Lowrie v Police HC Wanganui CRI-2011-483-000006

[2011] NZHC 364

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2011-483-000006

BETWEEN  JERROME MICHAEL DERECK LOWRIE

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 March 2011 (at Wellington) Counsel: S R Oliver for Appellant

L C Rowe for Respondent

Judgment:      8 March 2011

Reasons:        9 March 2011

In  accordance  with  r  11.5  I  direct  the  Registrar  to  endorse  these  Reasons  for
Judgment with the delivery time of 2.15pm on the 9th day of March 2011.

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal against sentences of two months’ imprisonment, together with six weeks’ cumulative imprisonment imposed by Judge J P Clapham in the District Court at Marton, on 24 February 2011.

[2]      The charges to which the appellant pleaded guilty and sentences imposed were as follows:

Operating  a  motor  vehicle  causing  sustained  loss  of  traction  –  two

months’ imprisonment;

Operating  a  motor  vehicle  recklessly  –  two  months’  imprisonment

(concurrent) and disqualified from driving for a period of two years;

LOWRIE V NEW ZEALAND POLICE HC WANG CRI-2011-483-000006 8 March 2011

Failing to report damage to property – convicted and discharged;

Driving a motor vehicle contrary to learner licence conditions – convicted and discharged;

No evidence of inspection of a private motor vehicle – convicted and

discharged;

Making a false statement that an offence  had  been committed – two

months’ imprisonment (concurrent).

In addition, the appellant had outstanding fines and reparation of $19,311

for which he was sentenced to six weeks’ cumulative imprisonment.

[3]      At the completion of the hearing I advised counsel of the outcome.  That is, that the appeal against the sentence of two months’ imprisonment was dismissed; the sentence of six weeks’ cumulative imprisonment was quashed;  the period of two years’ disqualification was quashed and substituted with a period of 15 months’ disqualification;  the unpaid fines of the appellant were reinstated and the issue of enforcement referred back to the District Court to undertake enforcement procedures pursuant to the Summary Proceedings Act 1957, or on the basis that the appellant is a sentenced prisoner.  Brief reasons in writing now follow.

Background

[4]      The appellant is aged 17 years and held a learner driver’s licence.   On the evening of 24 October 2010 he was driving a vehicle on which the warrant of fitness had expired and doing “burn outs” and “donuts” on a public road in Marton.   He fancied himself as a flamboyant, show off”, driver.   He then proceeded to drive recklessly, at high speed, so as to lose control, leave the roadway and hit a concrete pole, resulting in loss of power to about half of the township of Marton.  He then fled the scene.  He later falsely claimed to the police that his vehicle had been stolen.

[5]      In the year prior to this occasion the appellant had breached the conditions of his learner driver’s licence on nine occasions.   He had previous convictions for dangerous driving, failing to stop when required by the police and two for wilful damage.  He is a young man who defied the law relating to driving motor vehicles, claiming to be “addicted to driving”.    But having accumulated  many fines and enforcement fees his attitude of disregard for authority and a sense of entitlement, is lamentable.  He faced a stinging response to bring him to his senses.

[6]      Judge Clapham observed that the appellant fell into the category of people who put the community and themselves at risk and must know that the terms of imprisonment are, he said, “the norm”.  He said that taking into account the guilty plea,  the  appellant’s  age  and  considering  all  sentencing  options,  the  only  one available to him was a term of imprisonment.   The Judge then observed that a cumulative six weeks’ imprisonment was necessary in respect of the unpaid fines because the appellant was “unable to or chose not to pay fines” and that community work was inappropriate.

Discussion

[7]      It is trite that a Judge is required to impose the least restrictive sentence appropriate in the circumstances.[1]   The probation report made it clear that sentences of home detention or community detention were not realistic options.  So the choice was really between a sentence of intensive supervision or imprisonment.

[1] Sentencing Act 2002, s 8(g).

