Ross v Police - [2014] NZHC 2388

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-63 [2014] NZHC 2388

BETWEEN
BENJAMIN DUNCAN ROSS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 September 2014

Appearances:

C J Nicholls for appellant
A R van Echten and S C Carter for respondent

Judgment:

30 September 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Benjamin Ross, came before Judge Grace on 16 July 2014 for sentencing on some 22 charges overall, including burglary (x 3), taking and using a credit card (x 8), theft from a car (x 2), unlawfully taking a motor vehicle (x 2), breach of community work (x 1) and driving whilst suspended/disqualified (x 4).1

[2] The Judge:

(a) convicted and discharged Mr Ross on the breach of community work charge;

(b)sentenced Mr Ross to two years’ intensive supervision on the remaining charges, excluding those of burglary and driving whilst
disqualified;

1 Police v Ross DC Hutt Valley CRI-2014-096-000966, 26 July 2014.

ROSS v POLICE [2014] NZHC 2388 [30 September 2014]

(c) sentenced Mr Ross to three years’ disqualification on the driving

charges; and

(d) adjourned sentencing on the burglary charges for four months.

[3] Mr Ross now appeals against that three year disqualification period on the grounds that it is manifestly excessive. Mr Ross seeks leave to amend his notice of appeal to include the fourth charge of driving whilst suspended which was, in error, omitted from his original notice of appeal. The Crown does not oppose the inclusion of that charge, and leave is granted accordingly.

Background

[4] The 22 charges Mr Ross faced reflected a “spree” of offending.

[5] On 17 March 2014 Mr Ross stole a wallet from an unlocked car in Eastbourne. Over the next three days he used a credit card from the wallet on eight occasions to obtain cash and credit totalling $1,900.

[6] On 21 March, Mr Ross and an associate burgled three rooms at a

backpacker’s lodge in Thorndon taking computers, cell phones and wallets.

[7] Mr Ross was suspended from driving for three months on 18 February 2014 for having excess demerit points.

[8] Mr Ross was stopped by the police when driving on 29 March, 4 April,

19 April and 21 April 2014. On 19 and 21 April, Mr Ross was driving a stolen car. On 21 April Mr Ross drove off from the police check-point, and was located a short time later.

[9] A number of the later offences in the “spree” would appear to have been

committed whilst Mr Ross was on bail for the earlier of those offences.

[10] Mr Ross has three previous offences for driving whilst disqualified, the offences having been committed on 26 February 2008, 1 May 2008 and

24 September 2008. Mr Ross also has a 2012 conviction for failing to comply with a prohibition as an unlicensed driver.

The challenged sentencing decision

[11] In sentencing Mr Ross, the Judge faced something of a dilemma. A psychiatric report indicated that Mr Ross, who said he had been hearing…

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 [2014] NZHC 2388
Case: [2014] NZHC 2388
Decision Date: 30 September 2014

CaseChat Overview and Summary

Benjamin Duncan Ross appeals the three-year disqualification period imposed on him for driving while disqualified, arguing it is manifestly excessive. The Crown does not oppose the inclusion of the fourth charge of driving while suspended, which was omitted from the original notice of appeal, and leave to amend is granted. The court must decide whether the disqualification period is excessive and, if so, determine an appropriate sentence. The court's analysis involves comparing the disqualification period imposed on Mr Ross with other cases, noting the number of previous convictions, other charges, and sentences imposed. The court finds that, while the sentence imposed by the Judge was lenient overall, the three-year disqualification period is considerably out of line when assessed by reference to Mr Ross's driving while disqualified offending alone. The court concludes that the appropriate sentence is two years' disqualification, concurrent with the two years' intensive supervision imposed for the other charges, subject to compliance and not being sentenced for the burglary offending. This decision ensures internal relativity between the sentences imposed and appropriately penalises Mr Ross for his disregard of his driving suspension.

Orders