Ross v Police

[2017] NZHC 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2017-419-52 [2017] NZHC 2012

BETWEEN

BENJAMIN DUNCAN ROSS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 August 2017
Counsel:	C Nicholls for Appellant T A Needham for Respondent
Judgment:	22 August 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 August 2017 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Chris Nicholls (Lower Hutt) for Appellant

Almao Douch (Hamilton) for Respondent

ROSS v POLICE [2017] NZHC 2012 [22 August 2017]

Introduction

[1]      Mr Ross appeals the sentence of 15 months’ imprisonment imposed on him by Judge AS Menzies in the District Court at Morrinsville on 11 July 2017.1    He contends that 12 months’ imprisonment should have been the initial calculation, and, regardless,  the  end  sentence  should  have  been  one  of  home  detention,  with  or without community work.

Background

[2]      Mr Ross appeared for sentencing on four charges relating to two incidents.

[3]      In the first incident, Mr Ross was a passenger in a car being driven by his partner.  There was a disagreement.  The victim wanted to stop the car and began to brake.  Mr Ross insisted that she continue and grabbed the steering wheel, forcing the car to go in the direction in which he wanted to go.  He also grabbed the victim’s leg and forced it down on the accelerator causing the car to accelerate.  The victim lost control of the vehicle momentarily, there was a further brief physical struggle and the vehicle came to a stop.  One charge of assault and one charge of operating a vehicle dangerously arose from this incident.

[4]      The second  incident  occurred  on  16 March  2017  as  a  result  of Mr Ross driving a vehicle in Hamilton.  He was stopped at a checkpoint and initially provided false information as to his identity. The Police realised the details were false and that Mr Ross was driving while disqualified.  Arising from this incident are charges of driving while disqualified (third or subsequent occasion) and providing false particulars.

District Court sentencing

[5]      The principal sentencing factor identified by the Judge was Mr Ross’s record of offending.  Mr Ross had eight previous convictions for disqualified driving, five of  which  had  been  committed  since  March  2014.    Mr Ross  has  many  other

convictions, including for breaches of community work, supervision and community detention sentences.  He has previously served sentences of imprisonment.

[6]      The Judge said:2

As to disposal of the remaining matters, the starting point in my view certainly has to be the imposition of a period of imprisonment.  Your record Mr Ross is simply an appalling one in terms of the past offending of this type.    I have already detailed the total number of driving while disqualification convictions that are there.  You were given a final warning when sentenced to community detention in July 2015.  You offended again. Community  detention  was  imposed  in  that  case.     You  breached  the community detention.  I do not consider that any Court could responsibly re- impose the same sentence yet again for repeat offending that has occurred. The explanation that has been advanced, that you were the only sober driver, is one that is not uncommonly heard but it does not justify your complete ignoring of Court imposed conditions which is an ongoing pattern.  Nothing seems to deter you and certainly community detention does not deter you and your record has taken you, in my view, to the point where deterrence, the need to enforce Court orders and protect the community are the main priorities that arise in terms of the sentencing exercise.

[7]      The Judge adopted a starting point on the driving while disqualified charge of

12 months’  imprisonment.    He  increased  that  by  four  months  to  account  for Mr Ross’s  criminal  record  (excluding  the  history  of  driving  while  disqualified), making a total of 16 months’ imprisonment.   The Judge then added a further four months’ imprisonment to take account of the other charges before him.  That made a total of 20 months’ imprisonment.   The Judge considered that he should regard Mr Ross’s entering of pleas of guilty as occurring at the first reasonable opportunity and so afforded him a 25 per cent discount.  That is how the 15 months sentence was reached.

Discussion

[8]      Mr Nicholls, for Mr Ross, in well thought out submissions, accepts that the Judge’s starting point of 12 months’ imprisonment was within the range available. His criticisms focus on the uplifts.  He submits that the uplift for the general criminal record should have been no more than two months’ imprisonment.   Further, the additional uplift of four months for the first incident was manifestly excessive given the minor nature of the assault and momentary loss of control of the vehicle as a

result of Mr Ross’s actions.  The real weight of those charges, Mr Nicholls submits, was  carried  by  the  imposition  of  a  protection  order  in  favour  of  the  victim. Mr Nicholls submits that all that should have been done further in respect of the first incident  was  to  impose  a  sentence  of  community  work  in  conjunction  with  a sentence of home detention on the driving while disqualified charge.

[9]      Counsel  for  the  Crown  submits  that  the  starting  point  of  12 months’ imprisonment was generous to Mr Ross.  I am inclined to agree.  There is, of course, no tariff case in this area and there is, looking at the cases, a relatively wide sentencing range available to a Judge.  As always, it is difficult to directly equate cases because each has its own unique features.   In this case, the Judge did not discuss the charge of giving false particulars.3   This was an aggravating factor to the charge of driving while disqualified.  In my view, a starting point in the range of 12 to 15 months’ imprisonment was open.

