Ngaata v Police HC Wellington CRI 2010-485-73

[2010] NZHC 2032

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-73

PAUL NGAATA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 August 2010

Counsel:         V C Nisbet for Appellant

I R Murray for Respondent

Judgment:      27 August 2010 at 10am

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 10am on the 27th day of August 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The  appellant  appeals  against  a  sentence  of  six  months  imprisonment imposed on a charge of driving while disqualified, it being a third or subsequent offence.    The  appeal  is  brought  on  the  grounds  that  the  sentence  imposed  is

manifestly excessive and inappropriate in the circumstances.

NGAATA V NEW ZEALAND POLICE HC WN CRI-2010-485-73  27 August 2010

[2]      The appellant was caught driving on 29 April 2010 and charged with driving while  disqualified,  having  been  convicted  at  least  twice  previously  of  such  an offence.  A guilty plea was entered on 15 June 2010.

[3]      In  sentencing  Judge Treston  noted  that  the  appellant  has  eight  previous convictions for driving while disqualified extending from 1996 to 2009.  He noted that there were also other driving convictions.   He noted the probation officer’s report for community detention though the Court might consider imposing a term of imprisonment.    He  referred  to  the  need  for  the  Court  to  hold  the  appellant accountable for the harm done to the community in general by this persistence of behaviour in breaching the law in this way.   He noted the need to denounce the appellant’s conduct in the strongest possible way and imposed a sentence to deter him from offending in this way again, to protect the community.   The Judge expressed   the   view   that   the   only  appropriate  response   now   is   a   term   of imprisonment.   He noted and gave credit for the plea of guilty.   He imposed a sentence of six months imprisonment, with a further 18 months disqualification and an order that the appellant not have an interest in a motor vehicle for the next 12 months.

[4]      Mr Nisbet for the appellant was not aware that the appeal had been listed for hearing.   The appeal was called when Mr Nisbet was in Court on another matter. However, Mr Nisbet indicated that he was content for the matter to be dealt with now and did not seek an adjournment.

[5]      Mr Nisbet’s submission is that the imposition of a sentence of imprisonment was overly severe, and that a sentence of home detention would have been appropriate.

[6]      The   appellant   has   undergone   sentences   increasing   in   severity,   from community service, to a fine, to periodic detention on three occasions, to community work on two occasions and latterly community work and community detention.  The next step in the hierarchy of sentencing would have been home detention.  The Judge determined  that  that  would  not  adequately  reflect  the  circumstances.    I  do  not consider that the Judge can be held to have erred in taking that view of the matter.

There is no principle of sentencing which requires that a sentence in the next step up in the hierarchy of sentences should be tried before imposing a more severe sentence. The Judge was entitled to take the view that enough was enough and that a sterner response than home detention was required.   Accordingly, I find that the sentence imposed was not manifestly excessive and the appeal must be dismissed.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Wellington for Respondent

V C Nisbet, Barrister and Solicitor, Wellington for Appellant