IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-463-18
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…
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- Case
- [2018] NZHC 858
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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