Osikai v Police

[2015] NZHC 2952

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-454-0021 [2015] NZHC 2952

BETWEEN

CRUISE OSIKAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 November 2015
Counsel:	P S Coles for Appellant N J Wynne for Respondent
Judgment:	24 November 2015

JUDGMENT OF SIMON FRANCE J

[1]      Mr Osikai appeals a sentence of 13 months’ imprisonment for a charge of driving  while  disqualified  (third  or  subsequent).     It  was  Mr Osikai’s  eighth conviction  for  driving  while  disqualified.     On  this  occasion  Mr Osikai  was apprehended during a routine stop.  There was no particular aspect of his driving, other than his status as a disqualified driver, that caused concern.

[2]      The Sentencing Judge took a starting point of 18 months.  There was then a four month reduction for a guilty plea, and one month for other matters.1   The appeal is brought on the basis that the outcome is manifestly excessive.  Mr Coles analyses the sentence as being constructed of a 10 month’ starting point with an eight month uplift for past offending.2    He submits that an 80 per cent uplift is too great given there was no concern over his driving per se, and Mr Osikai had not previously been

subject to a sentence of imprisonment.

1      New Zealand Police v Osikai [2015] NZDC 16898.

2      This  is  based  on  the  analysis  in  Peterson  v  Police  HC  Hamilton  CRI-2009-419-000011,

20 February 2009.  That case was referred to by the Judge immediately before fixing a starting point.  In Petersen the starting point was 10 months and there was a seven month uplift for the fact it was offence six.

OSIKAI v NZ POLICE [2015] NZHC 2952 [24 November 2015]

[3]      In Keenan v New Zealand Police3 Dunningham J reviewed the authorities and identified two approaches – those where the number of previous convictions is built into the starting point,4  and those who where a nominal figure is allocated to the driving offence, and then there is an uplift.5   As is often observed it probably does not matter which approach is followed; however, a difficulty with the uplift approach is that increases of 80 per cent or more become inevitable.

[4]      That is the answer to Mr Coles’ submission on uplift.  I agree 80 per cent in relation  to  a  first  sentence of imprisonment  seems  excessive,  but  it  only arises because a 10 month starting point is only appropriate for a notional offence of third time driving while disqualified.  It is the uplift that must then capture the fact that it is  actually  offence  eight,  and  which  leads  to  such  big  uplifts.    That  is  why

Rodney Hansen J in Maxwell v Police preferred the global starting point approach.6

[5]      In Finch v R,7  an uplift of 14 months for disqualified driving offences five, six and seven was upheld in relation to an 18 year old.  In R v Butterfield8 a starting point of 18 months for offences eight and nine was upheld.  Whilst neither Court of Appeal decision purports to set a benchmark, the outcomes do suggest 18 months for

a single offence, albeit it number eight, to be at least near the top of the range.

[6]      For  offence  six,  Mr Osikai  received  a  sentence  of  home  detention  that appears to flow from a starting point of around 10 months’ imprisonment.   For offence seven he received community detention and community work, and he came to be sentenced on this occasion for a further offence committed ten months after the seventh.

[7]      Given it would be the first time the deterrent effect of imprisonment was to be tried, and given the lack of any aggravating features to the driving, I am satisfied a starting point of no more than 15 months’ imprisonment would be more in line

with authority.

3      Keenan v Police [2014] NZHC 1894.

4      Maxwell v Police [2013] NZHC 3172; Te Huia v Police HC New Plymouth CRI-2008-443-31,

10 March 2009.

5      Peterson v Police, above n 2; Keenan, above n 3.

6      Maxwell v Police, above n 4.

7      Finch v R [2013] NZCA 446.

8      Butterfield v R CA 110/97, 23 July 1997.

Conclusion

[8]      Applying the same deductions as the District Court, the appeal is allowed, the

sentence of 13 months’ imprisonment is quashed and in its place I substitute a

sentence of 10 months’ imprisonment.

Simon France J

Solicitors:

P S Coles, Solicitor, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North