[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…

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.

Continue reading Maxwell v Police

Details

AGLC: Maxwell v Police [2013] NZHC 3172
Case: [2013] NZHC 3172
Decision Date: 29 November 2013

CaseChat Overview and Summary

The appeal in Maxwell v Police concerns the sentence imposed on the appellant, Mr Maxwell, who was convicted in the Hawera District Court of two charges of driving while disqualified, third or subsequent offence. Mr Maxwell was sentenced to 15 months imprisonment and disqualified from driving for one year. He appealed on the ground that the term of imprisonment was manifestly excessive. The High Court of New Zealand was required to determine whether the sentence imposed was appropriate in light of Mr Maxwell's extensive criminal history and the circumstances of his offending.

The court considered the appellant's extensive history of criminal convictions, including ten previous convictions for driving while disqualified and multiple convictions for driving with excess breath alcohol. The court acknowledged that the starting point of 12 months was within the range available to the Judge, and that the uplift of eight months, although unusually high, was intended to capture previous convictions for driving while disqualified. However, the court held that the starting point should reflect the number and frequency of previous convictions, and that a starting point at or close to the maximum of two years was warranted due to the appellant's repeated and flagrant offending. The court further held that the 25 per cent discount for the appellant's guilty plea was generous and that there was no justification for any further discount.

The appeal was dismissed, and the sentence imposed by the Hawera District Court was upheld. The court held that the sentence was appropriate in light of the appellant's extensive criminal history and the circumstances of his offending. The court emphasised the importance of responding in uncompromising fashion to those who thumb their noses at measures intended to protect other road users from irresponsible drivers and unsafe driving habits.

Orders