Penney v Police
[2016] NZHC 816
•27 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-64 [2016] NZHC 816
BETWEEN BRIAN PENNEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 April 2016 Counsel:
J Grainger for Appellant
C Cross & Ms Scott for RespondentJudgment:
27 April 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 27 April 2016 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Meredith Connell, Auckland
PENNEY v NEW ZEALAND POLICE [2016] NZHC 816 [27 April 2016]
[1] Mr Penney pleaded guilty to four charges under the Land Transport Act 1998 that arise from his driving a motor vehicle on 23 December 2015, as well as one further charge of breaching prison release conditions. He appeared before Judge Ronayne in the Auckland District Court on 16 February 2016, where he was sentenced to 27 months imprisonment and 18 months disqualification from driving.
[2] Mr Penney appeals against the length of the term of imprisonment imposed; he does not seek a community based sentence. Nor has he appealed against the disqualification from driving.
Factual background
[3] The primary offending occurred at approximately 5am on 23 December 2015. Mr Penney was driving a vehicle through a residential area in Orakei when Police activated their flashing red and blue lights and sirens behind him. Mr Penney did not stop. He drove off at speeds of up to 115km/h through narrow, winding suburban roads where the posted speed limit was 50km/h.
[4] While travelling at speed, Mr Penney failed to navigate a tight right hand bend. He lost control of his vehicle, mounting the footpath and crashing over a metal safety barrier. His vehicle crashed down a cliff and into the rear of a residential property.
[5] At the time of his arrest, Mr Penney exhibited signs of recent alcohol consumption. Upon analysis, an evidential breath test sample was found to contain
663 micrograms of alcohol per litre of breath.
[6] In a separate incident, following his release form an earlier term of imprisonment Mr Penney failed to report to his probation officer when directed to do so. The first instance of failing to report occurred only three days after Mr Penney was inducted into his release conditions.
District Court decision
[7] Mr Penney pleaded guilty at his first appearance to the following charges:
Offence Section / Act Maximum penalty Driving whilst
disqualified, third and subsequent
Land Transport Act
1998, ss 32 (1)(a) and
32(4)2 years imprisonment Failing to stop, third and
subsequent
Land Transport Act
1998, ss 114(2) and
52(4)3 months
imprisonment
Driving with excess breath
alcohol
Land Transport Act
1998, s 56(1)
3 months
imprisonment
Reckless driving Land Transport Act
1998, ss 7(1) and 35(2)
3 months
imprisonment
Breach of release
conditions
Sentencing Act 2002,
s 92(1)
1 year imprisonment
[8] He received a total sentence of two years, three months imprisonment.
Personal circumstances
Prior convictions
[9] Mr Penney has a total of 99 previous convictions, although 30 of those convictions were handed down in the Youth Court. He has 23 previous convictions for breaching various court orders including 11 previous convictions for driving whilst disqualified or suspended. Mr Penney also has 9 previous convictions for driving offences (excluding those for driving whilst disqualified or suspended).
[10] Mr Penney has been sentenced to a term of imprisonment on 13 previous occasions in relation to 30 separate convictions, most recently in February 2015.
[11] On 2 February 2015 Mr Penney was sentenced in relation to three charges of failure to answer District Court bail, one charge of driving whilst disqualified and one charge of failing to stop when required (third or subsequent). He was sentenced to one year’s imprisonment and was disqualified from driving for one year and one day. Mr Penney was apprehended in relation to the present charges less than 11 months later.
Pre-sentence report
[12] The probation officer found that Mr Penney demonstrated limited insight into his offending and appeared unmotivated to change. Key factors identified as contributed to his pattern of offending were his use of alcohol, an offending- supportive attitude and a sense of entitlement.
[13] The probation officer assessed Mr Penney’s likelihood of reoffending as high and considered that he presented a medium risk of harm to others. The officer also noted that Mr Penney had a low ability to comply with community based sentences, as demonstrated by numerous previous breaches recorded in the system.
[14] For these reasons, the probation officer recommended a sentence of imprisonment and subsequently release on conditions.
Appeal against sentence
[15] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
[16] for any reason, there is an error in the sentence imposed on conviction; and
[17] a different sentence should be imposed.
[18] In any other case, the Court must dismiss the appeal.1
[19] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2 Further, despite s 250 making no express reference to “manifestly excessive” sentences, this principle is “well-engrained” in
the court’s approach to sentence appeals.3
1 Criminal Procedure Act 2011, s 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
3 At [33], [35].
[20] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.4
[21] No sentencing notes from the District Court were available in respect of this appeal. Counsel for Mr Penney, Mr Grainger, submitted that in the absence of any sentencing notes, the hearing should proceed as if Mr Penney were to be sentenced de novo. The Crown agreed with this approach. Mr Grainger accepted that if Mr Penney were sentenced de novo and if the sentence that would be imposed by the High Court was not manifestly excessive compared to the sentence imposed by the District Court, then no adjustment in sentence would be required.
