M v Police HC Invercargill Cri-2009-425-18

[2009] NZHC 1310

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2009-425-000018

M

Appellant

v

POLICE

Respondent

Hearing:         22 September 2009

Appearances: D G Slater for Appellant

M D Morris for Respondent

Judgment:      22 September 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      Following pleas of guilty, the appellant was convicted in the District Court of four charges, namely three charges of driving while disqualified in the aggravated form and one charge of supplying false details.

[3]      He  was  sentenced  to  a  period  of  four  months’  home  detention  and disqualified from driving for a period of one year on each of the driving charges, the periods of disqualification to run consecutively.  The effect of this was to make the

total period of disqualification one of three years.

M V POLICE HC INV CRI-2009-425-000018  22 September 2009

[4]      The facts of the offending were as follows.

[5]      In May 2007 the appellant was disqualified from driving for a period of 15 months until 2 August 2008.

[6]      However, on 30 May 2008 he drove a motor vehicle on the road, and then again on 26 June 2008.

[7]      The third offence arose the following day, on 27 June, when the appellant again drove and when stopped provided false particulars.  As noted by the sentencing Judge, the driving on 27 June must have been extensive because the appellant, who lives in Invercargill, was stopped in Dunedin.

[8]      Unfortunately the appellant, who is only 22 years of age, has an extensive criminal history.  He has two prior convictions for driving while disqualified, as well as 11 other convictions for driving while suspended or revoked.  There are, it seems, also numerous convictions for offences of dishonesty, as well as convictions for breaches of community work and conditions of supervision and one for racing.  The pre-sentence report writer considered the appellant to be at high risk of reoffending.

[9]      The appellant was sentenced on 30 January 2009, but the notice of appeal was not lodged until 12 August 2009.  The police make no issue of the delay and in those circumstances I am prepared to follow the usual convention and consider the merits of the appeal despite it being out of time.

[10]     The appeal only relates to the three periods of disqualification.  The ground of appeal is that by making the three periods consecutive the Judge ended up with a total sentence which was manifestly excessive.

[11]     In support of that submission, Mr Slater relies on the well known principle that lengthy periods of disqualification frequently prove so daunting for offenders that further reoffending inevitably results.  Mr Slater submits this is especially so in this case involving, as it does, a young man whose job prospects and hence his rehabilitation are likely to be compromised by having such a lengthy period of

disqualification.  Mr Slater further points to the fact that none of the driving offences were associated with bad driving, that the home detention sentence has been completed  without  difficulty,  and  further  there  have  been  no  more  incidents  of driving while disqualified.

[12]     For his part, counsel for the police, Mr Morris, submits that the length of disqualification was not manifestly excessive, given the appellant’s history and the spate of offending that led to the three most recent charges.  Mr Morris contends that each of the three charges involve a blatant disregard for Court orders, something he says is further illustrated by the convictions for breach of community work and breach of supervision conditions.

[13]   Mr Morris also points out that the mandatory minimum period of disqualification is one year, so that in this sentence the Judge was doing no more than imposing the bare minimum in respect of separate and distinct charges.   In response to that argument, Mr Slater however submits that while that may be so, the Judge still had the ability to tailor the sentence by making one or more of the periods concurrent so as to reduce the total to under the three years.   I accept that, which means of course the key issue in this case is really one of totality: whether, having regard to all the circumstances, three years was manifestly excessive.

[14]     In imposing the period of disqualification that he did, the sentencing Judge said at [4] of his notes:

… Orders for disqualification are there for several reasons.  One is the public interest and safety.  Another is to penalise those who behave inappropriately on  the roads.    If  that  order  for  disqualification  is  not  complied  with  it undermines the whole purpose of sentencing on the original charge.  I must also be conscious that how I deal with you will send a message to others.

[15]     Those comments echo similar comments made by the Court of Appeal in R v Butterfield CA100/97, 23 July 1997.   In that case the Court of Appeal stated “disqualification is an important instrument for dealing with irresponsible driving and adherence to such orders is essential if the integrity of the driver licensing system is to be preserved”.

[16]     I have carefully considered all the submissions that have been made and I have also reviewed comparator cases such as Royal v Police HC Palmerston North, CRI-2008-454-000041, 17 June 2009, Miller J and Dixon v Police HC Christchurch, CRI-2006-409-000244, 19 March 2007, Panckhurst J, as well as my own decisions of Fowler v Police HC Christchurch,  CRI-2008-409-000056,  15  May 2008  and Swanston v Police HC Christchurch 2008-409-000057, 19 June 2008.  I accept that a three-year period was stern.   However, in my view having regard to all the circumstances of the offending, involving as it did a truly flagrant breach of Court orders, and  given the appellant’s history,  I do not consider the  three  years  can properly be characterised as manifestly excessive.

[17]     I do not consider that appellate intervention is warranted.  Three years was a period that was within range, and accordingly the appeal is dismissed.

Solicitors:

D G Slater, Invercargill

Crown Solicitor, Invercargill