Martin v Police - [2016] NZHC 1831

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-28 [2016] NZHC 1831

BETWEEN
ANDRE IHIMAERA MARTIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 August 2016

Counsel:

P A Walker for Appellant
M J Blaschke for Respondent

Judgment:

8 August 2016

JUDGMENT OF BROWN J

[1] Mr Martin (the appellant) pleaded guilty to a charge of driving while disqualified (third or subsequent) and was sentenced on 14 June 2016 in the District Court at Palmerston North to a sentence of 14 months’ imprisonment and a further disqualification for 18 months. He appeals that sentence contending that it was manifestly excessive.

District Court decision

[2] While riding a motorcycle the appellant was stopped by police at a routine traffic stop. The motorcycle was unregistered and it was discovered that the appellant was subject to a disqualification period. Judge Wharepouri noted that the appellant had 14 previous convictions for the same offence, the most recent of which was in 2014. The Judge further noted that the appellant had a significant number of convictions for non-compliance with court orders. The Judge took into account the pre-sentence report and the list of previous convictions and arrived at the conclusion
that the appellant is a recidivist offender with little or no remorse. However, the

MARTIN v NZ POLICE [2016] NZHC 1831 [8 August 2016]

Judge also acknowledged there was evidence of the appellant’s recent efforts

towards rehabilitation.

[3] After considering some similar cases, the Judge identified the appropriate starting point range as being between ten and 20 months’ imprisonment. A starting point of 18 months was adopted, which took into account the previous convictions for the same offence.

[4] From that starting point, an uplift of four months was made to take into account the appellant’s other convictions for non-compliance with court orders. Reductions were then made for the efforts made by the appellant to change his lifestyle and for his guilty plea: two and six months respectively. The end sentence was therefore 14 months’ imprisonment.

[5] The Judge then considered whether home detention would be an appropriate sentence and recorded:

After giving the matter some careful thought, home detention is refused to you. In my view, that type of sentence is not consistent with the principles and purposes of sentencing in the Sentencing Act 2002. It would not bring a home [sic] to you the sentencing purposes of deterrence and denunciation, nor would it be suitable for the observations made by the report writer in the pre-sentence report, namely that the address hat was canvassed by the report writer would have you reside together with your partner who faces charges for similar type offending.

[6] Finally, the Judge entered a disqualification of 18 months, noting that he was

“obliged” to do so.

Grounds of appeal

[7] The appellant submits that the sentence was manifestly excessive for the following reasons:

(a) The starting point was too high given that there were no aggravating features other than the non-registration of the motorcycle.

(b)The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1831
Decision Date: 8 August 2016

CaseChat Overview and Summary

The High Court of New Zealand was presented with an appeal by the appellant, Andre Ihimaera Martin, against his sentence for driving while disqualified, a third or subsequent offence. Martin had been sentenced in the District Court to 14 months' imprisonment and an 18-month disqualification period. The appellant argued that the sentence was manifestly excessive. The primary contentions were that the starting point for the sentence was too high, the uplift for previous convictions was excessive, insufficient credit was given for the appellant's personal circumstances, and the disqualification period should not exceed 12 months. Furthermore, the appellant argued that a community-based sentence should have been imposed instead of imprisonment and disqualification.

The court addressed the appellant's arguments by examining the principles of sentencing for driving while disqualified offences, which emphasise the importance of considering the offender's previous convictions and frequency of offending. The court noted that a starting point of 18 months was appropriate, given the appellant's 14 previous convictions for the same offence. However, the court found that an uplift of two months for previous non-compliance convictions would have been more appropriate than the four months adopted by the District Court. The court also acknowledged the appellant's mitigating features and guilty plea, which led to a discount of 25%. The court concluded that the difference between the sentence under appeal and the reassessed sentence was minimal, and therefore, the sentence imposed was not manifestly excessive.

Regarding the disqualification period, the court found that there was no material error in the exercise of the discretion concerning home detention, as the appellant had a history of non-compliance with home detention and post-sentence conditions. The court also noted that the disqualification period imposed was the same as that imposed for the appellant's most recent previous conviction for driving while disqualified, and therefore, imposing any lesser period would not have been appropriate.

Ultimately, the court dismissed the appeal and upheld the original sentence imposed by the District Court.

Orders