Paikea v Police
[2013] NZHC 2466
•20 September 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2013-488-000020
CRI-2013-488-000021 [2013] NZHC 2466
BETWEEN SELWYN JAMES PAIKEA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 20 September 2013
Appearances: S K Ellis for Appellant
C M Gisler for Respondent
Judgment: 20 September 2013
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Whangarei
Copy to: S K Ellis, Whangarei
PAIKEA v NZ POLICE [2013] NZHC 2466 [20 September 2013]
[1] Following a defended hearing in the District Court at Whangarei the appellant Mr Paikea was convicted on two charges of driving while suspended, two charges of providing false information, one of dangerous driving and one of failing to stop.
[2] On 27 June 2012 the appellant was the driver of a Mazda motor car stopped by police in Christchurch. His licence was taken from him. He was confirmed as a suspended driver.
[3] Then on 20 July 2012 he was the driver of a Ford motor car stopped by the police at Dargaville. Three weeks later he was the driver of a BMW motor car stopped by the police in Whangarei. In relation to that second incident the appellant drove off at speeds estimated at approximately 100 kilometres per hour in a 50 kilometre hour area. His driving was such that the police abandoned the chase. That led to the dangerous driving charge.
[4] Judge Duncan G Harvey sentenced Mr Paikea, the appellant, to 18 months’ imprisonment on the first incident of driving whilst suspended and disqualified him from driving for 12 months. In relation to the second incident of driving whilst suspended, he sentenced Mr Paikea to 12 months’ imprisonment cumulative and disqualified him from driving for a period of 18 months, to follow the expiry of the first disqualification.
[5] On the charge of dangerous driving the appellant was convicted and sentenced to one month’s imprisonment, concurrent. On the remaining charges he was convicted and discharged. The effective term of imprisonment was 30 months.
[6] Mr Paikea appealed against conviction and sentence. Counsel confirms the appeal against conviction is not to be pursued. It is withdrawn by leave.
[7] The appeal against sentence is pursued on the ground that the sentence of 30
months’ imprisonment was manifestly excessive and that in this case a sentence of
20 months’ imprisonment or less would have been sufficient. Ms Ellis made the point that in sentencing of this nature where cumulative sentences have been imposed it is often in situations where there is drink driving offending as well as driving whilst disqualified. Counsel has referred to a number of decisions of this Court that have discussed recidivist drink drivers. Counsel notes the Crown relies on
the case of R v McQuillian1 and submits that that case reflects worse offending than
the present and also involved an offender with high breath and blood alcohol levels.
[8] To put the matter in context the maximum penalty for a third or subsequent offence of driving a motor vehicle while a driver licence’s is suspended is two years’ imprisonment. The Court must also order the person be disqualified from holding or obtaining a driver’s licence for one year or more.
[9] The cumulative sentence imposed in this case was 30 months or two and a half years. The maximum sentence available to the Judge on a cumulative basis was four years’ imprisonment.
[10] The appellant’s past history is the particularly relevant factor in this case. He has an appalling history of driving related offending. He has at least 21 previous convictions for driving whilst disqualified or suspended, in addition to eight convictions for driving with excess breath alcohol, two of careless driving, one of dangerous driving, three of reckless driving causing injury and at least four for providing false details to the police. The appellant surely must rank amongst one of the worst kind of types of recidivists in this area. His record discloses he is a danger to other road users.
[11] Of concern is the remarks in the pre-sentence report that he displays little remorse or concern for his driving offending, that his risk of re-offending and harm to the community is assessed as high and that he has entrenched pro-criminal and anti-social behaviours with limited or no motivation to change.
[12] Although the offences in the present case are of the same kind, it was open for the Judge to impose cumulative sentences to achieve an end sentence at an
1 R v McQuillian CA129/04, 12 August 2004.
appropriate level to reflect the seriousness of the offending and the offender’s background. The sentence is not out of proportion to the gravity of the offending in the particular case having regard to s 85(2).
[13] I note that in R v McQuillian the Court of Appeal observed that the cumulative sentenced imposed:2
reflected the failure of previous short terms of imprisonment for drink driving offences to bring home to the appellant his responsibilities, and the need to deter him from further repetition of his offending in the interest of public safety.
[14] While Ms Ellis makes the point that that case involved drink driving I consider that the dangerous driving in the present case clearly satisfies the requirement for risk to public safety but further, a person such as the accused who has been disqualified from driving because of offending, including drink driving in the past on several occasions, presents a risk to the public whilst driving. McQuillian is authority for the Court of Appeal’s approval of cumulative sentences being appropriate in certain cases.
[15] There is a further Court of Appeal decision which I consider to be relevant. It is referred to in one of the High Court authorities Ms Ellis referred to. In Hughes v R the Court of Appeal held that the sentencing Judge was entitled to impose cumulative sentences in the circumstances of that case.3 The Court said:4
The appellant’s recidivism in relation to similar offending was a factor the Judge was entitled to take into account as an aggravating circumstance calling for a deterrent sentence. It was open for the Judge to conclude that the appellant’s case was within (or at least near to) the most serious of that kind and that the combination of offences was such that concurrent sentences would not adequately reflect the overall culpability of the offender.
[16] There comes a time when an offender, such as the appellant in this case, has to face the consequences of his past and repeated offending. That time has been
reached by this appellant. In the circumstances of the present case, given his past
2 R v McQuillian, at [24].
3 Hughes v R [2012] NZCA 388.
4 At [20].
history, the sentences imposed by the District Court Judge on the appellant were
within range. The appeal is dismissed.
Venning J