Lord v Police
[2015] NZHC 1756
•29 July 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-73 [2015] NZHC 1756
BETWEEN DANIEL RAYMOND LORD
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 July 2015 Appearances:
A McKenzie for Appellant
D L Elsmore for RespondentJudgment:
29 July 2015
JUDGMENT OF MANDER J
[1] Daniel Lord was sentenced to six months imprisonment on two charges of driving whilst disqualified, each being his third or subsequent offence. He appeals that sentence on the basis that it is manifestly excessive.
Background
[2] Mr Lord, as a result of the accumulation of demerit points had his licence suspended. On 22 August 2014, he drove notwithstanding that suspension. He was subsequently convicted of that offence and disqualified from driving for six months.
[3] On 26 February 2015, Mr Lord drove whilst disqualified. In explanation, he stated he was test driving a car that he was thinking of buying for his son. The following month, on 12 March, Mr Lord was again apprehended driving whilst disqualified. His explanation on that occasion was no less convincing, stating that he
needed to pick up groceries.
LORD v NEW ZEALAND POLICE [2015] NZHC 1756 [29 July 2015]
The District Court sentence
[4] In sentencing Mr Lord, Judge Couch referred to a “history” of previous convictions, namely a driving whilst disqualified conviction in 2003, and Mr Lord having driven whilst suspended the previous year. The learned District Court Judge emphasised the seriousness of disobeying Court orders, which undermines the scheme of the Land Transport Act 1998, and the need for such offending to be denounced and deterred.
[5] Judge Couch considered that because these were Mr Lord’s third and fourth offences of this type a sentence of imprisonment must be imposed, and a starting point of eight months was taken. Mr Lord’s prompt guilty pleas were recognised by his sentence being reduced by two months.
[6] A sentence of home detention would have been imposed, however, in the absence of Mr Lord consenting to that sentence, it was not an alternative available to the sentencing Court. Leave to apply was granted.
The appeal
[7] Mr Lord submitted that Judge Couch erred in concluding that he “must” impose a sentence of imprisonment because they were his third and fourth offences of this nature. It was emphasised there was no reason for the Judge to have limited the exercise of his sentencing discretion in the way that he did, and particularly so given the fact that for Mr Lord’s second offence of this type, committed in the previous year, he received a modest fine.
[8] Mr Lord submitted that, based on the hierarchy of sentences, to jump from a fine to a sentence of six months imprisonment was not consistent with principle. It was stressed that Mr Lord’s unwillingness to consent to home detention were for personal reasons, relating to his wife’s health and her anxiety about other people, such as probation officers and equipment installers being in the house. He submitted the absence of consent to such a sentence should not have lead the sentencing Judge to conclude the Court had no alternative but to impose imprisonment.
[9] In summary, Mr Lord submitted a custodial sentence was manifestly excessive, having regard to his limited previous offending, and that deterrence, both general and personal, would have been achieved by the imposition of a sentence of community work, which would have been sufficiently punitive in the circumstances.
The Crown position
[10] The Crown submitted the sentencing Judge did not err in his approach to the sentencing exercise, and the imposition of six months imprisonment was within the range of sentence available to the Court. The Crown emphasised Mr Lord had committed two offences in close proximity to each other, and his reoffending represented a complete disregard for the orders of the Court. In the absence of Mr Lord being prepared to consent to a sentence of home detention, it was submitted any other sentence short of imprisonment would have been inadequate.
Decision
[11] In sentencing offenders for recidivist offending, particularly those involving breaches of Court imposed orders, a sentencing Court is entitled to impose a stern sentence where the circumstances exhibit an offender’s deliberate and flagrant breach. As Judge Couch observed, offenders who repeatedly fail to abide with disqualification orders undermine one of the central means of achieving compliance with the land transport legislation.