Submissions
[22] Much of the exchange between Bench and Bar revolved around whether the sentencing approach should be concurrent or cumulative. Mr Grainger advocated for an approach that featured two categories of offending for which the Court would impose cumulative sentences. The first covered the disqualified driving and breach of release conditions offences, as these involved a breach of legal orders; and the second covered the driving offences, all of which occurred at the same time thus supporting a concurrent approach for all sentences within the second category.
[23] The Crown agreed that the sentencing should acknowledge two categories of offending but here the categorisation differed. The Crown considered that all the offending under the Land Transport Act should be dealt with on a concurrent basis. The breach of release conditions, which was a separate type of offence and which occurred at a different time, was placed in a separate category and was to be dealt with cumulative upon the other sentences.
[24] Whilst counsel each approached the sentencing exercise differently the result they each arrived at was a lower sentence than that imposed in the District Court.
4 Ripia v R [2011] NZCA 101 at [15].
Discussion
[25] All the offences under the Land Transport Act occurred on the same day. They each involve an offence under the same legislation and they occurred as part of a connected series of events. So, I consider that in accordance with s 84 of the Sentencing Act 2002 those offences should be dealt with together on a concurrent basis.5
[26] Mr Grainger noted that there are two established approaches to determining a starting point in respect of driving whilst disqualified. The first approach, which he termed the Drinkwater6/Maxwell7 approach, incorporates previous convictions into the starting point (with no further uplift in respect of those convictions). The second approach, which he termed the Peterson8/Keenan9 approach, involves a fixed nominal starting point with an uplift for previous convictions.
[27] In my view the latter approach is preferable. It is consistent with the approach in Taueki and the Sentencing Act 2002.10 With a Taueki approach the choice of a starting point is determined by the circumstances of the offending, with the circumstances and characteristics of the offender forming part of any adjustment up or down depending on whether they are seen to be aggravating or mitigating features.11 In R v Columbus the Court of Appeal described the Taueki approach as serving:12
The dual purposes of transparency and of providing a basis for assessing consistency between cases[.]
5 Mr Grainger referred me to Hughes v R [2012] NZCA 388 as authority for the proposition that driving while disqualified was different in kind from the other driving offences, and so it should be dealt with separately on a cumulative basis. I do not read Hughes to support that approach. In Hughes the Court of Appeal upheld a cumulative approach, which was taken in a sentencing for driving and disqualified driving offences, on the ground such an approach was permissible. At the same time the Court of Appeal recognised that the choice of concurrent or cumulative sentences was influenced by the facts of the particular case. There is nothing in Hughes that tells against a Court imposing concurrent sentences for driving and disqualified driving offences.
6 Drinkwater v Police [2013] NZHC 1036.
7 Maxwell v Police [2013] NZHC 3172.
8 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
9 Keenan v Police [2014] NZHC 1894.
10 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769.
11 See also R v Lowe CA62/05, 4 July 2005 at [31].
12 R v Columbus [2008] NZCA 192 at [13].
[28] Whilst Columbus is a case about burglary sentences, the same issue regarding the inclusion of previous offending of the offender when setting a starting point arises in burglary sentences. This is because Senior v Police, a tariff case on burglary sentences by the Full Court, provides for previous offences of the offender to be taken into account when setting a starting point for a recidivist burglar.13
However, Senior pre-dates Taueki and the Sentencing Act, which have led to a
general change in sentencing. Since Taueki, courts have recognised that the better approach in terms of maintaining transparency and consistency in sentencing is to follow a Taueki approach when it comes to sentencing recidivist burglars.14
[29] I consider that the reasons for favouring a Taueki approach in burglary sentencing and abandoning the approach followed in Senior are equally applicable when it comes to setting a starting point for disqualified driving offending. The starting point can then be uplifted to reflect previous offences committed by the offender. There is nothing about sentencing for recidivist disqualified drivers that suggests a departure from the standard approach since Taueki should be entertained.
[30] When imposing an uplift for previous offending, the court must exercise caution to ensure that previous convictions are not double counted. The offence of “driving whilst disqualified (third or subsequent)” is a separate offence from that of “driving whilst disqualified” and carries a higher maximum penalty of two years’ imprisonment. Where an offender is charged with his or her first count of “driving whilst disqualified (third or subsequent)” it will not be appropriate to impose an uplift in respect of previous offending, since those previous convictions are reflected in the nature of the offence itself. However where, as here, the offender has previously been convicted on a number of charges of “driving whilst disqualified (third or subsequent)”, a further uplift may well be appropriate.
[31] I consider, therefore, that the appropriate approach in the present case is to take the disqualified driving offence as the lead offence15 and to set a starting point
that reflects the seriousness of this offence.
