Maxwell v Police

[2013] NZHC 3172

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-025 [2013] NZHC 3172

BETWEEN  IVAN PETER MAXWELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   29 November 2013

Counsel:                  NR Harding for Appellant

AWM Britton for Respondent

Judgment:                29 November 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Thomson O’Neil & Co, Eltham

Crown Solicitors, New Plymouth

MAXWELL v POLICE [2013] NZHC 3172 [29 November 2013]

Introduction

[1]      On 17 July 2013, Mr Maxwell, having pleaded guilty in the Hawera District Court to two charges of driving while disqualified, third or subsequent offence, was sentenced  by  Judge  Roberts  to  15  months  imprisonment  and  disqualified  from driving for one year.   He appeals against sentence on the ground that the term of imprisonment was manifestly excessive.

Facts

[2]      Since 1997 Mr Maxwell has been convicted of driving while disqualified on ten previous occasions.  He has served sentences of imprisonment as a result of the last six convictions.  He has been indefinitely disqualified from driving.

[3]      On 10 May 2013 he was stopped while driving in Hawera.  When his status as a disqualified driver was revealed, he explained that he was “heading to the lake for a hunt”.  He was charged and pleaded guilty on 4 June 2013.

[4]      While on remand awaiting sentence for the earlier offence, Mr Maxwell was stopped while driving in Stratford.   Again he admitted that he was a disqualified driver. He explained that his ex-partner had wanted some space so he drove away from her home towards his home in Eltham.

Sentencing decision

[5]      In  his  decision  Judge  Roberts  referred  to  the  pre-sentence  report  and Mr Maxwell’s extensive history of criminal convictions which included offences for violence as well as numerous convictions for driving with excess breath alcohol.  At the age of 37, he has served a number of sentences of imprisonment.  While taking responsibility for his offending, Mr Maxwell did not express remorse and did not appear  to  be  motivated  to  make  changes.     Nor  was  he  motivated  to  attend counselling for what appears to be a serious alcohol abuse problem.

[6]      Judge Roberts had been urged by Mr Harding to impose a “low end sentence”

but  said  that  something  around  the  available  maximum  of  two  years  must  be

considered.   He referred to R v Butterfield1  where the Court of Appeal upheld a sentence of 18 months imprisonment imposed on a 26-year-old man with seven previous convictions for driving while disqualified who had committed two further offences.  He also referred to Peterson v Police2 where an effective starting point of one year and five months was adopted in a case where the offender had six previous convictions for driving while disqualified.

[7]      Judge Roberts adopted a starting point of 12 months which he increased by eight months to accommodate what he described as “an atrocious history and offending  on  bail”.     He  reduced  the  sentence  by  five  months  to  recognise Mr Maxwell’s guilty plea, leading to an end sentence of one year and three months.

Grounds of appeal

[8]      In arguing that the starting point adopted by Judge Roberts was too high, Mr Harding relies heavily on a comparison with the sentencing decision of Duffy J in Peterson.   He points out that although the appellant in Peterson had only six previous convictions for driving while disqualified, the frequency of his offending was comparable to that of Mr Maxwell.  Mr Peterson had 76 convictions over a nine- year period,  five  for driving while disqualified,  whereas  Mr Maxwell’s  criminal history spans a 22-year period during which he has accumulated a relatively modest

43 convictions.  Mr Harding argues that both the starting point and the uplift of eight months were excessive, submitting that a starting point of no more than ten months should have been adopted and an uplift of only seven months was warranted.

[9]      Mr Harding further submits that some additional discount could have been given to Mr Maxwell to reflect the efforts he had made during the months prior to sentence  to  abstain  from  alcohol  and  his  prospects  for  employment  following

release.

1      R v Butterfield CA100/97, 23 July 1997.

2      Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009.

Respondent’s submissions

[10]     Mr Britton submits that the starting point of 12 months is consistent with the decisions of this Court in Iwikau v Police3, R v Peterson4 and O’Docherty v Police5 and of the Court of Appeal in R v Butterfield6.  He acknowledges that the uplift was unusually high but says it was not necessarily incorrect.  He suggests that a starting point of 14 months and an uplift of four months may have been a preferable formulation, with some further increase to take account of aggravating features such

as offending while on bail.

