Robarts v Police

[2014] NZHC 666

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-291 [2014] NZHC 666

BETWEEN

CARN ROBARTS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 March 2014
Appearances:	A J Maxwell-Scott for the Appellant H Musgrave for the Respondent
Judgment:	3 April 2014

RESERVED JUDGMENT OF ELLIS J (Appeal against Sentence)

This judgment was delivered by me on Thursday 3 April 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

A J Maxwell-Scott, Barrister, Auckland

H Musgrave, Meredith Connell, Auckland

ROBARTS v NEW ZEALAND POLICE [2014] NZHC 666 [3 April 2014]

[1]      Mr Robarts appeals against the sentence imposed upon him by Judge Sinclair in the Auckland District Court for a panoply of driving related offences, to which he had pleaded guilty. The sentence was as follows:

The facts of the offending

[2]      Mr Robarts’ offending occurred on two discrete occasions in 2012, three months apart.   It is relevant that four years earlier, he had been forbidden from driving until he had obtained the appropriate drivers’ licence.  Mr Robarts was a few months shy of his 20th birthday at the time of his offending.

First incident

[3]      On 21 May 2012, Mr Robarts was driving along Routley Drive in Glen Eden. A friend was in the passenger seat.

[4]      The Police activated their red and blue lights and sirens in an attempt to stop Mr Robarts.  But Mr Robarts sped away, driving at approximately 80 kph in a 50 kph area.  He overtook vehicles erratically on the wrong side of the road.  He increased his speed to 100 kph and then crashed into a parked car, and ricocheted into another.

[5]      Mr Robarts ran away and could not be found.  His friend remained in the car and was spoken to by Police.

Second incident

[6]      On 26 August 2012, Mr Robarts was driving on Blockhouse Bay Road, Avondale.  Four friends were also in the car.

[7]      A Police patrol saw the car swerve towards a parked car.  They activated the red and blue lights and sirens.

[8]      Mr Robarts pulled over and Police approached the car.   Before a breath screening test could be carried out, he accelerated away.

[9]      Police gave chase, with their red and blue lights and sirens activated.   Mr

Robarts was driving at approximately 100 kph.

[10]     Mr Robarts then stopped the car and deliberately reversed it into the Police car.  The bumper was punctured in two places and the car was forced back violently. Mr Robarts then accelerated away and again tried to reverse his vehicle into the following Police car.   The Police managed to take evasive action and avoided a collision.  Mr Robarts sped off again and crashed into a car which was parked on the other side of the road.  Mr Robarts got out of the car and ran into a neighbouring property.

[11]     When  he  was  found,  a  breath  test  showed  that  Mr  Robarts’  had  390 micrograms of alcohol per litre of breath.  This is over the legal limit for someone who is under 20 but under the limit for an adult.  Mr Robarts did not have a current and appropriate drivers’ licence.

The charges

[12]     In relation to the May 2012 offending Mr Robarts was charged with:

(a)       Failing to stop when followed by red/blue flashing lights: s 52(1)(c) Land Transfer Act 1988 (LTA); and

(b)      Dangerous driving: s 35(1)(b) LTA.

[13]     In relation to the August 2012 offending he was charged with: (a)     Driving in a dangerous manner: s 35(1)(b) LTA;

(b)      Driving with excess breath/alcohol (person under 20): s 57(1) LTA. (c)         Wilful damage: s 11(1)(a) Summary Offences Act 1981;

(d)Failing to stop when followed by red/blue flashing lights: s 52(1)(c) LTA;

(e)       Failing to remain stopped: s 52(1)(aa) LTA; (f)           Driving when forbidden: s 52(1)(c) LTA.

The Judge’s sentencing decision

[14]   Judge Sinclair noted that these were Mr Robarts’ first driving-related convictions.   She canvassed the contents of the pre-sentence report, noting in particular the comment that the offending was committed while he was under the influence of both alcohol and his peers.   The report recommended intensive supervision and community work.

[15]     Her  Honour  noted  that  Mr  Robarts  was  in  full-time  employment,  had completed a defensive driving course and was waiting to commence a CADS course. He had not breached his curfew while on bail and was still young.  She noted that his guilty pleas warranted a discount.

[16]     Judge Sinclair nonetheless described Mr Robarts’ offending as “shocking” and said that he had endangered the safety of a number of other people.  She said the rehabilitative steps he had taken went only some way to address the underlying causes of his offending.

3.5Her Honour explained that a lengthy period of disqualification was warranted to cater for the mandatory disqualification periods and to protect the public by keeping Mr Robarts off the road for a considerable period.

