Morrell v Police

[2014] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2014-483-00003 [2014] NZHC 856

BETWEEN

TED TAHITI MORRELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 April 2014
Appearances:	D M Goodlet for appellant L C Rowe for respondent
Judgment:	30 April 2014

JUDGMENT OF CLIFFORD J

[1]       On 12 November 2013  the appellant, Mr Morrell, was convicted after a defended hearing of one charge of driving while disqualified (third or subsequent), one charge of dangerous driving, and one of failing to stop for blue and red flashing lights.  Mr Morrell now seeks leave to appeal against the decision of Judge Moran to sentence him to one year and nine months’ imprisonment.   Mr Morrell says that sentence was manifestly excessive.

Leave

[2]      Mr Morrell was sentenced on 13 November 2013.  Any appeal was due to be filed by 11 December 2013.  Mr Morrell’s appeal was not filed until 11 March 2014.

[3]      The  Crown  acknowledged  that  Mr Morrell  had  had  difficulties  obtaining advice  and  representation  to  bring  this  appeal,  particularly  with  the  Christmas holiday  period  approaching.    Ms  Goodlet,  his  counsel  for  this  appeal,  did  not

represent him at his defended hearing and sentencing.

MORRELL v POLICE [2014] NZHC 856 [30 April 2014]

[4]      The  Crown  took  no  issue  with  the  delay  and  did  not  regard  itself  as prejudiced by it.   The Crown consented to leave being granted.   In those circumstances, I grant leave accordingly.

Circumstances of the offending.

[5]      Mr Morrell is 25 years old.  He was a patched member of the Mongrel Mob until a year ago.   He has since left the gang and has positive references from his employer.  He has nine previous convictions for driving while disqualified, the last in May 2012, and one for driving whilst his licence was suspended or revoked.

[6]      At 5.40pm on 3 July 2013, Mr Morrell was driving on a 50 km/h section of State Highway 1 in Bulls.  Mr Morrell, his brother and his two nieces aged 8 and 2 were in the car.  Mr Morrell was a disqualified driver at the time.

[7]      Police  attempted  to  stop  his  car  because  its  rear  lights  were  not  on. Mr Morrell did not stop when police activated their blue and red flashing lights. Instead he turned off the highway and accelerated, exceeding the speed limit and reaching speeds in excess of 130 km/h.  Police gave chase but lost sight of the car. A short time later police found the car had left the road and rolled onto its roof.  None of the occupants were hurt in the crash.

[8]      After the accident, Mr Morrell left the car and hid from the police.  When he was spotted by a policeman he fled the scene.

The challenged decision

[9]      The Judge adopted a starting point of 18 months’ imprisonment for driving while disqualified.  The Judge then imposed three months’ cumulative imprisonment on the dangerous driving charge.   In addition, the Judge imposed a 12 month disqualification period on the driving while disqualified charge, and three months’ cumulative disqualification on the failing to stop charge.   Mr Morrell’s sentence therefore was, in total, one year and nine months’ imprisonment plus one year and three months’ disqualification.

Principles on appeal

[10]     This is a first appeal against sentence under s 240 of the Criminal Procedure Act 2011.  Accordingly, the Court must allow the appeal if satisfied that “for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed”.1

[11]     Existing law sets out the factors that make a sentence “manifestly excessive”

and therefore in error:2

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence;  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to that particular kind of offending).

[12]     When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached.3

Grounds of appeal

[13]     Mr Morrell  submits  the  sentencing  Judge  erred  in  two  ways.    First,  the starting point of 18 months on the lead charge was manifestly excessive.  Second, the Judge failed to give sufficient credit for the personal mitigating factors of an improvement in Mr Morrell’s behaviour and the positive support of his employer.

