Lester v Police

[2020] NZHC 1794

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000015 CRI-2020-412-000016

CRI-2020-412-000017 [2020] NZHC 1794

BETWEEN

REGAN JAMES LESTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 July 2020
Appearances:	S A Saunderson-Warner for the Appellant C J Bernhardt for the Respondent
Judgment:	24 July 2020

JUDGMENT OF NATION J

Introduction

[1]    On 20 May 2020, Mr Lester was sentenced to 10 months’ imprisonment and 18 months’ disqualification from driving on a number of charges: receiving, being unlawfully in an enclosed yard, careless driving, dangerous driving, failing to stop, possession of methamphetamine utensils, possession of cannabis, possession of MDMA and common assault.1 He also appeared for re-sentence on a charge of breaching a protection order due to a failure to complete 361 of the 380 hours of community work he was sentenced to on that charge and for the remission of unpaid fines.

1      R v Lester [2020] NZDC 8895.

LESTER v POLICE [2020] NZHC 1794 [24 July 2020]

Facts

[2]    On 19 March 2019, Mr Lester was sentenced to community detention for six months and 200 hours’ community work on a charge of breaching a protection order. At the time, Mr Lester had outstanding fines of $3,788.53. As a substituted sentence for those fines, Mr Lester was convicted and sentenced to 180 hours’ community work in addition to the 200 hours imposed for the breach of a protection order.

[3]    That protection order was for the benefit of Mr Lester’s former partner (the victim) and their children. They had been in a relationship from about 2011 until early 2018 and had two children together. On 2 August 2018 the protection order was served on Mr Lester. At the time of the offending, Mr Lester was serving a sentence of home detention with a non-association condition in favour of the victim. On 3 January 2019, a birthday celebration was arranged for one of their children at Chipmunks in Dunedin. Due to a misunderstanding, both the victim and Mr Lester attended the birthday party at the same time. There was no incident at the party. The victim then went to leave and be picked up by her partner. Mr Lester was outside and became involved in an angry exchange with the victim’s partner. The victim told him to leave her partner alone, and they drove off. Later that afternoon, someone drove Mr Lester to the victim’s house. The victim came out of her house and there was an angry verbal exchange between her and Mr Lester. She told him to leave, which he did after a short time.

[4]    On 4 September 2019, Corrections filed an application for review of the 19 March 2019 sentence and for a substituted sentence because Mr Lester had completed very little of the community work to which he was sentenced for the offending. His counsel accepts that Mr Lester would have had notice of that application soon after it was filed.

[5]    On 21 September 2019, Mr Lester and an associate were at a school fete in Dunedin and attended the silent auction. Mr Lester spoke with a woman, asking her about a painting and writing down his name and phone number while the associate examined other items. He knew the associate took a number of items from one of the boarding-house dormitories including a wristwatch, Bluetooth speaker, a men’s

fragrance, a Macpac jacket, hockey boots, hard drives, an acoustic guitar and a mountain bike. Mr Lester left the College riding the bike, carrying the associate with the items on the handlebars. Mr Lester helped the associate load the items into the associate’s vehicle parked nearby. Of all the items taken, Mr Lester received the bike, Bluetooth speaker and jacket, together valued at $750, knowing the items to be stolen. He pawned the bike and the speaker for $180 at Cash Converters in South Dunedin later that day. Mr Lester appeared in the District Court on 3 October 2019 and was remanded on bail.

[6]    On 16 November 2019, Mr Lester and two co-offenders were found by police on private property on Mornington Road. They were found at the rear of the property beside a shed which was open with the lights on. They had no permission to be there. Mr Lester appeared in the District Court on 21 November 2019 on a charge arising out of those circumstances. He was again remanded on bail.

[7]    On 12 December 2019, Mr Lester was driving south on the Dunedin Southern Motorway. He was travelling in the right lane and braked heavily as he approached a vehicle travelling ahead of him in the same lane. He moved into the left lane and hit the left metal crash cushion. He continued driving south on the Motorway and into Mosgiel. He stopped at the intersection of Tyne and Forfar Streets to assess the damage.