Decision

[11]     The starting point of 12 months was well within the range available to the Judge and, arguably, at the lower end of the range.   The High Court decisions referred to by the Crown support that view, as does the Court of Appeal’s decision in Butterfield where a starting point of 18 months was upheld for the eighth and ninth convictions for driving while disqualified.  To similar effect in Finch v R7 the Court of Appeal  upheld  a  14-month  starting  point  for  the  appellant’s  fifth,  sixth  and

seventh offences of driving while disqualified.   In another High Court decision, Royal v Police8  Miller J said that the two-year maximum sentence would be an appropriate starting point when sentencing on the eighth to fourteenth convictions of the appellant for driving while disqualified.

[12]     The uplift of eight months was unusually high.   It appears to have been intended to capture, in part, previous convictions for driving while disqualified.  If so, I consider the approach to be wrong. As Harrison J said in Te Huia v Police,9 it is the act of driving while disqualified and the degree of its repetition which, in cases

of this nature, set the starting point.

3      Iwikau v Police [2013] NZHC 2515.

4      R v Peterson, above n 2.

5      O’Docherty v Police [2012] NZHC 3043.

6      R v Butterfield, above n 1.

7      Finch v R [2012] NZCA 446.

8      Royal v Police HC Palmerston North CRI-2008-454-41, 17 June 2009.

9      Te Huia v Police HC New Plymouth CRI-2008-443-31, 10 March 2009.

[13]     The starting point should reflect not simply the fact of the more serious offence of driving on a third or subsequent occasion but the additional culpability arising from the number and frequency of previous convictions.   Ronald Young J made the same point in Drinkwater v Police10, an appeal against sentence for driving while disqualified on the eleventh occasion, six of them in the last ten years.  The Judge11 had adopted a starting point for sentence of ten months with an uplift of six months for the appellant’s past offending of driving while disqualified.   Ronald Young J said the following:12

I  consider  the  proper  approach  in  sentencing  for  a  third  or  subsequent driving while disqualified charge is to reflect all of the appellant’s previous convictions for driving while disqualified in the start sentence for the current offending.   The increase in penalty passed by Parliament for a third or subsequent driving while disqualified charge, is intended to reflect the fact of the appellant’s total previous driving while disqualified record.  Accordingly it falls more naturally to consider his total previous driving record in the start sentence for a current driving while disqualified charge.   The alternative approach would be to assume the offending was a third offence (the qualifying number), set a start sentence for such offending and then uplift the sentence to reflect the actual number of past disqualified driving offences. That approach would be wholly artificial.   Any uplift for past offending would therefore relate to other offending and not the driving while disqualified charge.

[14]     On this basis, the issue I am required to consider then is whether a starting point at or close to 20 months could be justified.  I say “close to” because I accept that some uplift would have been justified to take account of previous related convictions for non-compliance offending and it was necessary also to take account, as the Judge did, of the aggravating factor that the second of the index offences took place while Mr Maxwell was on bail awaiting sentence for the first.   Whichever approach  is  adopted,  I am  satisfied  that  aggravating factors  associated  with  the offending and personal to Mr Maxwell himself warranted a starting point at or close to the maximum of two years.

[15]     Mr Maxwell has offended repeatedly and flagrantly.   He has demonstrated complete disregard for sentences which have increased in severity as his offending

has escalated.   It is the responsibility of the courts to respond in uncompromising

10     Drinkwater v Police [2013] NZHC 1036.

11     Also Judge Roberts.

12 At [18].

fashion to those who thumb their noses at measures intended to protect other road users from irresponsible drivers and unsafe driving habits.

[16]     While Judge Roberts’ methodology was suspect, the end sentence he imposed could not be faulted.  The 25 per cent discount for Mr Maxwell’s guilty plea was generous given that he had no defence to the charges.  I see no justification for any further discount to take account of the efforts he has made, somewhat belatedly it would seem, to abstain from alcohol and to recognise his prospects for employment following release.

Result

[17]     The appeal is dismissed.