Ross v Police
[2014] NZHC 2388
•30 September 2014
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 respondentJudgment:
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 voices, had an underlying psychiatric condition. The Judge said there might be something in that, or on the other hand that might just be a “con” by Mr Ross. The Judge acknowledged he did not know which was the case.
[12] The Judge then said:
[6] You are at an age now of 24. That gives real cause for concern, because I know that if I impose a custodial sentence on you, inevitably I am just handing you into the gangs.2 If I do not impose a custodial sentence and leave you in the community, I am potentially placing the community at risk, because you do not seem to want to take responsibility for your own behaviour.
[7] Now I can see the logic in what Mr Nicholls is suggesting [a non- custodial outcome accompanied by appropriate supervision], and perhaps against my better judgement I am going to deal with you in this way. I will deal with the driving offences in a minute, and I put to one side the burglary charges.
[13] It was on that basis that the Judge imposed the sentences he did, and adjourned sentencing for the burglary charges. He said:
[8] On the breach of bail you will simply be convicted and discharged, and putting aside the burglary charges and the driving whilst disqualified charges, on all the others I am going to sentence you to two years’ intensive supervision on the conditions as set out in the probation report.
[9] On the driving charges you are going to be off the road for a substantial period of time. I will do it for three years from today. You are off the road for three years from today.
[10] Now that leaves the burglary charges. I am not going to sentence you on those today, I am going to adjourn that. I am going to adjourn it for a period of four months and if you re-offend, or do not comply with your sentence of intensive supervision, then those burglary charges are hanging over your head and you will go to prison. Do you understand me? [Yes.] And my view of it is that a term of two years plus is appropriate. So you
2 Mr Ross had, when younger, been a prospect for the Mongrel Mob. It would appear that he was not a member of a gang at the time of his sentencing.
know what awaits you if you do not comply with the sentence I have imposed.
Case on appeal
[14] For Mr Ross, Mr Nicholls submitted that concurrent sentences of 18 months on each of the four driving whilst disqualified charges is what he would ordinarily have expected to be imposed as a maximum. Noting difficulties in locating relevant District Court cases, Mr Nicholls referred to two sentences of disqualification of
12 months on four charges of driving whilst disqualified (two previous convictions), and on three charges of driving while disqualified (two previous).3 He also referred to a 14 month disqualification on one such charge with 17 previous convictions.4 He also noted comments in a High Court case5 – where a term of disqualification of three years was, on appeal, reduced to two years – that “three years disqualification
for cases where no bodily injury had resulted was an unusually long term”. I note that was a case dealing with disqualification following driving offending. On that basis Mr Nicholls submitted that the three year disqualification imposed on Mr Ross was manifestly excessive.
[15] For the police Ms van Echten submitted that the disqualification period, while stern, was within the available range. Ms van Echten referred to a number of cases in support of that proposition.6 Ms van Echten further argued that, as Harrison J stated in Te Huia v Police, it is the act of driving while disqualified and the degree of its repetition which sets the starting point.7 Here, she noted, Mr Ross drove for a fourth, fifth, sixth and seventh time while disqualified or suspended. He also had a number of convictions for other driving related offences, being operating a vehicle carelessly (2008), driving with excess blood alcohol (2007) and being an unlicensed driver and failing to comply with a prohibition (2012). His most recent offending was compounded by the fact that on one occasion he was driving a car he had earlier
stolen and he attempted to evade police by driving off from the check-point. The
3 Farrell v Police HC Tauranga AP 31/02, 27 March 2003; Tua v Police [2013] NZHC 2994.
4 Farrell v Police, above n 3; Tua v Police, above n 3; Heyder v Police HC Rotorua CRI 2008-
463-63, 16 October 2008;
5 Galligan v Police HC Auckland CRI-2004-404-160, 6 August 2004.
6 Murdoch v Police HC Invercargill CRI-2009-425-18, 22 September 2009; Royal v Police HC Palmerston North CRI-2008-454-41, 17 June 2009; Hindrup v Police [2012] NZHC 1173; Gibbons v Police [2013] NZHC 2136; Bailey v Police [2013] NZHC 110.
7 Te Huia v Police HC New Plymouth CRI-2008-443-31, 10 March 2009 at [15].
police had also sought disqualification of the appellant pursuant to ss 124 and 125 of the Sentencing Act 2002, on the basis that the appellant drove a vehicle in the commission of an offence, namely using a credit card for pecuniary advantage.
[16] The sentence imposed by the Judge was, in all other respects, lenient and the Judge was concerned to ensure the safety of the public and appropriately penalise the appellant for his disregard of his driving suspension. In these circumstances the appeal should be dismissed.
