P v Police Cri-2009-404-361 HC Auckland - [2010] NZHC 390

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000361

P
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 8 March 2010

Appearances: Appellant in person
R S Reed for Respondent

Judgment: 10 March 2010 at 4:30 pm

RESERVED JUDGMENT OF COURTNEY J ON APPEAL AGAINST SENTENCE

This judgment was delivered by Justice Courtney on 10 March 2010 at 4:30pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar
Date……………………….

Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629 – R Reed

Copy to: K P , 11 Leilani Place, Red Hill, Papakura 2110

P V NZ POLICE HC AK CRI-2009-404-000361 10 March 2010

Introduction

[1] Mr P appeals his sentence of 300 hours community work together with

15 months disqualification imposed in respect of one charge of driving while disqualified (third or subsequent) to which he pleaded guilty on the ground that the sentence was manifestly excessive.

[2] Mr P also appeals an order made under s 129 Sentencing Act 2002 confiscating the motor vehicle that he was driving on the ground that he has no interest in it.

[3] Mr P represented himself at the appeal. He said that he had pleaded guilty on the basis of his understanding as to what the prosecutor would seek by way of sentence and did so notwithstanding there were facts in the police summary that he disagreed with. In particular, the summary stated that he had told the officer that the vehicle was “my vehicle”, which he denies saying. He says that he told the prosecutor that he had no interest in the vehicle and understood that the prosecutor would not seek confiscation of the vehicle.

Community work

[4] At the time of the sentencing Mr P requested that his outstanding fines incurred on unrelated matters be remitted. These exceeded $10,000. The Judge remitted $2,000 of the fines and ordered that Mr P repay the balance at $70 per week. In doing so the Judge Blaikie indicated that the remission of the fines was partly reflected in the 300 hours community work imposed on the driving while disqualified charge, but did not indicate what the respective proportions were. Before I consider whether the community work sentence was manifestly excessive for the driving while disqualified charge I need to consider the interface between that sentence and the remission of the fines.

[5] Mr P seemed to equate the 300 hours community work with the $2,000 in fines that were remitted and was aggrieved because it represented a very low hourly rate equivalent. It is clear, however, that the community work sentence was primarily

related to the driving while disqualified charge, though some confusion is understandable when one considers the sentencing notes:

[18] You have two matters that I am dealing with. The first is the issue of you driving whilst disqualified. You having appeared in court on serious criminal charges involving motor vehicles in the past. You are seeking a community based…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P v Police Cri-2009-404-361 HC Auckland

Details

AGLC: P v Police Cri-2009-404-361 HC Auckland [2010] NZHC 390
Case: [2010] NZHC 390
Decision Date: 10 March 2010

CaseChat Overview and Summary

In the case of P v New Zealand Police, the appellant, Mr. P, appealed against his sentence of 300 hours of community work and a 15-month disqualification from driving, imposed for driving while disqualified. The appellant argued that the sentence was manifestly excessive and that the confiscation of his vehicle under section 129 of the Sentencing Act 2002 was unjust. The court heard the appeal on 8 March 2010, with the appellant representing himself and Ms. Reed appearing for the respondent. The judgment was delivered by Justice Courtney on 10 March 2010.

The primary legal issues in this case were whether the sentence imposed for the driving while disqualified charge was manifestly excessive and whether there were sufficient grounds for the confiscation of the appellant’s vehicle. The court needed to determine if the 300 hours of community work was appropriate for the driving while disqualified charge, given the appellant's prior convictions and the remission of fines. Additionally, the court had to assess whether the confiscation order was justified, considering the appellant's claim that he had no interest in the vehicle.

Justice Courtney found that the 300 hours of community work was indeed manifestly excessive for the driving while disqualified charge. The court noted that the 300 hours was primarily imposed in relation to the driving charge, though there was some confusion regarding the remission of fines. The court was unable to determine if the community work sentence also reflected the remission of fines, which made it difficult to assess the sentence's appropriateness for the driving charge alone. Considering the appellant's prior history, the court concluded that 250 hours would have been a fair sentence. However, due to the intertwined nature of the community work sentence and the remission of fines, the court could not substitute a reduced sentence without potentially interfering with the fines repayment arrangement. Consequently, the court quashed the community work sentence and remitted the matter back to the District Court for further sentencing and a review of the fines.

Regarding the confiscation of the vehicle, the court found that there were insufficient grounds for the confiscation order. The vehicle was registered to a company, and the appellant had made a statutory declaration stating that he had no interest in the vehicle. There was no record of the appellant ever being the registered owner of the vehicle, and the only contrary evidence was a statement from the police summary that the appellant claimed he did not make. The court set aside the confiscation order.

In conclusion, the appeal against the sentence was allowed. The sentence of community work was quashed, and the matter was remitted to the District Court for further sentencing and a review of the fines. The order under section 129 of the Sentencing Act 2002 confiscating the vehicle was also set aside.

Orders