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

[2010] NZHC 390

This case has been anonymized

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: [phone] – 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 sentence.  On that charge you are convicted and you are sentenced to 300 hours community work and a final warning is noted on your file.  You are disqualified from holding or obtaining a drivers licence for a period of 15 months from 24 February 2010.

[19]      On the fines matters, as a part of the 300 hours community work I

am remitting $2,000 worth of fines.  The balance is to be paid at the rate of

$70 per week…

[6]      It appears from the way the Judge has expressed himself that the 300 hours was initially imposed only in relation to the driving while disqualified charge. Only subsequently was that sentence said to also reflect the remission of fines. But it is impossible  to  say whether  the  Judge  intended  there  to  be  a  discrete  proportion attributable to the remission of the fines. This makes it difficult for me to deal with the community work sentence because, as Ms Reed submitted, correctly, where a fine has been remitted under s 88(3) Summary Proceedings Act 1957 such an order is not to be viewed as part of a sentence for any offence that is unrelated to the

offence or offences in respect of which the fine was imposed.1  As a result I am

unable to deal with any sentence of community work imposed in relation to the remission of fines.

[7]      Having considered the circumstances explained to me by Mr P   I consider that 300 hours was manifestly excessive for the driving while disqualified charge. It was a serious matter because of Mr P  ’s prior history. However, there are difficulties because Mr P   says that the Prosecutor and the Judge proceeded on a wrong  understanding  of  that  history.  The  official  history  shows  five  prior convictions for driving while disqualified, the most recent being in 1997. Mr P   vehemently denies this and says that he had four previous convictions, the most recent in 1989.

1 R v King CA23/01 21 June 2001

[8]      It is unclear from the Judge’s sentencing notes precisely what information he took into account and what weight he put on the number of previous convictions and the age of those convictions.  The Judge does refer to offending within the last ten years but there is no detail provided as to what that offending is.  The exact number of convictions is probably less important – four or five are both a bad history. However,  the  age  of  the  convictions  was  something  that  should  have  been specifically taken into account; even on the Crown’s view the most recent conviction was 1997.   If Mr P   is right and the most recent conviction was 1989 then the prior convictions should all have been regarded as historical.  There is, however, no indication that the Judge took that fact into account.

[9]        Nor is there any indication that the Judge took into account Mr P  ’s guilty plea, which he was entitled to some credit for, even if conviction was inevitable.

[10]     Considering that the maximum term of community work possible is 400 hours I conclude that, taking into account the historical nature of most, if not all, of the previous driving convictions and the guilty plea, 300 hours was too high; 250 hours would have been a fair sentence. However, to substitute that sentence will inevitably risk interfering with the sentence imposed in relation to the remission of the fines, since 250 hours will only relate to the driving while disqualified charge.

[11]     Mr P   also wishes to address the Judge’s direction that the balance of the fines be repaid at $70 per week, which is significantly more than he had previously been paying and which, as a beneficiary, he cannot afford. Ms Reed pointed out that Mr P  ’s best remedy is to simply apply to the court for a further review of the repayment schedule of his fines.

[12]     Because the sentence imposed on the driving while disqualified charge is intertwined with the sentence imposed in relation to the remission of fines and I am unable to deal with the latter I find that the only solution is to quash the sentence of community  work  and  remit  the  matter  back  to  the  District  Court  for  further sentencing and a review of the fines situation.

[13]     At the time of his offending Mr P   was driving a 1991 Mitsubishi utility which is registered to S & K Fencing Limited, of which Mr P   was previously a director and shareholder.  The company has been struck off but no action taken by the Companies Office in relation to the vehicle.

[14]     The Judge made an order under s 129 for the confiscation of the vehicle. However, there is no indication in the Judge’s sentencing notes as to the basis upon which the order was made, though presumably he had concluded that Mr P   had an interest in the vehicle.  Although Ms Reed submitted that the Judge was right to conclude  that  the  appellant  had  an  interest  in  the  vehicle,  I  find  that  the preponderance of evidence was against Mr P   having an interest in the vehicle.

[15]     First, the vehicle was not registered in Mr P  ’s name. Secondly, prior to sentencing, Mr P   made a statutory declaration to the effect that he had no interest in the vehicle. The only information to the contrary was the police summary which stated that Mr P   had told the police officer that the car was “my vehicle”. However, as already noted, he disputes that and claims that his guilty plea was made, in part, in reliance on an indication from the Prosecution that it would not seek an order for confiscation.

[16]     During the course of the appeal it was suggested that the vehicle might have been owned by Mr P   prior to being registered to S and K Fencing Ltd. I asked Ms Reed to search the registration history of the vehicle, which she has now done. There is no record of Mr P   ever having been the registered owner of the vehicle. On the evidence available to both the District Court and to this Court it is apparent that there are insufficient grounds on which to make an order for the confiscation of the car.

[17]     The appeal against sentence is allowed. The sentence of community work is quashed and the matter is remitted to the District Court for a further sentencing hearing and a review of the payment arrangements for Mr P  ’s fines.

[18]     The order under s 129 Sentencing Act 2002 confiscating the vehicle is set aside.

P Courtney J