[12] Having recognised that important sentencing purpose, the sentence to be imposed must reflect the principles set out in the Sentencing Act. The question arises in the present case whether those purposes and principles, in particular the need to hold the offender accountable and to deter further offending, could have been achieved by imposing a sentence with a less restrictive outcome. Other considerations, including the general desirability of consistency with appropriate sentencing levels for like offending and the gravity of the offending in the particular case, also need to be recognised.
[13] Previous sentencing authorities are of limited assistance, turning as they do on the individual circumstances of the offence and the offender in the particular case.
However, they tend to indicate that resort to imprisonment in Mr Lord’s case was not
necessary.
[14] In Lawrence v Police a sentence of six months imprisonment was upheld on appeal on a charge of driving whilst his licence was suspended.1 A concurrent sentence of two months imprisonment was imposed on a second identical charge arising from an earlier incident. The appellant in that case had been convicted three times for driving whilst disqualified or driving whilst his licence was suspended. In August 2012, the appellant was again stopped by police. He gave false details, and
subsequently appeared in the District Court where he was remanded for sentence. Prior to his sentencing, he again drove whilst his licence was suspended, and appeared for sentence on both charges.
[15] The District Court observed that had the first of the two most recent offences, being the appellant’s fourth offence of driving whilst suspended or disqualified, been the only charge before the Court, a sentence falling short of imprisonment may have been merited. The fact the appellant committed a fifth offence while awaiting sentence for the earlier offending was what resulted in the imposition of imprisonment. The case recognised that for sentencing purposes it is not necessary to distinguish between an offender who has driven whilst disqualified and one who has driven whilst his or her licence is suspended.
[16] In Maney v Police, Keane J reduced a sentence of six months imprisonment to one of three months on a charge of driving whilst disqualified on a third or subsequent occasion.2 The appellant had pleaded guilty and been sentenced to imprisonment at a time when he was already in custody on firearm charges, and a community-based sentence was not available. On appeal, Keane J observed that had the appellant not been in custody at the time of sentence, a sentence of
imprisonment, even in the aggravating circumstance of the commission of the breach, which included the fact the driver was unlicensed and had failed to stop, would not have been a proportionate response. The appellant in that case had three
previous convictions for disqualified driving.
1 Lawrence v Police [2013] NZHC 197, referring to Smith v Police HC Auckland CRI-2010-404-
398, 11 March 2011.
2 Maney v Police [2013] NZHC 3205.
[17] In Barton v Police, a sentence of four months home detention was upheld on appeal, in relation to two charges of driving whilst disqualified.3 Convictions had been entered after protracted defended proceedings. The sentencing Court observed the reason for the imposition of the disqualification was an important factor to be taken into account when assessing subsequent breaches of the order. In that case, the appellant had been convicted for driving with a high excess breath alcohol level.
The appellant had reoffended only one month after he had been disqualified for driving with excess breath alcohol, only to repeat the offence shortly after, when he was again convicted for disqualified driving. The appellant also had relatively recent convictions for other offending, including breaching sentences of community work. In the Court’s view, this ruled out the possibility of a community-based sentence. The sentence, while described at being at the upper end of the available range, was upheld on appeal.
[18] Finally, I was referred to Iwikau v Police, where a sentence of nine months imprisonment was reduced to one of seven and a half months for a seventh driving whilst disqualified charge and failing to stop with further aggravating features.4 The appellant in that case had six previous convictions for driving whilst disqualified, the first of which had been entered in 2005. Mr Iwikau had recently appealed a previous sentence for driving whilst disqualified (his sixth conviction), which had resulted in
a reduction of the term of imprisonment imposed in the District Court to one of three months imprisonment. It is apparent that Mr Iwikau was a persistent offender who, over a relatively short period of time, had continued to consistently reoffend in breach of disqualification orders despite repeated intervention by the Court. Williams J, in the later appeal, observed that the authorities suggest a sentence of between six and 10 months is open to a Judge for a seventh offence, and a trend of substantial increases for subsequent reoffending between the fifth and tenth offences. A range of terms of imprisonment were suggested, with a starting point of two months for a fifth conviction, while an eleventh offence was likely to attract a
