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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ross v Police

Details

AGLC: Ross v Police [2017] NZHC 2012
Case: [2017] NZHC 2012
Decision Date: 22 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Benjamin Duncan Ross appeals against the sentence of 15 months' imprisonment imposed by Judge AS Menzies in the District Court at Morrinsville on 11 July 2017. Mr Ross argues that the initial calculation of his sentence should have been 12 months' imprisonment, and that regardless, the sentence should have been one of home detention, with or without community work. The appeal was heard by Brewer J on 22 August 2017, who determined that the sentence should be substituted with one of 12 months' imprisonment. The appeal was allowed to the extent that the sentence of 15 months' imprisonment was quashed and a sentence of 12 months' imprisonment was substituted.

The legal issues before the court were whether the sentence was proportionate to the offending and whether the court erred in not considering home detention as an alternative to imprisonment. The court found that the uplift for the first incident was too great, and that the further increase of four months for Mr Ross's general history of offending was too great. The court also found that the 25 per cent discount was too great. The court found that a sentence of home detention was not appropriate in this case as Mr Ross's record of offending did not invoke serious prospects of rehabilitation, nor did it make imprisonment an inappropriate restriction on him.

The court found that the starting point of 12 months' imprisonment was within the range available and that an uplift of one month for the first incident was reasonable. The court found that an uplift of four months for Mr Ross's general criminal record was too great and that the uplift should have been two to three months. The court found that the 25 per cent discount was too great and that 20 per cent was generous. The court found that a sentence of 12 months or 13 months' imprisonment was appropriate in this case.

Orders