[8]    In the early hours of 8 February 2020, police observed Mr Lester leaving the Regent Street Night ‘n Day and getting into his vehicle. Police approached the vehicle but Mr Lester drove off. The Police activated their lights and siren, signalling for Mr Lester to stop but he accelerated away. He turned left onto Cosy Dell Road, continuing to drive at speed despite the road being narrow, minimally lit, winding, bordered by trees and heading up a hill. The Police abandoned the pursuit at this point. Mr Lester continued driving up Cosy Dell Road at speed, lost control of his vehicle and crashed into a tree. Police came across the crash and found Mr Lester trying to extricate himself from the driver’s seat. However, as a result of the damage to the vehicle, he was unable to do so.  Mr Lester was arrested.  Police searched the vehicle and found

5.1  g  of  cannabis  plant,  1.1  g  of  MDMA   and  a  glass  pipe  used  for  smoking

methamphetamine. On charges arising out of all this, Mr Lester was again remanded on bail.

[9]    On 25 February 2019, Mr Lester was charged with driving offences relating to his actions on 12 December 2019. He was remanded again on bail.

[10]   On 9 April 2020, there was an incident with Mr Lester’s flatmate, resulting in a charge of assault. The victim and Mr Lester’s father got into an argument over the victim not cleaning up some glass he had broken. The victim yelled at Mr Lester’s father. Mr Lester left his room, approached the victim and shoved the victim in the shoulders with both hands, causing him to fall to the ground. As the victim put his hand out to break his fall he cut his thumb and three fingers.

District Court decision

[11]   Judge Crosbie took the receiving as the lead offence and adopted an overall starting point of 12 months for that and the remaining charges. Included in that, was an uplift of three months for the re-sentencing on the breach of protection order charge. His sentencing notes record he did so by adopting a starting point for that offence of six months’ imprisonment. He discounted that by three months because of Mr Lester’s compliance with a sentence of six months’ “supervision”.

[12]   The Judge allowed a two month discount for totality. There was an uplift of one month for Mr Lester’s previous convictions and one month for his offending while on bail. This brought the indicative sentence to 12 months. He made a further uplift of two months for the unpaid fines. Thus, he reached an adjusted starting point of 14 months. Finally, the Judge applied a guilty plea discount of four months (or 28.57 per cent) to produce an end sentence of 10 months’ imprisonment.

[13]   Taking into account that the first six months of any period of disqualification period would elapse while Mr Lester was in prison, the Judge imposed a “slightly longer” disqualification period of 18 months for the driving offending.

Principles on appeal

[14]   Appeals against sentence are allowed as of right by s 244 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 there has been an error in the imposition of the sentence and a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 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.4 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.5

Submissions

[15]   For Mr Lester, Ms Saunderson-Warner confined the appeal to two discrete grounds:

(a)        the Judge erred by making excessive uplifts of three months for the re- sentencing and two months for the unpaid fines; and

(b)       the Judge erred by imposing an excessive disqualification period.

[16]   As to the first ground, Ms Saunderson-Warner accepted there was no error in the Judge indicating an appropriate starting point as being six months’ imprisonment for the breach of protection order offence for which he had to re-sentence Mr Lester. She noted that offence was committed at a time when Mr Lester was already serving a sentence of home detention for breach of a protection order and he was also in breach of one of the conditions of his home detention sentence. Counsel accepted the Judge had halved that starting point to arrive at an appropriate end sentence for that offence of three months. In his sentencing notes, the Judge said he had reduced the starting

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Skipper v R [2011] NZCA 250 at [28].

point to recognise Mr Lester had complied with and completed six months of a sentence of supervision. In her submissions, Ms Saunderson-Warner thus assumed Mr Lester had been subject to a sentence of supervision and had complied with that sentence.

[17]   Ms Saunderson-Warner said Mr Lester had also been sentenced to six months’ community detention. She submitted that s 68(4) Sentencing Act 2002 required the Judge to give credit for Mr Lester having completed his sentence of community detention. She said the Judge had been in error in not doing this. The error had to be corrected on appeal.

[18]   The Court of Appeal has emphasised that, on a re-sentencing, a court is to proceed on the basis of all that was relevant for the original offence, without any element of punishment for a failure or inability to comply with the terms of a sentence which is under review.6

[19]   Section 68 Sentencing Act permits a court to vary or cancel a sentence of community work when an offender has not completed the work required. On a review of such a sentence, s 68(4) requires the Judge to take into account the portion of the original sentence of community work that remains unserved at the time of the re- sentencing. Arguably, that did not require the Judge to give Mr Lester credit for complying with a sentence of supervision, but I need not determine that question.

