O'Docherty v Police

[2012] NZHC 3043

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-46 [2012] NZHC 3043

LIAM DAVID O'DOCHERTY

Appellant

v

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS, COMMUNITY PROBATION SERVICES

Second Respondent

Hearing:         14 November 2012

Appearances: B Kilkelly for Appellant

R D Smith for Respondent

Judgment:      14 November 2012

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence of 19 months imprisonment imposed by District  Judge  Coyle  on  28  August,  in  respect  of  charges  of  driving  while disqualified (third or subsequent x 3, theft of property, breaching community work x

2, wilful damage and giving false details to the police).

[2]      The structure of the sentence was that in respect of the charges of breaching community work x 2, the Judge considered the sentence should be cumulative in

nature and fixed a starting point of three months, allowed a discount for his guilty

O'DOCHERTY V NEW ZEALAND POLICE HC DUN CRI-2012-412-46 [14 November 2012]

plea, which he rounded up to one third, arriving at an end sentence in respect of the breach in community work of two months.   In relation to the driving charges, the Judge took a starting point of 18 months, uplifted for previous convictions in 2011 and 2007 and the fact that he had been offending on bail on a repetitive basis, and had an uplift of five months, ending with a provisional sentence of 23 months in respect of the driving charges, from which he allowed a full credit of a guilty plea of six months, arriving at an end sentence in respect of the driving while disqualified charges of 17 months.  He then added the breaches of community work sentence of two months, arriving at an end sentence of 19 months.

[3]      The point taken on appeal by Mr Kilkelly was fixing a starting point in respect to the driving charges of 18 months.  Mr Kilkelly has collected a number of authorities in his argument, being Peterson v Police,[1]  William v Police,[2]  and also

particularly  Te  Huia  v  Police[3]and  Royal  v  Police.[4]      I  am  satisfied  that  these

authorities would suggest, as Mr Kilkelly submits, that a starting point is more appropriately at 12 months rather than 18 months.  This was not seriously disputed by Mr Smith of the Crown.  Mr Smith argued, however, that the sentence was not manifestly excessive.

[1] Peterson v Police CRI-2009-419-11 High Court, Hamilton, 20 February 2009.

[2] William v Police CRI-2009-485-111 High Court, Wellington, 6 October 2009.

[3] Te Huia v Police CRI-2008-443-31 High Court, New Plymouth, 10 March 2009.

[4] Royal v Police CRI-2008-454-41 High Court, Palmerston North, 17 June 2009.

[4]      I am  satisfied,  however,  from  the accumulation  of authorities,  and  I put particular weight on Harrison J’s observations in Te Huia, that this sentence should be adjusted by taking a starting point of 12 months imprisonment in relation to the driving while disqualified charges.  I do agree there should be an uplift.  I am of the view, however, that it should not be for five months.   This is a young man of 22 years, the previous conviction in 2007 is some years before, and I think it more appropriate to have a three month uplift, which would take the sentence at this point to 15 months for the driving while disqualified.   I allow for a 20% plea of guilty reduction on the 15 months sentence, taking that down to 12 months.  I add in the two months for the breaches of community work as analysed by the Judge and reach

an end sentence of 14 months.

[5]      The  order  for  reparation  and  the  disqualifications  for  driving  are  not disturbed.

[6]      The result is that the appeal is allowed. The sentence of 19 months is reduced to 14 months.

Solicitors:

B Kilkelly, PO Box 1416 Dunedin –  [email protected]

Crown Solicitor, PO Box 803, Dunedin – R D Smith