Rennie v Police HC Auckland CRI-2011-404-000174

[2011] NZHC 1940

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000174

STEVEN LINDSAY RENNIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 October 2011

Counsel:         G Wells for Appellant

M Walker for Respondent

Judgment:      10 October 2011

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Geoffrey Wells, PO Box 6078, Wellesley Street, Auckland 1141. Crown Solicitor, Auckland.

RENNIE V POLICE HC AK CRI-2011-404-000174 10 October 2011

[1]      The appellant appeals against a sentence of 18 months intensive supervision imposed on him on 14 March 2011 by Judge Russell Johnson following his pleas of guilty to driving while disqualified (third or subsequent offence) and breaching his prison release conditions.   At the same time he was disqualified from holding or obtaining a driver’s licence for a minimum period of one year and one day from

28 April 2011.

Facts

[2]      On 9 July 2009 the appellant was disqualified from driving for an indefinite period.   On 6 January 2011 he was stopped driving a motor vehicle in Tauranga. When asked for his particulars, he provided false details.

[3]      The appellant  was  released  from  prison  on  17  February 2010  subject  to release conditions for 15 months.   On 19 January 2011 the appellant agreed, and signed  a  written  instruction,  to  report  to  his  probation  officer  at  11:00  am  on

18 February 2011.  He failed to report as directed and did not telephone his probation officer to explain his absence.  He had failed to report on four previous occasions.

[4]      The pre-sentence report dated 26 April 2011 was not favourable.  It stated:

It is apparent that Mr Rennie lacks insight into his offending behaviour and until he addresses the underlying factors that lead to his offending his risk will escalate.

[5]      Nonetheless, it recommended a sentence of intensive supervision although it did not recommend any particular length of sentence.

[6]      The notes of Judge Johnson on sentencing, read as follows:

[1]       You have nine previous convictions for driving while disqualified, going right back into the 1960s.   So it is not surprising that the probation officer says that you lack insight into your offending because if you know what you are doing and you are still doing it it is surprising, so here we go again.

[2]       On the charge of giving false or misleading information as to your identity which attracts a maximum penalty of a fine, you are convicted and discharged without further penalty.

[3]      On the driving while disqualified you are convicted and sentenced to intensive supervision which is 18 months.

[4]      Special conditions are:

(a)      That  you  be  assessed  for  and  complete,  if  suitable,  a

Departmental programme;

(b)       You reside at an approved address and not move from that address including overnight without written permission of the probation officer;

(c)       And you are to attend counselling or other protections as directed;

(d)       You are disqualified from holding or obtaining a driver’s licence for the minimum mandatory period of one year and one day, from today.

[5]     On the breach of release conditions you are convicted and sentenced to intensive supervision for 18 months, on the same terms.

[7]      One of the grounds set out in the notice of appeal prepared by the appellant himself states that because the Judge did not like his lawyer, the lawyer did not speak on his behalf.

[8]      It therefore does not appear that Judge Johnson was advised that following his arrest on 6 January 2011 and after discussing matters with the arresting officer, the appellant attended an approved alcohol and drugs assessment centre in Tauranga. As  a  result  of  that  assessment,  the  New  Zealand  Transport  Agency  had  on

25 February 2011 removed the indefinite disqualification imposed on 7 May 2009 that formed the basis for one of the two offences before the Court.

[9]      Because there is no evidence that this material was before Judge Johnson at the date of the sentencing two months later, I am able to allow the appeal and vary the sentence so as to give credit to the appellant for his voluntary efforts at rehabilitation.

[10]     I am of the view, however, that a period of intensive supervision is still warranted.   I accordingly reduce the sentence of intensive supervision to one of

12 months.  Twelve months is also sufficient time to enable the appellant to complete

one or other of the rehabilitation programmes mentioned on page 4 of the pre- sentence report.

[11]     The appeal is accordingly allowed and the sentences of intensive supervision of 18  months  are  quashed  and  replaced  with  sentences  of 12  months  intensive supervision. The special conditions which are varied slightly, are:

(a)       That  the  appellant  be  assessed  for  and  complete,  if  suitable,  a

Departmental programme.

(b)The appellant is to reside at an approved address and not move from that address without written permission of the probation officer.

(c)       The appellant is to attend counselling or other treatment as directed.

(d)      The  appellant  remains  disqualified  from  holding  or  obtaining  a

driver’s licence for the minimum mandatory period of one year and

one day from 28 April 2011.

Woolford J