Russell v Police - [2018] NZHC 858

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-18

[2018] NZHC 858

BETWEEN
AIDAN DOUGLAS RUSSELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
30 April 2018

(Heard at ROTORUA)

Appearances:

W Nabney for Appellant

S J P Davison for Respondent

Judgment:

30 April 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

RUSSELL v NEW ZEALAND POLICE [2018] NZHC 858 [30 April 2018]

[1] Mr Russell pleaded guilty in the District Court to a charge of driving whilst disqualified in its aggravated form. He has seven previous convictions for driving whilst disqualified. He also pleaded guilty to a charge of giving false details as to his identity. That is a fine only offence.

[2] On 19 February 2018, Judge Coyle sentenced Mr Russell to nine months imprisonment.1 In doing so he rejected a submission by his counsel that a sentence of home detention was appropriate. Mr Russell contends the Judge erred in principle when fixing the starting point and adding an uplift for previous convictions. He also contends the Judge erred in imposing a sentence of imprisonment rather than home detention.

The facts

[3] The facts of the offending are unremarkable. Mr Russell was disqualified from driving for a period of six months on 9 June 2017. At 3 am on 19 September 2017 the police stopped Mr Russell whilst he was driving a motor vehicle in Mt Maunganui. When asked for his details, Mr Russell gave a false name and date of birth. When the police discovered his true identity, he told him he was on his way to meet his brother.

The Judge’s decision

[4] The Judge took a starting point of nine months imprisonment to reflect the gravity of the offending. He then added an uplift of three months to reflect the fact Mr Russell has been convicted on seven previous occasions of similar offending. He gave Mr Russell a discount of three months, or 25 per cent, to reflect early guilty pleas. This resulted in the end sentence of nine months imprisonment.

The appeal

[5] On Mr Russell’s behalf, Mr Nabney contends the Judge erred in two respects. First, he submits there was no need to apply an uplift to reflect previous convictions because the previous convictions were already reflected in the starting point of nine months imprisonment. Secondly, he contends the Judge erred in principle in rejecting

1 New Zealand Police v Russell [2018] NZDC 3038.

the proposition that a sentence of home detention was appropriate. Mr Nabney bases one aspect of this submission on the fact that the Judge did not give express recognition to the fact that Mr Russell’s last conviction for similar offending had been in 2008. Mr Nabney contends that if the Judge had given weight to this factor, he ought to have decided that a sentence of home detention was appropriate.

Decision

[6] I uphold Mr Nabney’s submission in relation to the first ground of appeal. The starting point…

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.

Keep reading for free

Create a free CaseChat account to read Russell v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 858
Decision Date: 30 April 2018

CaseChat Overview and Summary

In the case of Russell v Police, the appellant, Mr. Russell, was appealing a sentence imposed on him by Judge Coyle in the District Court for driving while disqualified, which he had done in its aggravated form, and providing false identity details to the police. Mr. Russell had previous convictions for driving while disqualified, and had pleaded guilty to both charges. The court was required to determine whether the sentencing judge had erred in principle when setting the starting point for the sentence and adding an uplift for previous convictions, as well as whether the sentence of imprisonment was appropriate or if home detention would have been more suitable.

The court found that while the starting point of nine months imprisonment reflected the gravity of Mr. Russell's offending and his previous convictions, there was no need to add an uplift for previous convictions. The court also considered that the judge's decision to impose a sentence of imprisonment instead of home detention was not erroneous, given Mr. Russell's history of breaching court orders and sentences, as well as his apparent defiance towards authority. The court held that the sentence of imprisonment was appropriate, and therefore dismissed the appeal in part, modifying the sentence to six months and two weeks imprisonment to account for the appellant's guilty plea.

Orders