starting point at or around the maximum.5
3 Barton v Police [2014] NZHC 3240.
4 Iwikau v Police [2013] NZHC 2515.
5 At [4].
[19] The offence of driving whilst disqualified being a third or subsequent offence carries a maximum of two years imprisonment. The seriousness of the charge is obvious enough, centred as it is on the repeat nature of the driver’s failure to abide with the terms of a sentence. However, the offence captures a range of offending. That range is largely reflected by the number of times the offender has failed to comply with disqualification orders, and whether there are accompanying aggravating features, such as bad driving or driving under the influence of alcohol, which raise public safety concerns.
[20] The sentencing Court’s chief concern was the fact that Mr Lord had breached the disqualification order twice within the space of approximately one month. This came after the imposition of a period of disqualification in the previous year, as a result of him driving when his licence was suspended. Judge Couch was therefore entitled to conclude that Mr Lord’s actions were entirely deliberate, and that he was quite openly flouting the disqualification order. It followed therefore that his offending was required to be denounced and met with some punitive response.
[21] Prior to Mr Lord being sentenced in September 2014 for driving while his licence was suspended, his only previous conviction for disqualified driving was some 11 years ago, in 2003. It is apparent that up until that point, Mr Lord also had some problems with driving under the influence of alcohol. As the pre-sentence report notes, Mr Lord appears to have put that behind him, and there has been no repetition of that type of offending. Indeed, Mr Lord had not offended again until the suspension of his licence and his present difficulty regarding compliance with the disqualification order imposed last year. The pre-sentence report puts his risk of reoffending as low, and that he does not present a risk of harm to others.
[22] While acknowledging the sentencing Judge has a wide discretion in cases involving multiple breaches of disqualification orders, and that sentences of imprisonment are not uncommon where there has been repeat offending, the sentencing Court needs to have confidence that, in the circumstances, no other less restrictive sentence could achieve the objectives of the sentencing exercise.
[23] In reading Judge Couch’s sentencing remarks, I have the impression that he would have been inclined to have imposed a sentence of home detention but for Mr Lord’s failure to consent to that course. It is trite that in order for a sentence of home detention to be imposed the Court must be satisfied that the offender would otherwise have been sentenced to imprisonment. The learned sentencing Judge considered that no other course was available to him in the circumstances of Mr Lord’s repeat offending.
[24] In my view, that was not the case and the sentencing Judge erred in confining his discretion in the way that he did. While the consecutive breaches of the disqualification order was of understandable concern to the Court, in my view, that feature of Mr Lord’s conduct did not require a sentence of imprisonment to be imposed. I make that observation because, prior to the events of this year, Mr Lord had not been a serial offender. His first offence of driving whilst disqualified dates back to 2003 and the second, 11 years later, arose out of his failure to comply with the suspension of his licence, as a result of the accumulation of demerit points. That last offending was met with the imposition of a modest fine and a period of disqualification. The seriousness of the two breaches of that disqualification order were required to be viewed against that limited background of recidivism.
Result
[25] It follows therefore that I am satisfied the imposition of six months imprisonment was manifestly excessive, and that a community-based sentence should be substituted. Accordingly, the appeal is allowed. The sentence of six months imprisonment is quashed and, in its place, I impose a sentence of 230 hours community work.
[26] In accordance with the pre-sentence writer’s recommendation, I also impose a period of supervision for 10 months, a condition of which will be that Mr Lord is to attend the Driver Change programme. The following aspects of the District Court sentencing stand: (a) the two one year periods of disqualification, running from 15
July 2015 and 15 July 2016 respectively; (b) the confiscation order in respect of the
Subaru motor vehicle, registration XZ1088; and (c) the notice under s 129B of the
Sentencing Act 2012 to the owner of the Toyota motor vehicle, registration ZO6798.
Solicitors:
A McKenzie, Christchurch
Raymond Donnelly & Co, Christchurch
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