[20]   At the time Ms Saunderson-Warner filed her written submissions and on the hearing of the appeal, she did not have the sentencing notes from 19 March 2019 when the original sentence was imposed. Those notes were made available to me from the District Court only after the hearing of the appeal.7 They disclose, first, that Judge Turner then considered an appropriate period of imprisonment for breach of a protection order offence would have been nine months’ imprisonment (eight-month starting point, four-month uplift for offending whilst on home detention and for previous convictions, and a three-month discount for mitigating factors), not the six months Judge Crosbie arrived at on the re-sentencing. It can thus be said that, on the

6      R v Morgan [2008] NZCA 232 at [13].

7      Police v Lester [2019] NZDC 26696.

re-sentencing, Judge Crosbie arrived at an adjusted starting point which was on the generous side as far as Mr Lester was concerned.

[21]   It is additionally apparent there is a discrepancy between the sentences ostensibly imposed by Judge Turner and the sentences Judge Turner noted on the record of hearing sheet for the breach of protection order charge and in Mr Lester’s criminal and traffic history report produced for Judge Crosbie by the Ministry of Justice. Judge Turner appears in his sentencing notes only to have sentenced Mr Lester to community work and community detention. Whereas the record of hearing clearly shows the Judge having stamped, annotated and signed three separate sentences of community work, community detention and supervision. The supervision sentence entry is particularised as being for a term of six months and “as per post detention conditions”. Moreover, a pre-sentence report produced on 26 November 2019 only in relation to the contemplated re-sentencing on 28 November 2019 on the breach of protection order charge records “[Mr Lester] has successfully completed both the Supervision and Community Detention sentences”.

[22]   Mr Lester was evidently not sentenced on 28 November 2019. There was then a further pre-sentence report produced on 12 May 2020 for the re-sentencing as well as the other offending committed between 21 September 2019 and 9 April 2020. This appears to have been the principal pre-sentence report before Judge Crosbie (it is unclear whether he had access to the 26 November 2019 report). Curiously, that report makes no mention of a sentence of supervision and mentions the sentence of community detention only in passing: “[h]is time of most stability was during Home Detention in 2018 but even then required changes of address between his mother and father’s separate home’s [sic] due to behaviours he was exhibiting at the time and this continued throughout Community Detention in 2019” (emphasis added). It thus appears that Corrections and Mr Lester must have both considered that Mr Lester had also been subject to a sentence of supervision.

[23]   Ms Saunderson-Warner could thus responsibly submit that Judge Crosbie had failed to give Mr Lester credit for the completion of his sentence of community detention in addition to complying with a sentence of supervision.

[24]   Despite this, there is nothing to indicate that the term of Mr Lester’s supervision was particularly onerous. It also seems that during the time he was under supervision (at the same time he was subject to community detention), he was exhibiting problematic behaviours. The sentence of community detention required Mr Lester to be subject to a curfew only between 7.00 pm Friday and 7.00 am Monday so that penalty was not particularly onerous given the offence for which community detention had been imposed. The adoption of a starting point of six months for the breach of the protection order on the re-sentencing was on the generous side. I consider the three months credit Judge Crosbie gave Mr Lester against a starting point of six months would have been significant credit for Mr Lester’s compliance with sentences of both six months’ community detention and six months’ suspension had the Judge referred to both on the re-sentencing.

[25]   Furthermore, on an appeal, the focus overall must be on the end sentence imposed. Even with Mr Lester having earlier complied with a sentence of community detention, I would not have found Mr Lester’s end sentence of 12 months to have been manifestly excessive for all the offending for which he was being sentenced given the circumstances of that offending.

[26]   Ms Saunderson-Warner also suggested the uplift of two months for the unpaid fines of $3,788.53 was excessive relative to the total value of the fines. However, she acknowledged there is no formula for arriving at an appropriate sentence in substitution for fines. She suggested the sentence of two months’ imprisonment should have some correlation to the 180 hours’ community work imposed for non-payment of those fines.

[27]   With the sentence of community work being cancelled, the Judge however had to put that sentence aside and decide an appropriate uplift in the term of imprisonment in substitution for non-payment of the fines. The total of unpaid fines was considerable. The information before the Court disclosed that the fines had been accumulated regularly over a period between 27 June 2015 and 2 August 2018. Most of the fines were for offences which indicated Mr Lester had no regard to his responsibilities as a driver or the owner of a car. There were fines mainly for driving without a warrant of fitness, failing to comply with various rules for a learner licensee

and driving when unlicensed. I do not consider the uplift of two months for the non- payment of fines in these circumstances was out of range.