[8]      The maximum term of imprisonment that can be imposed for operating a vehicle causing sustained loss of traction and/or driving recklessly is three months’ imprisonment.  Other cases are of limited assistance because all are dependent upon their own facts, but an example of reckless driving at speed in a residential area, losing control and striking objects away from the roadway can be seen in Harding v

Police[2]  where a substantial fine and 12 months’ disqualification was imposed.   In

many cases a fine is considered appropriate for such offending, but that was hardly an option open to Judge Clapham given the appellant’s history of blatant disregard of

fines imposed.   So, too, in this case there was the aggravating feature of multiple offending.   In particular, the making of the false statement, clearly intending to pervert the course of justice, might well have justified a cumulative term.  It was a separate type of non-driving related offending, arising after the serious driving offences and designed to defeat the course of justice.

[2] Harding v Police HC Wellington CRI 2010-485-6, 9 March 2010.

[9]      Given the maximum penalties available, and the fact the Judge must have applied a discount in order to reach an end sentence of two years it is possible that he adopted a starting point of three months’ imprisonment.  For the offence of reckless driving and operating a vehicle causing loss of traction, assuming concurrent sentences  were appropriate, that  was  too  high.   A starting point,  for  those  two offences, of two months’ imprisonment was the most that could be justified.   A discount of about one-quarter – being the most available – would result in a term of about six weeks’ imprisonment.  However, my view is that a cumulative term could have been necessary to reflect the later, aggravating and additional offending of making the false statement to the police.  That would have justified, at the least, a further two weeks’ cumulative imprisonment.  It follows that in the end, the overall sentence of two months’ imprisonment for his culpability, viewed in its totality, could not be said to be manifestly excessive.

[10]     The two years’ disqualification from driving is high, and acknowledged to be so by the Crown.  Yet the appellant had shown himself to be a danger to other road users and the public.   He constantly has infringed, ignored his responsibility and defied financial penalties imposed upon him.   Whilst his youth is relevant for sentencing  purposes,  when  viewed  as  against  his  sense  of  entitlement  and impulsivity, it is clear that protection of the community required him being kept off the road for a significant time.  That he is a danger to the public is amply illustrated by his having seriously offended on this occasion, only three days after having been convicted of dangerous driving, upon which offence he was later to be disqualified from driving for six months.  A significant period of disqualification was necessary but two years was too high.   Fifteen months, on top of the six months’ disqualification, is required.

[11]     As  to  the  issue  of  fines.     There  are  only  two  bases  upon  which  a District Court may remit fines, namely whether in conjunction with a sentenced prisoner or pursuant to the provisions of the Summary Proceedings Act 1957. Although the Judge did not specifically say so, it is implicit in his decision that his remittance of the fines and imposing the cumulative sentence of six weeks’ imprisonment  was  founded  on  the  basis  that  he  was  dealing  with  a  sentenced prisoner.  But the Crown agrees with the submission made on behalf of the appellant that the Judge did not take into account that a significant proportion of the $19,000 fines had been accrued by the appellant when he was a “young person” (that is between the age of 14 and 17), and it was not at all clear that any fines imposed before he turned 17 were for imprisonable offences.  Section 88(3AA) restricts such a young person being sentenced to imprisonment or home detention for non-payment of fines where such were imposed in respect of traffic offences not punishable by imprisonment.

[12]     I am satisfied the proper way to now deal with this issue is for the fines to be reinstated so that the status quo is restored and the matter remitted back to the District Court so that enforcement procedures, whether under s 88 or otherwise, may now be taken.

[13]     Accordingly, the appeal is allowed and whilst the sentence of two months’ imprisonment in respect of the guilty pleas is upheld, the cumulative sentence of six weeks’ imprisonment is quashed.  Fines and reparation owing by the appellant are reinstated and the issue re-submitted to the District Court.   The period of disqualification from driving is quashed and replaced with a period of 15 months, to commence  at  the  conclusion  of the  present  term of disqualification  imposed in respect of the offence of dangerous driving.

J W Gendall J

Solicitors:

Evans Henderson Woodbridge, Solicitors, Marton for Appellant

Crown Solicitor, Wanganui for Respondent