Starting point

[14]     In support of Mr Morrell’s challenge to the starting point sentence identified by  the  Judge,  Ms Goodlet  referred  me  to  the  cases  of  Kauhou  v  Police,  R  v Butterfield, Maxwell v Police, Royal v Police and Rissetto v Police.4 Based on those

cases, Ms Goodlet’s submission was that starting point sentences of 18 months were

1      Criminal Procedure Act 2011, s 250(2).

2      R v Monkman CA445/02, 3 March 2003 at [6].

3      Ripia v R [2011] NZCA 101 at [15].

4      Kauhou v Police [2014] NZHC 140; R v Butterfield CA100/97, 23 July 1997; Maxwell v Police [2013] MZHC 3172; Royal v Police HC Palmerston North CRI 2008-454-41, 17 June 2009; Rissetto v Police [2013] NZHC 1633.

considered appropriate where a higher number of previous convictions for driving whilst disqualified were involved and/or where more than one conviction for such driving were being sentenced at the same time.  Twelve months was the appropriate starting  point  here.    There  was  no  challenge  to  the  three  months’ cumulative imprisonment on account of the dangerous driving charge, nor to the disqualification imposed.

[15]     For the police, Mr Rowe submitted that the cases relied on by Ms Goodlet do not support a 12 month starting point sentence and that the Judge’s 18 month starting point was well within range.

[16]     It is well-established that in such cases the number of previous convictions and frequently of offending dictate the culpability of the offence for which the sentence is imposed.5  Therefore, as Ronald Young J put it:6

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.

[17]     In Drinkwater Ronald Young J noted that for offending involving eleven previous driving whilst disqualified convictions, where seven occurred in the last

10 years, a start sentence at or close to the maximum of two years’ imprisonment

would have been justified.7   Mr Drinkwater faced a single current charge.

[18]     As noted, this is Mr Morrell’s tenth conviction for driving whilst disqualified: it is, in effect, his eleventh conviction for like offending, taking account of his previous conviction for driving whilst his licence was suspended or revoked.   In terms of the frequency of this offending, all of those convictions have occurred since August 2008, something just over six years, at the rate of virtually two a year.  Given

those factors, it is difficult to conclude that the starting point sentence identified by

5      Tua v Police [2013] NZHC 2994 at [15]; Te Huia v Police HC New Plymouth CRI-2008-443-31,

10 March 2009 at [15]; Maxwell v Police [2013] NZHC 3172 at [12].

6      Drinkwater v Police [2013] NZHC 1036 at [18].

7 At [20].

the Judge was out of range.   Furthermore, I do not think the cases Ms Goodlet referred to in any way challenged that conclusion either.  Whilst a number of them did involve contemporaneous sentencing for more than one charge of driving whilst disqualified, by my assessment the starting point sentence identified by the Judge properly responds to Mr Morrell’s offending in this instance.   A particularly disturbing aspect of that offending is its frequency.

Mitigation

[19]     In mitigation Mr Morrell provided a letter from his employer.   The Judge acknowledged that letter in the following way:8

Mr Morrell this is a good letter mate is it not? You are doing well at this job, you are highly thought of, these people want to have you back but you have blown it.  It must be a big disappointment to you and your whānau.

[20]     That the Judge did not, in those circumstances, apply any discrete reduction in sentence by reference to any mitigation factors is easily accepted.  It is clear that, notwithstanding the Judge accepting that for a time Mr Morrell had improved his personal position, that was balanced by other considerations.   Mr Morrell’s pre- sentence report identified a number of personal aggravating factors, in particular that Mr Morrell showed no remorse, believed that no-one was at risk because of his driving and was identified as being at high risk of re-offending.   I do not think, therefore, that the Judge erred in not providing a reduction for personal mitigating factors.

[21]     Taken overall, I therefore conclude that the sentence of 21 months imposed by the Judge cannot be regarded as being manifestly excessive.  In my view, it was well within range.

[22]     Mr Morrell’s appeal is, therefore, dismissed.

“Clifford J”

8      R v Morrell DC Marton CRI-2013-034-000181, 13 November 2013 at [1].

Solicitors:

D M Goodlet, Whanganui.

The Crown Solicitor, Whanganui.