Analysis
[17] I have found the task of considering this appeal, given the number of cases to which I was referred, less than straightforward. There is also the complicating factor that almost all those cases involved, as here, other offending and in most of them a sentence of imprisonment was imposed, together with the period of disqualification. In that context, it is not easy to compare the disqualification imposed on Mr Ross with other periods of disqualification considered on their own. To help my own analysis, I have prepared the following table, the contents of which are reasonably
self-explanatory:
Case Charges Previous Other charges Other sentence Disqualification Murdoch 3 13 1 4 months’ home detention 3 years Royal 6 8 5 20 months’ imprisonment 3 years Hindrup 1 20 1 14 months’ imprisonment 3 years Gibbons 2 1 12 2 yrs 4 months' imprisonment,
18 months’ disqualification
12 months Bailey 2 7 - 12 months’ imprisonment 15 months Farrel 4 2 2 8 months’ imprisonment 12 months Tua 1 17 1 350 hours community work 14 months Heyder 3 2 2 7 months’ home detention 12 months Ross 4 3 18 2 years’ supervision 3 years
[18] As can be seen, Mr Ross’ sentence of three years’ disqualification – assessed by reference to his driving whilst disqualified offending alone – is, by my assessment, considerably out of line. When considered in that light, Mr Nicholls’
submission that a disqualification period of 18 months would be appropriate can be seen to be a reasonable one.
[19] The question becomes, in my view, whether the fact that Mr Ross was not sentenced to imprisonment with respect to that (or any other) offending, together with the aggravating features Ms van Echten identified, bring that sentence into range.
[20] Having said that, I acknowledge that the sentence the Judge imposed on these charges must be seen in the context of the overall sentencing exercise he carried out. He was concerned to keep Mr Ross out of jail. He was also concerned to address the possible underlying psychiatric condition that had been identified. He clearly tailored his sentence with these objectives in mind. The period of supervision and the period of disqualification were – subject to Mr Ross complying with the supervision order - Mr Ross’s effective sentencing for the offending taken as a whole, including the burglary offending.
[21] What is noticeable, in terms of the sentences of three years’ disqualification imposed in Murdoch, Royal and Hindrup, is the considerably greater number of previous convictions for driving whilst disqualified. Imprisonment was not imposed in Murdoch. In Royal the driving whilst disqualified occurred over an eight month period so there was, in that case, a greater number of charges faced, a longer period of offending and a higher number of previous relevant convictions. In Hindrup, the sentence was imposed not only for driving whilst disqualified, but also excess blood alcohol – again third or subsequent.
[22] In Gibbons, an overall starting point sentence of three years and six months was imposed, of which two months was the uplift for the driving whilst disqualified offending. A discrete disqualification period of 12 months was imposed for that offending. The 13 other charges involved dishonesty, including three charges of unlawfully taking motor vehicles and one charge of theft of a motor vehicle, breaches of protection order and cultivation of cannabis. A period of two and a half years’ disqualification imposed by the District Court Judge for the dishonesty (motor
vehicle) charges was reduced on appeal to 18 months, concurrent with the 12 months for the driving whilst disqualified.
[23] By my assessment, with reference to those four cases, and even though not accompanied by a sentence of imprisonment, the three years’ suspension imposed by the Judge is out of line and manifestly excessive.
[24] I reach the same conclusion when the sentence is compared to the cases of Bailey, Farrell, Tua and Heyder. Bailey and Farrell are perhaps of the most assistance as there the driving whilst disqualified charges formed all (Bailey) or the greater part (Farrell) of the charges for which sentencing was imposed. In both cases a sentence of imprisonment was imposed. In Bailey that was 12 months, together with 15 months’ disqualification, for two charges of driving whilst disqualified where there were seven previous convictions. Farrell was a decision on appeal. There a sentence of 18 months’ imprisonment had been imposed and a period of disqualification of 12 months, for four current charges where there were two previous convictions. That was reduced on appeal to eight months’ imprisonment, with leave being granted to apply for home detention and deferment ordered. The disqualification period of 12 months was not altered.
[25] When considered in this context, I am therefore satisfied that the period of three years was manifestly excessive. It is often emphasised that in sentencing for multiple offences the central issue is the appropriate total sentence and that, on appeal, the Court is concerned with the total sentence rather than its structure.8
However, internal relativity between sentences is also required. In R v Williams, in
the context of considering concurrent sentences of imprisonment, the Court of
Appeal held that:9
Not only is the person sentenced entitled to have displayed by the Court the view it takes of the seriousness of each offence but it is also important that records of the sentences imposed give some indication of the gravity of each offence …
8 See for example R v Dodd [2013] NZCA 270; R v M [2008] NZCA 112; R v Xie [2007] 2 NZLR
240 (CA); Houston v R [2013] NZCA 581.
9 R v Williams [1988] 1 NZLR 748 (CA) at 752.
[26] This principle is also applicable here. Despite the overall leniency of the sentencing, the gravity of the driving whilst suspended offending does not in my view justify a disqualification of three years.
[27] By my assessment, the appropriate sentence here is of two years’ disqualification, that is Mr Ross will be disqualified for the same period during which he is to be subject to intensive supervision (subject to compliance and not being sentenced for the burglary offending).
[28] I also bear in mind that if Mr Ross successfully completes his sentence of intensive supervision, then to add a further period of a year’s disqualification could be counterproductive at that point.
“Clifford J”
Solicitors:
C Nicholls, Barrister, Lower Hutt for appellant.
Crown Solicitor, Wellington for respondent.
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