[10]     I accept the submission that an uplift of four months’ imprisonment for the first incident was too great.  The assault and the reckless driving were at the lower end of the scale and, by themselves, would not have been met with a sentence of imprisonment.      It   was   appropriate,   where   the   lead   sentence   was   one   of imprisonment, to recognise the earlier incident as, in effect, an aggravating factor meriting a small uplift.   In my view, one month was reasonable.   If a sentence of home detention was ultimately found to be appropriate, then the incident could either increase the term of home detention or be reflected in a conjoint sentence of community work.

[11]     The  further  increase  of  four  months  for  Mr Ross’s  general  history  of offending  has  to  be  seen  in  the  context  of  the  starting  point  of  12 months’ imprisonment.    It  represents  an  increase  of  one-third.    That  is  high  given  his offending has not been met with imprisonment apart from three short terms imposed in 2009 for offending in 2008.

[12]     Uplifts for previous offending go to deterrence, denunciation and protection of the community.  If a person continually re-offends, and is not being deterred by

his sentences, then otherwise appropriate sentences will be increased for those purposes.

[13]     Crown counsel submits that Judge Menzies did not take into account the fact that the driving while disqualified offending took place while Mr Ross was on bail for the charges from the first incident.  This is an aggravating feature with its own significance.

[14]     I consider that an uplift of four months’ imprisonment for Mr Ross’s general criminal record was too great.  Given the aggravating factor of offending while on bail, the uplift should have been two to three months.

[15]     Having reviewed the case in this way, I consider that rather than an overall starting point of 20 months’ imprisonment being adopted, a final starting point in the range of 15 to 17 months was available.

[16]     As to discount, pleas of guilty to the driving while disqualified and giving false particulars charges were entered on the morning of trial. Apparently these were amended charges.

[17]     For the assault and reckless driving charges, Mr Ross intimated a guilty plea on his first appearance on those charges which was on 21 April 2017.  However, he failed to appear on the next call of the case which was 26 May 2017.  He made a voluntary appearance on 6 June 2017 and entered his guilty pleas on 9 June 2017.

[18]     Considering this history, together with the open and shut case on the driving while disqualified (third or subsequent offence) charge, the 25 per cent discount was too great.   That is the maximum discount available and should not be given as a default discount.  I think that 20 per cent is generous.

[19]     It follows that whereas Judge Menzies came to a final sentence of 15 months’ imprisonment, I would have reached a sentence of 12 months or 13 months’ imprisonment.

Home detention

[20]     Mr  Nicholls  submits  that  the  Judge  failed  to  expressly  consider  home detention  as  an  alternative  to  imprisonment.    That  is  correct.    As  I  read  the sentencing notes, the Judge was aware of home detention as an option but simply dismissed it as an available sentence in this case.   The pre-sentence report had a home detention annex and the writer of the report indicated that home detention was technically available as a sentencing option but did not recommend it.

[21]     Mr  Nicholls  submits  that  home  detention  was  the  appropriate  sentence because it was technically available, home detention is a sufficiently deterrent sentence,   and   driving   while   disqualified   is   essentially   a   victimless   crime. Mr Nicholls addressed the fact that Mr Ross failed to complete a home detention sentence  in  2008,  when  aged  just  18,  but  points  out  that  Mr Ross  has  not subsequently had the sentence imposed.  Further, when looking at Mr Ross’s record of non-compliance with conditions of community detention and community work, he submits there are signs that Mr Ross is maturing and accepting the discipline of his sentences  because  he  completed  his  last  sentence  of  community  detention  (six months commencing 4 March 2016) without apparent breach.

[22]     So far as personal circumstances are concerned, Mr Nicholls submits that the Judge should have taken into account that Mr Ross “was a stay at home dad who was working hard to look after his son”.

[23]     I now turn to look at whether the sentence should be commuted to one of home detention.  I do that afresh since there is no analysis by Judge Menzies.

[24]     I  accept  that  a  sentence  of  home  detention  carries  with  it  qualities  of deterrence and denunciation.   It is available to a Judge where a short term of imprisonment would be the appropriate sentence but, in the overall circumstances of the case, the purposes and principles of sentencing would better be served by commuting the sentence to one of home detention.  In appropriate cases, the personal circumstances of the offender can lead the Court to place greater emphasis on rehabilitation with the conclusion that home detention is the least restrictive sentence available.

[25]     In Mr Ross’s case, his record of offending does not invoke serious prospects

of rehabilitation, nor does it make imprisonment an inappropriate restriction on him.

[26]     Mr Ross is 27 years old.  He began offending in 2007 when he was 17 years old and he has been offending ever since.  His offending in 2008 resulted in three sentences of imprisonment for aggravated robbery, driving while disqualified (third or subsequent offence) and burglary.

[27]     In 2014, among other offending, Mr Ross breached community work and failed to answer Police bail.  He continued to drive while disqualified.  In 2015, he again breached community work, continued to drive while disqualified and, in 2016, was convicted of breaching conditions of community detention, a charge laid on a representative basis.

[28]     His current offending was committed while on bail and while he was living in the environment in which he would serve any sentence of home detention.

Result

[29]     I allow the appeal to the extent that the sentence of 15 months’ imprisonment is quashed and a sentence of 12 months’ imprisonment is substituted.

Brewer J