Miru v Police HC Whangarei CRI-2011-488-000010

[2011] NZHC 311

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-488-000010

BETWEEN  ZETH JAMES MIRU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 April 2011

Appearances: J Soondram for Appellant

M B Smith for Crown

Judgment:      11 April 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            J Soondram, Auckland

MIRU V NEW ZEALAND POLICE HC WHA CRI-2011-488-000010 11 April 2011

[1]      On 24 February this year the appellant was sentenced to imprisonment for four months by Judge Maude in the District Court at Dargaville.  He was sentenced to two months’ imprisonment for failure to complete a community work sentence and an additional cumulative two months’ imprisonment in relation to a dangerous driving charge.

Background offending

[2]      I  understand  that  the  community  work  sentence  in  issue,  which  was  a sentence of 160 hours imposed on 3 August 2009, was imposed because of the appellant’s failure to comply with or pay fines outstanding at the time.

[3]      The   dangerous   driving   conviction   arose   in   circumstances   where   the appellant’s car was clocked by a police patrol travelling at 168 kilometres per hour on State Highway 12.  The police were heading in the opposite direction at the time. They radioed a description of the vehicle to other police units.  The car was later noticed travelling at speeds of 70 to 80 kilometres per hour while travelling in a 50 kilometre hour zone.   When stopped the appellant stated that he was doing 170 kilometres per hour when passed on State Highway 12.   There was also a related charge of sustained loss of traction.

The District Court decision

[4]      In sentencing the appellant the Judge noted that at the age of 21 the appellant had, by the date of sentence, been employed for three months at a sawmill, that he was employed on a 90 day contract and he worked well while he was there.  The Judge noted the appellant had the support of his family, his mother in particular.

[5]      The Judge noted that the appellant had only completed 55¼ hours of the 160 hour sentence of community work.

[6]      The Judge noted that the appellant had pleaded guilty and directed himself to the purposes and principles of the Sentencing Act.   The Judge then said that the Judges in the area had made it plain that, without good reason, failure to comply with the community work hours would  lead  to  imprisonment.    He recorded  that  the appellant had on two separate occasions offended, once seriously and while awaiting sentence.  The Judge placed significant weight on the need to deter the appellant and others from not complying with community work sentences.

[7]      In the end result the Judge said that while it gave him no satisfaction at all, that the community work sentence would be cancelled.  He imposed a sentence of two months’ imprisonment.   He then also imposed the additional sentence of two months’ imprisonment for the driving offence.  The appellant was also disqualified from holding or obtaining a driver’s licence for a period of nine months.

The appeal grounds

[8]      The appellant appeals against the sentence of imprisonment.   In support of the appeal Mr Soondram submitted that the sentence was manifestly excessive and contrary to the principles and purposes of the Sentencing Act 2002.

[9]      In his thorough submissions Mr Soondram canvassed the provisions of the Act and submitted that a non-custodial sentence, in particular a sentence of community detention was the appropriate sentence in this case.

[10]     Mr Soondram noted that s 10A of the Sentencing Act provided for a hierarchy of sentences and that above community work were community detention and home detention before imprisonment.

[11]    Mr Soondram noted the pre-sentence report recommended a sentence of community detention.   He submitted that, having regard to s 16 of the Act, the purposes and principles of the Act did not require the imposition of a sentence of imprisonment and that those purposes and principles could be addressed and met by the imposition of community detention.

Nothing in this Part limits the discretion of a court to impose a sentence of important on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

[13]     Mr Soondram also submitted that as the maximum penalty for both offences was three months, in imposing sentences in each case of two months the Judge must have started at very close to the maximum sentence in each case if the sentences were imposed after giving credit for guilty pleas.  He submitted the offending was not serious enough to have attracted such a high start point.

Decision

[14]     There are really two aspects to this appeal.  The first is whether, as a matter of principle, the Judge was entitled to impose sentences of imprisonment as opposed to community detention;  and secondly, if a sentence of imprisonment was open to the Judge, whether the end sentence of four months’ imprisonment can be said to be manifestly excessive or not appropriate in the circumstances of this case.