13 Senior v Police (2000) 18 CRNZ 340 (HC).
14 See R v Columbus [2008] NZCA 192; Gibbs v Police [2015] NZHC 2460 at [11].
15 This is the most serious offence the appellant committed in terms of the maximum penalty available.
[32] There is no tariff case relating to the offence of driving whilst disqualified. Mr Grainger did however identify a number of comparable cases in his submissions.
[33] In Hawthorne v Police, the appellant was convicted of a sixteenth offence of driving whilst disqualified.16 The appellant had been driving at 67km/h in a 50km/h zone in an unwarranted vehicle. Dunningham J upheld a sentence of nine months’ imprisonment (a starting point of six months, uplifted by three months for prior offending) and remarked that sentences of “a year to 18 months for driving whilst disqualified offences at this level are available.”17
[34] In Drinkwater v Police, the appellant was convicted on his eleventh offence of driving whilst disqualified.18 The District Court imposed an overall starting point of 16 months imprisonment (ten months with an uplift of six months for previous convictions), which was upheld by the High Court on appeal. Ronald Young J noted that the overall sentence for offending would inevitably be greater if there were features that aggravated the driving.
[35] In Maxwell v Police, the appellant was convicted on two charges of driving whilst disqualified, being his eleventh and twelfth convictions respectively.19 At the time when he committed the latter offence, the appellant was on bail awaiting sentencing for the former offence. The District Court adopted an overall starting point of 20 months imprisonment (12 months, uplifted by 8 months to reflect “an atrocious history and offending whilst on bail”).20 The High Court upheld the starting point on appeal.21
[36] In Peterson v Police, the appellant was convicted on his sixth offence of driving whilst disqualified.22 A starting point of ten months’ imprisonment was uplifted by seven months to take account of his previous convictions and criminal
history.
16 Hawthorne v Police [2016] NZHC 243.
17 At [8].
18 Drinkwater v Police [2013] NZHC 1036, above n 6.
19 Maxwell v Police, above n 7.
20 At [7].
21 At [16].
22 Peterson v Police, above n 8.
[37] I consider that a sentence of 11 months’ imprisonment is within the range of sentences for this offence. I consider that an uplift of three months’ imprisonment is warranted to cover the other driving offending that occurred at the same time as the disqualified driving.
[38] This is the appellant’s twelfth disqualified driving offence. This is an aggravating factor that ordinarily would call for an uplift of between six and eight months’ imprisonment. However, here the appellant has a significant criminal history reflecting a wide range of offending. To reflect the full range of his offending I consider that the uplift for aggravating features of the offender should be
11 months. This brings the sentence to one of 25 months’ imprisonment before
mitigating factors are taken into account.
[39] The Crown accepts that the appellant is entitled to a guilty plea discount of
25% as he pleaded guilty at the first opportunity. This reduces the sentence of imprisonment to one of approximately 18 months imprisonment.
[40] There is then the sentence for breaching release conditions. I consider that a sentence of three months’ imprisonment is appropriate for this offending. The breaches occurred relatively soon after his release from prison, which is an aggravating factor of this type of offending.23 The appellant failed to report on three occasions when he was required to do so.
[41] He is entitled to a discount of 25% for this offending to reflect his early guilty plea. This reduces the sentence to one of approximately two months and one week imprisonment, which I propose to round down to two months’ imprisonment.
[42] When the two groups of sentences are added together the total comes to a sentence of 20 months’ imprisonment, which in terms of the gravity of the offending accords with the totality principle.
[43] The end sentence that I have reached is considerably less than the end sentence imposed in the District Court. This leads me to conclude that the sentence
23 See Crosswell v Police [2012] NZHC 2435.
imposed in the District Court is manifestly excessive, and so the appeal against sentence should be allowed.
[44] Mr Grainger advised me that the pre-sentence report recommended a series of release conditions if the appellant were to receive a short sentence of imprisonment. There was no opposition to those conditions being imposed if the appeal resulted in a short sentence of imprisonment. I consider that those conditions may be of assistance in the appellant’s rehabilitation and accordingly the conditions are imposed.
Result
[45] The appeal against the sentence of imprisonment imposed in the District
Court is allowed and the sentence is quashed.
[46] For the offence of driving while disqualified, third and subsequent I impose a sentence of 18 months’ imprisonment. For the offences of failing to stop, third and subsequent, driving with excess breath alcohol and reckless driving I impose sentences of 2 months’ imprisonment. These sentences are to be served concurrently with the 18 months’ sentence of imprisonment.
[47] On the offence of breach of release conditions I impose a sentence of two months’ imprisonment to be served cumulatively on the sentence of 18 months’ imprisonment for the disqualified driving third or subsequent offence.
[48] I impose special conditions on release as set out in the pre-sentence report, these being:
1.To attend an assessment for a programme for drink driving directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
2.Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or
counselling as recommended by the assessment to the satisfaction of the Probation Officer.
3.To attend an assessment for any other appropriate programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
Duffy J
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