S v Police HC Christchurch Cri-2008-409-57

[2008] NZHC 948

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000057

S

Appellant

v

POLICE

Respondent

Hearing:         19 June 2008

Appearances: A Bailey for Appellant

D M Orchard for Crown

Judgment:      19 June 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]     This is an appeal against sentence.   It concerns the total length of the disqualification period imposed in respect of two charges of driving while disqualified.

[2]      As at November 2007, the appellant was a disqualified driver, having been convicted on 15 June 2007 of a charge of dangerous driving and disqualified from driving for a period of twelve months beginning on that date, 15 June 2007.

[3]      On 2 November 2007, the police found the appellant driving a Honda motor vehicle in Christchurch.  He was stopped, and the vehicle was impounded.  Only six

S V POLICE HC CHCH CRI-2008-409-000057  19 June 2008

days later, on 8 November, the police saw the appellant driving again, this time a

Dodge commercial vehicle.

[4]      The appellant was subsequently convicted of two charges of driving while disqualified, and sentenced in respect of both the November charges on the same day.

[5]      Because of the lack of any recent offending of this nature, the District Court Judge was prepared to agree to deal with the matter by way of community work. The Judge stated at [2]:

… if they were more recent then we would be looking at more restrictive options. There will have to be significant disqualification and I take that into account as well and I think the Dodge ought to be forfeit.

[6]      The Judge sentenced the appellant to 100 hours community work on each charge, the hours to be concurrent.

[7]      On the charge relating to the 2 November driving, the Judge disqualified the appellant for 15 months commencing 15 June 2008.   On the charge relating to 8

November, he disqualified the appellant from driving for a further 15 months, commencing 15 June 2009 – ie a total of 30 months.

[8]      The grounds of the appeal are that the total disqualification period was manifestly excessive.   In Nicol v Police HC Auckland CRI-2005-404-000312, 3

October 2005, Heath J, this Court has held that although primarily it is preferable for District Court Judges to  impose  concurrent  periods  of  disqualification,  with  the second period being longer to reflect the aggravating features, this does not mean a cumulative approach is inappropriate in all cases.   Here, there was a lack of connection between the two offences, and accordingly I am in no doubt the District Court was entitled, in terms of ss 83 and 84 of the Sentencing Act, to impose cumulative periods of disqualification.

[9]      The key issue really is whether the Judge failed to consider, or consider properly, the totality principle.

[10]     Mr Bailey submits the total period was manifestly excessive, because:

i)it  was  the  appellant’s  first  convictions  for  driving  whilst disqualified in the aggravated form;

ii)there were no aggravating factors relating to the appellant’s driving;

iii)the  appellant’s  previous  convictions  were  20  and  15  years previous;

iv)      the appellant pleaded guilty to both charges.

[11]     There is some force in these submissions and they have given me cause to consider and reflect.  However, on the other hand as the Crown have pointed out I need to have regard to the fact that the minimum period of disqualification required to be imposed by the Court in each case was one of 12 months.  Accordingly, if the imposition of cumulative disqualification was justified, as I find it was, then the minimum period the Court could have imposed was actually two years.

[12]     In light of the minimum period of disqualification that was required to be imposed by the Court, I am driven to the conclusion that the sentence, while undoubtedly stern, cannot properly be characterised as manifestly excessive.   It is also most certainly not within the category of daunting periods of disqualification cited in the decision provided by counsel – Dixon v Police HC Christchurch CRI-

2006-409-000244, 19 March 2007, Panckhurst J. [13]           The appeal is accordingly dismissed.

Solicitors:

A Bailey, Christchurch

Crown Solicitor, Christchurch