[28]   As to the disqualification period, Ms Saunderson-Warner submitted there was no need to impose a disqualification for more than a cumulative minimum of 12 months (six months for dangerous driving and six months for failing to stop). In mitigation, she said the dangerous driving incident occurred at 3.35 am when there was likely to be very few other road users, and the period of driving must have been relatively short having travelled a distance of 650 m at most.

[29]   Counsel also submitted it was not usual for a court to defer the start date of a disqualification period, under s 85(1) Land Transport Act 1998, where the offender is subject to a short term sentence.8 Further, she submitted the Judge did not actually apply s 85(1), which left the disqualification period excessively long. She suggested Mr Lester’s limited driving offence history counted against an 18 month period of disqualification.

[30]   I do not accept that a period of 18 months’ disqualification was excessive for the dangerous driving and failing to stop charges. The Judge correctly described the incident as a “very dangerous chase”. It resulted in the car crashing, which is why the distance travelled was not longer. The car was being driven so dangerously that the Police withdrew from the chase. The driving was on a narrow and winding suburban road. Mr Lester had failed to stop and tried to flee from the Police to avoid apprehension and the detection of his offences, namely his possession of cannabis, MDMA and a methamphetamine pipe in his vehicle at the time.

[31]   This was a case of dangerous driving that would reasonably have called for a period of disqualification above the minimum 12 months. Twelve months was the cumulative mandatory minimum with both the dangerous driving and failing to stop convictions. The Judge however did have a sound basis for extending the term of disqualification to allow for the time Mr Lester would be in prison so as to ensure the disqualification would have effect for the period the Judge considered appropriate.

8      See for examples of deferral in relation to long-term sentences: Matangi v Police [2018] NZHC 1479; and Taiapa v R [2019] NZCA 524.

[32]   In Work v Police, Heath J said “in my view it is appropriate for a sentencer to impose a period of disqualification that will have some effect on the prisoner, notwithstanding the term to be served.”9 The District Court Judge sentenced Mr Work to 18 months’ imprisonment on a variety of charges, the most serious being receiving stolen property. Judge Kellar also imposed an 18-month disqualification period on two charges of driving while disqualified. The Judge ordered that the disqualification period commence “on the date…[he was] released from prison”. Mr Work appealed on the basis the District Court should have ordered it commence on the date his previous disqualification period was to end.10 Heath J accepted s 85(3) was to be given primacy to s 85(1) Land Transport Act such that the start date should be set as the end date of the previous disqualification period not the prison release date. However, Heath J was concerned that if the disqualification period started on that date, up to one half of the disqualification period could expire while he was in custody. To avoid that and to ensure the disqualification would affect Mr Work for the 18 months the sentencing Judge had said was appropriate for his offending, Heath J increased the disqualification period to 21 months.11 He noted, for reasons of uncertainty as to an offender’s release date, it may not be appropriate to set the disqualification period as beginning from the release date.

[33]   Work has direct application to the present case. It is authority for a sentencing court to extend a period of disqualification to recognise that some of the disqualification period will elapse while the offender is in prison. Judge Crosbie’s extension of the period without explicitly relying on s 85(1) Land Transport Act is consistent with the approach Heath J took. Section 85(1) permitted this approach. It states: “the period of disqualification starts on the day the order is made unless the court otherwise directs …”. The sentencing Judge thus had an unfettered discretion. This would have allowed him to direct the period of disqualification should begin at the end of the prison sentence to ensure the offender was penalised to the extent the Judge considered appropriate. The way Heath J and Judge Crosbie extended the

9      Work v Police HC Dunedin CRI-2008-412-11, 5 June 2008 at [13].

10 Arguing subs (3) has primacy over subs (1) of s 85 Land Transport Act 1998.

11 Citing s 121(4)(c) of the Summary Proceedings Act 1957, which has since been repealed and replaced by the power to increase a sentence on appeal inherent in the broad terms of s 250(2) of the Criminal Procedure Act.

period of disqualification instead of doing that, was consistent with the way they could have exercised the discretion available under s 85(1).

[34]   Ms Saunderson-Warner told me that Mr Lester is likely to be released in September 2020. If that is the case, with a disqualification for 18 months from 20 May 2020, Mr Lester will be effectively disqualified from driving for approximately 14 months. That would not be an excessive period of disqualification given the offending for which the disqualification was imposed.

Conclusion

[35]   I have not been persuaded that either the sentence of imprisonment or the period of disqualification was manifestly excessive.

[36]The appeal is dismissed.

Solicitors:

S Saunderson-Warner, Barrister, Dunedin Crown Solicitor, Dunedin.