Peterson v Police

[2012] NZHC 672

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-000014

CRI-2012-425-000015 [2012] NZHC 672

DAVID ALLAN PETERSON

Appellant

v

NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS Respondents

Hearing:         4 April 2012

Appearances: S Claver for Appellant

R W Donnelly for Respondent

Judgment:      4 April 2012

JUDGMENT OF CHISHOLM J

[1]      This an appeal against a sentence of 22 months imprisonment arising from driving whilst disqualified (his 11th), breach of a sentence of community detention, and a re-sentencing for the offence of driving whilst disqualified that resulted in the sentence of community detention.   The appellant had pleaded guilty to the two offences and had consented to the resentencing.

Offending history

[2]      Although the appellant was only 27 years of age at the time of sentencing, he had amassed 10 convictions for driving whilst disqualified: 2002 (3); 2003 (2); 2004,

PETERSON V NEW ZEALAND POLICE HC INV CRI-2012-425-000014 [4 April 2012]

2005; 2008 (2); and a further conviction on 25 July 2011.  Apart from those offences the appellant also has other offences, but they are of no direct relevance to this appeal.

[3]      The driving whilst disqualified offence for which the appellant was sentenced on 25 July 2011 attracted a sentence of 2 months community detention which was due to expire on 25 September 2011.  However, the appellant breached that sentence on 10 September 2011 by failing to attend, and he ultimately absconded.

[4]      The appellant’s  most  recent  driving whilst  disqualified  offence (the  11th)

occurred on 14 September 2011. That was the day before he absconded.

Sentencing

[5]      Having  adopted  a  starting  point  of  1  year  for  the  11th   driving  whilst disqualified  offence,  the  Judge  uplifted  that  by  one  year  to  reflect  aggravating features personal to the appellant (including that he was serving a sentence of community detention and that he had numerous previous convictions).   Then the Judge applied a 25% discount to reflect the guilty plea.  This produced a sentence of

18 months imprisonment.

[6]      On the re-sentencing the Judge started at nine months imprisonment, uplifted that sentence by three months to reflect “your previous convictions to that point” which took him to 12 months imprisonment. Then the Judge took into account:

[11]      ...the fact that you served a very short period of time on community detention as punishment for that offence and your guilty plea which entitles you to the maximum credit of 25%...

Allowing a discount of four months (33%) a sentence of eight months imprisonment, cumulative on the 18 months, was reached.

[7]      Then the Judge turned to the breach of community detention.   Taking two months as a starting point, he added one month for previous breaches and then reduced the sentence to two months to reflect the guilty plea.

[8]      Having reached a total sentence of 28 months imprisonment the Judge then applied the totality principle.  He concluded that the sentence should be reduced to

22 months, which was the ultimate outcome.  This was made up of 18 months for the

11th   driving  whilst  disqualified  plus  a  cumulative  four  months  for  the  previous driving whilst disqualified on which he had been re-sentenced.

This appeal

[9]      Obviously this was not a particularly straight forward sentencing exercise and I have been assisted by both Mr Claver and Mr Donnelly in determining what should happen.

[10]     Two primary points are made by Mr Claver:  First on the strength of Meredith v Police[1]  and Moon v Police[2]the sentence for the 11th  driving whilst disqualified should have been seven to 12 months rather than 18 months.   Secondly, the cumulative sentence for the earlier driving whilst disqualified did not adequately take into account that the appellant had served six out of the eight weeks of the community detention.  Mr Claver also raised the issue of double counting which had

been identified in Mr Donnelly’s submissions.

[1] Meredith v Police HC Auckland, CRI-2010-404-000157, 19 July 2010

[2] Moon v Police, HC Whangarei, CRI-2010-488-0007, 9 July 2010

[11]     Although Mr Donnelly accepted that there might have been an element of double counting when it came to taking into account previous convictions, he submitted that this was cured by the totality step taken by the Judge when he reduced the proposed sentence by six months imprisonment.  Mr Donnelly also emphasised that it is the end result rather than the path by which it is reached that is relevant.

Conclusions

[12]     Meredith v Police involved an appeal to this Court against a sentence of seven months imprisonment for an 11th  excess breath alcohol offence and an 11th offence of driving whilst disqualified.   Not surprisingly the appeal was dismissed

with  Wylie  J  commenting  that  “other  Judges  may  have  taken  a  rather  sterner

approach”.  Wylie J also commented that denunciation and deterrence are important in  the  case  of  a  recidivist  offence  who  has  paid  little  or  no  heed  to  previous sentences.   I do not accept that the light sentence imposed on Mr Meredith in the District Court set a benchmark that might be relevant to this appeal.

[13]     Moon v Police also involved an appeal to this Court.  In that case the appeal was against a sentence of two and a half years imprisonment for an 11th conviction of excess breath alcohol and a 16th  conviction for driving whilst disqualified.  The appellant had pleaded guilty.   Heath J dismissed the appeal, commenting that a starting point of between three years, nine months and four years imprisonment would have been within range.  Again I do not consider that that decision offers any particular guidance on this occasion.

[14]     Given that this was an 11th  driving whilst disqualified it seems to me that a starting point close to the maximum of two years must have been open to the Judge. While I accept that double counting should be avoided and that there is a possibility of double counting in this case, the focus must be on the end sentence of 18 months imprisonment.   The issue is whether that was beyond the range available to the Judge.  The process by which it was reached is of secondary importance.  Given the

attitude of the appellant and the fact that this was his 11th  conviction I do not think

that it could be concluded that the sentence of 18 months was beyond the range available to the Judge.  But it was certainly right at the top.

[15]     On the other hand, I have been persuaded that the cumulative four months imprisonment on the re-sentencing gave rise to an overall sentence that was manifestly  excessive.    While  in  some  senses  it  might  have  been  true  that  the appellant had served a “very short period of time” on community detention, the reality is (as Mr Claver pointed out) that the appellant had served three quarters of that sentence.  That needed to be reflected in the re-sentencing process.  Arguably there was also an element of double counting to the extent that the Judge again took into account the appellant’s previous record.

Result

[16]     To remedy that situation I am going to reduce the sentence imposed on the re- sentencing from four months imprisonment to one month imprisonment.  That means that the total sentence will be reduced from 22 months imprisonment to 19 months imprisonment.   Also, to avoid any confusion, the sentence of two months imprisonment for the breach of community detention will be concurrent with the other sentences.

Solicitors:

Simon Claver, P O Box 6273, Dunedin 9059  [email protected]

Preston Russell, 92 Spey Street, Invercargill 984