3.6Her Honour commented that Mr Robarts’ conduct during the second incident went further than simply panicking.   He deliberately drove into the Police car that was pursuing him.

[17]     The sentences imposed by Judge Sinclair were as follows: (a) 240 hours’ community work, comprising

(i)       90 hours’ on each of the two dangerous driving charges to be

served cumulatively;

(ii)      60 hours’ on the driving with excess breath alcohol charge to

be served cumulatively;

(iii)     60 hours’ on the wilful damage, to be served concurrently with

the other sentences of community work;

(b)      18 months’ intensive supervision on the dangerous driving, driving

with excess breath alcohol and wilful damage charges;

(c)       $5,000 in reparation for the damage caused to vehicles in the first incident; and

(d)Reparation of $690 for the damage caused to the vehicle in the second incident.

[18]     Her  Honour  also  disqualified  Mr  Robarts  from  driving  for  21  months. Although the notes are a little confusing on the issue that period appears to be made up as follows:

(a)       Six months’ on the first dangerous driving charge;

(b)       Five months’ on the excess breath alcohol charge (cumulative);

(c)       Three months’ for failing to stop (cumulative);

(d)Seven months’ on the second dangerous driving charge (cumulative on (a), (b) and (e) but concurrent with (c)1); and

(e)       Three months’ for the second failing to stop charge (cumulative).

1      This is where the original sentencing notes are a little unclear.

[19]     Mr Robarts was convicted and discharged on the driving whilst forbidden charge.

[20]     It is not clear from the sentencing notes whether or not the learned judge considered  the  totality  principle  or  what  discounts  she  applied  as  a  result  of mitigating personal factors and guilty pleas.

The appeal

[21]     Although the appeal against sentence as originally filed was broader in scope, Ms Maxwell-Scott focussed her oral submissions on the 21 months’ disqualification aspect which, she said, was plainly excessive, when viewed together with the other sentences.  She said that the Judge had failed to consider totality.  She took particular issue with the imposition of the cumulative five months’ disqualification for the EBA charge, given that, had Mr Robarts been four months older, he would not have been

committing an offence at all.2

[22]     In cases where an offender is being sentenced for a number of driving related offences it is commonly regarded as preferable for the Court to impose concurrent disqualification periods.3    That said, there will be cases, particularly where the offending occurs on separate occasions, that cumulative sentences will nonetheless be  appropriate.4    Moreover,  as  Ms  Musgrave  pointed  out,  where  a  person  is convicted of both failing to stop and dangerous driving in relation to the same incident, then s 52(5) of the LTA requires the Court to impose cumulative rather than concurrent sentences.

[23]     But the ability to impose cumulative sentences of disqualification and the requirements of s 52 do not obviate the need to consider totality.

[24]     In Mr Robarts’ case, the fact that he is in employment of course enabled the

Court to make a reparation order, which I have no doubt is significant for him financially.  And the fact of his employment also means that most of his spare time

2      There is a three month minimum disqualification period for this offence.

3      Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005.

4      Nicol at [32] and [33].

will be taken up with completing the sentence of community work and complying with the conditions of his intensive supervision.  There is thus a significant deterrent component in this combination of sentences.

[25]     Given  the seriousness  of Mr Robarts’ offending,  particularly in  terms  of potential harm to life and property, some period of disqualification was certainly required (both in principle and in terms of the LTA).   Equally, though, it must be recognised that these were his first driving convictions.  And as Panckhurst J noted in   Dixon   v   Police,   “it   has   long   been   recognised   that   lengthy  periods   of disqualification frequently prove so daunting for offenders that further offending

results”.5

[26]     Given Mr Robarts’ age and circumstances and the other sentences imposed upon him I have concluded that disqualification totalling 21 months was manifestly excessive.    The  appeal  is  therefore  allowed.    The  disqualifications  totalling  21 months are quashed.  In their place will be the following sentences:

(a)       Four months’ disqualification on the first dangerous driving charge;

(b)      Three months’ disqualification on the first failing to stop charge;

(c)       Six months’ disqualification on the second dangerous driving charge; (d)     Three months’ disqualification for the second failing to stop charge; (e)      Three months’ on the excess breath alcohol charge.

[27]     The periods of disqualification in (a) through (d) will be cumulative upon each other.  The period of disqualification in (e) is concurrent.  That gives a total

period of disqualification of 16 months.

Rebecca Ellis J

5      Dixon v Police HC Christchurch CRI 2006-409-000244, 19 March 2007.  To similar effect see also Van der Hayden v Police High Court Christchurch CRI 2010-409-35, 23 March 2010, at [11].