.5

[11]   His Honour adopted a starting point of two years and three months’ imprisonment.6 An uplift of two months was applied to account for Mr Lay’s criminal history; although the relevant conviction was 24 years ago, Mr Lay had continued to offend, indicating the public was at risk from him.7 The starting point was reduced by 20 per cent for Mr Lay’s guilty plea, with the Judge recording that Mr Lay had put a lot of effort into rehabilitation since going to the Grace Foundation.8 The Judge also referred to the pre-sentence report which noted the benefits of the supportive environment at the Grace Foundation, and he made a 10 per cent reduction to recognise

3 At [14].

4 At [15].

5 At [16].

6 At [17].

7 At [18].

8 At [19].

that factor.9    The overall reductions amounted to 30 per cent, and resulted in an adjusted starting point of 21 months’ imprisonment.10

[12]   Judge Hollister-Jones observed that Mr Lay had been electronically monitored bail for nine months; five months at home, and four months at the Grace Foundation. He made a further reduction of two months, resulting in an end sentence of 19 months’ imprisonment.11

[13]   The Judge noted the pre-sentence report recommendation was home detention. He said he had thought very carefully about it. However, he reached the conclusion that “this offending, putting so many members of the Rotorua community at serious risk and injuring three, all because your gang patch was stolen, should result in a sentence of imprisonment”.12

[14]His Honour then went on to say that:13

The Court has to mark this offending out as completely unacceptable and send the strongest possible message that reckless driving by gang members putting members of the community at risk will result in a sentence of imprisonment.

[15]   The Judge again acknowledged Mr Lay’s efforts at rehabilitation and his desire to change but said, at the age of 42, Mr Lay had got himself involved in this and there was no other appropriate sentence in the circumstances than imprisonment.14

Approach on appeal

[16]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed. The Court would not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.15

9 At [20].

10 At [22].

11 At [23].

12 At [25].

13 At [26].

14 At [27].

15     Tutakangahau v R [2014] NZCA 279 at [32]–[35].

[17]   The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion. It is governed by the purposes and principles of sentencing contained in the Sentencing Act 2002.16 Appellate review, as in other sentence appeals, focuses on the identification of error, if any, in the Court below.

Submissions of the parties

[18]   Mr Douglas, on behalf of Mr Lay, takes no issue with starting point, uplift, reductions, or the end point of 19 months’ imprisonment. He also accepts the Judge had to weigh up the factors and that it cannot be said the Judge did not consider matters relating to Mr Lay’s rehabilitation. But Mr Douglas submits that insufficient weight was given to Mr Lay’s rehabilitative efforts and prospects, and too much weight was given to denunciation and deterrence.

[19]   For the respondent, Ms Maino argued that the Judge conducted a balancing exercise, considered everything, and then put deterrence and denunciation at the forefront as he was entitled to do. She submitted it was clear from the decision that the Judge considered the material put forward in Mr Lay’s favour and that was reflected in the reductions the Judge made.

Discussion

[20]   Section 16(2) of the Sentencing Act stipulates that a court must not impose a prison sentence unless it is satisfied that the sentence is being imposed for the particular listed purposes in s 7 (which include denunciation and deterrence) and those purposes cannot be achieved by a sentence other than imprisonment.

[21]As the Court of Appeal has said in the case of Fairbrother v R:17

[29]      Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

16     Manikpersadh v R [2011] NZCA 452.

17     Fairbrother v R [2013] NZCA 340 at [29]–[31] (footnotes omitted).

[30]      That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]      Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

[22]   In my view, the present case was such a case involving a difficult exercise of judgement, as the Court of Appeal identified above. Mr Lay, on the information available to the Judge, did appear to be motivated to rehabilitation and had good prospects of rehabilitation. He had been on EM bail for some time, apparently without issue. Yet, he had to be sentenced for engaging in a very bad episode of driving that put other road users at risk of serious harm and resulted in injury to three, in the context of a gang-related incident.

[23]   In my view, the Judge’s  decision makes it clear that he addressed himself to  s 16 of the Sentencing Act. He did not accord complete priority to denunciation and deterrence without regard to other sentencing purposes. He first reflected on the letters of support from the Grace Foundation and Mr Lay’s efforts at rehabilitation as confirmed by the pre-sentence report. He recognised those efforts by reductions to the starting point. He then put to the forefront the principles of denunciation and deterrence as requiring a sentence at the top of the hierarchy of sentences to send a message to Mr Lay and other gang members that such behaviour would be met with a stern response.

[24]   The Judge had a discretion to determine which sentencing purpose or purposes should be given precedence according to the overall circumstances of the case. He did not ignore the factors that supported commuting the sentence to home detention. But those were outweighed by the need to denounce and deter such dangerous gang-related behaviour that was a risk to the public in Rotorua. He made a considered and

principled  choice  between  the  two  forms of sentence.    I can see no error in his approach.

[25]Accordingly, the appeal against sentence is dismissed.

Grau J

Solicitors:

W T Nabney, Tauranga for Appellant Crown Solicitor, Rotorua for Respondent