[15]     As to the first issue, while Mr Soondram is correct and there is a hierarchy of sentences provided for in the Act, it is clear enough that there is no principle of sentencing generally which requires a sentence in the next step up in the hierarchy to be tried before imposing a more severe sentence.   In appropriate cases a District Court Judge must be entitled to act sternly where the circumstances justify such an approach.  Each case must turn on it own particular facts and circumstances.

[16]     In this case the relevant circumstances are that the sentence of community work imposed on the appellant, which he failed to comply with, was itself imposed on  the appellant  for failure to  comply with  his  obligations  in  relation  to  fines. Further, while I accept it was not particularly serious offending, the appellant had a lengthy history of offending, particularly in relation to driving incidents.   He had previously been sentenced to community work.  He also had a conviction for failure to answer bail as Mr Smith has observed.

[17]     The failure to comply with the community work sentence was one thing, but the Judge was also faced with sentencing the appellant on the dangerous driving charge.  Driving at 168 to 170 kilometres per hour in a 100 kilometre per hour area is excessively dangerous at the Judge noted. While Mr Soondram submitted there were no other aggravating circumstances, if there had been, then the appellant would have faced other, more serious, charges.

[18]     The Judge was entitled to take into account the appellant’s very poor driving record and that this was a third occasion of dangerous or reckless driving.

[19]     The Judge was also entitled to take into account that the driving offending occurred at a time when the appellant was subject to the community work sentence.

[20]     Further,  while  the  probation  officer  had  recommended  a  sentence  of community detention, the probation officer had also noted the appellant’s non- compliance with community work did not bode well for further such sanctions and suggested it might be a barrier to compliance with community based sentences.  The report also noted that lying behind the appellant’s offending was a sense of entitlement and his propensity to associate with like minded individuals and that the appellant had a lack of motivation to address his particular offending.  It also noted that his history of compliance with Court imposed sanctions had been abysmal. When  the  issue  of  electronically  monitored  sentences  was  initially  raised  the appellant initially did not want to consent to such sentences but then agreed to consider compliance with them.  The probation officer noted that while the appellant needed to undertake a rehabilitative programme he remained unmotivated and was probably unsuitable for such an intervention.   The appellant was assessed as at medium risk of re-offending.

[21]     Through  counsel  I  am  told  that  the  appellant  subsequently  obtained employment and had shifted to address the concerns regarding his associates.  The Judge was aware of those facts.

[22]     Given the background of the particular offending and the circumstances of the appellant, including his history, I am not prepared to say that the Judge was in

error in taking the view that the need for deterrence and the appellant’s previous history meant that a sentence of imprisonment was required in this case.

[23]     As  to  the  period  of  imprisonment  I accept  the  force  of  Mr  Soondram’s submission that, on the face of the Judge’s sentencing notes, while acknowledging discounts were available for guilty pleas, it is difficult to see the allowance for the guilty plea.  While, as Mr Smith submitted, the guilty plea was entered at a late stage on the driving charge, it was entered at a relatively early stage on the breach of community work charge.  Given that the maximum sentence in each case for each offence was three months’ imprisonment, in the circumstances an end sentence of four months’ imprisonment having regard to the need to provide a discount for guilty pleas and also to take account of totality, was too long and was inappropriate.

[24]     I accept that to that extent the appeal should be allowed.  To take account of the totality of the offending and guilty pleas, a period of six weeks’ imprisonment is appropriate for the driving charge with a period of two weeks’ imprisonment for the breach of community work, in total eight weeks.

[25]     To  that  extent  the  appeal  is  allowed.     The  sentence  of  four  months’ imprisonment is quashed and in its place the appellant is sentenced to a sentence of eight weeks’ imprisonment.

[26]     That sentence addresses the Judge’s finding that a short sharp shock was required  for  this  particular  appellant  and  will  record  the  Court’s  concern  that offenders must comply with community work sanctions.

[27]     The appellant is to surrender to custody.

Venning J

Addendum

[28]     As the appellant has been on bail the sentence will start today.

Venning J