Sekai v Police
[2014] NZHC 1348
•16 June 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-41 [2014] NZHC 1348
BETWEEN SIMON BARRY SEKAI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 June 2014 Appearances:
L Drummond for Appellant
D J Orchard for RespondentJudgment:
16 June 2014
JUDGMENT OF MANDER J
Introduction
[1] The appellant was sentenced by Judge Ongley on two unrelated pieces of offending involving reckless driving and intentional damage. He was sentenced to a total term of imprisonment of 10 months. He appeals that sentence on various grounds, primarily on the basis that the starting point adopted for the sentence in respect of the offence of reckless driving was too high, that the sentence for a related charge of disqualified driving should not have been imposed cumulatively and that he was not afforded the appropriate discount for the entry of his guilty pleas.
Circumstances of reckless driving
[2] On 3 October 2013, the appellant was observed driving at excessive speed. A Police patrol caught up with the appellant and stopped him after activating the patrol vehicle’s red and blue flashing lights. As the officer approached the appellant’s
vehicle the appellant sped away.
SEKAI v NEW ZEALAND POLICE [2014] NZHC 1348 [16 June 2014]
[3] The Police patrol pursued the appellant, however he did not stop. During the course of the pursuit he travelled at speeds in excess of 150 kph and drove through numerous intersections while the traffic lights were red. He made no attempt to slow at these intersections. The appellant made a number of U-turns into oncoming traffic in an attempt to evade the pursuing Police patrols. One of these turns was conducted on a motorway and caused the appellant to drive his vehicle against the flow of traffic at 100 kph. Other vehicles on the road were forced to take evasive action to avoid collision. As a result of the danger to the public the pursuit was abandoned when the appellant travelled the wrong way on the motorway. During the course of the pursuit the appellant swerved his vehicle towards one of the pursuing Police cars, requiring it to take evasive action to avoid collision.
[4] As a result of the appellant’s driving, he was charged with reckless driving
and failing to stop for lights and sirens. He received the maximum sentence of
3 months imprisonment and disqualified from driving for 2 years. The appellant who was subject to a disqualification order at the time also received a cumulative sentence of 2 months imprisonment for driving whilst disqualified.
Intentional damage
[5] On 11 October 2013, the appellant was involved in a domestic dispute with his partner. As a result of the argument the appellant’s partner left the address, leaving him alone at the residence. In the wake of the argument and a subsequent telephone call from his partner, the appellant became enraged and vandalised the house.
[6] The appellant smashed in excess of 20 holes in the walls of various rooms, broke a window in the dining room, pulled down a curtain rail, smashed a mirror and a stereo unit and speakers. In the course of this destructive behaviour he cut himself and left blood splattered on the ceiling, walls and kitchen bench. Damage to the property amounted to some $4,740. As a result the appellant was charged with intentional damage. He was sentenced to 5 months imprisonment and ordered to pay reparation.
The sentence
[7] The approach taken by Judge Ongley to the driving charges was to regard the reckless driving and disqualification charges as providing a maximum available sentence of 6 months imprisonment. His Honour noted that the appellant’s driving was extremely dangerous. It was aggravated by the fact that the appellant was disqualified at the time.
[8] The pre-sentence report disclosed what the learned Judge described as an enduring pattern of violence related behaviour by the appellant which had commenced from an early age. Of particular concern was the appellant’s willingness to put others at risk through his driving and his dismissive attitude to the possibility that he could have hurt others. The appellant has a poor record of complying with sentences and was assessed as having a low motivation to attend any counselling intervention. It was noted that the appellant’s attitudes and actions reflected an unwillingness to accept responsibility.
[9] In relation to the wilful damage charge, Judge Ongley noted the extent of the gratuitous damage to the rental property and that had the landlord himself not completed the repair work, the costs would have been in the region of $9,000.
[10] In imposing the maximum sentence for the reckless driving and a cumulative
2 month sentence for driving while disqualified, the learned Judge observed that the danger to the public was extreme and the consequences would have been far more serious had a collision occurred. In relation to the wilful damage sentence, the Judge noted that the payment of reparation will be gradual at best.
[11] In considering discount for the entry of pleas and the principle of totality, Judge Ongley considered that little credit could be given for the pleas in respect of the driving offending as the prosecution case was “open and shut”. Similarly, in respect of the wilful damage charge the prosecution case was compelling. While acknowledging the usual discount for a guilty plea of 25%, the sentencing Judge considered there were good reasons for applying a lesser figure in this case. The total period of imprisonment of 10 months was measured against the totality principle and not considered excessive.
Appellant’s submission
[12] The appeal is brought on the basis that the starting point adopted for the lead offence of reckless driving was too high. Ms Drummond on behalf of the appellant submitted that the imposition of the maximum penalty of 3 months imprisonment was not appropriate and that some benefit should have been afforded to the appellant to acknowledge his guilty pleas, albeit ones that were entered late. It was further submitted that the 2 year disqualification period was excessive.
[13] While acknowledging that being disqualified aggravated the reckless driving, it was submitted that this was the appellant’s first conviction for disqualified driving and that the Judge again did not provide any discount for the guilty plea. Ms Drummond submitted that s 84 of the Sentencing Act did not permit the Judge to impose a cumulative sentence for driving while disqualified.
[14] In relation to the intentional damage offending, Ms Drummond emphasised that the appellant had entered a guilty plea at the case review hearing, following significant changes to the summary of facts. While initially critical of the Judge taking as his starting point a term of imprisonment, Ms Drummond acknowledged in the course of oral submissions that in light of the imposition of a term of imprisonment in respect of the reckless driving charge the Court had little other alternative.
[15] Ms Drummond submitted that the discount provided to the appellant for his guilty plea and his acknowledgment of the need to pay reparation was not adequately reflected in the credit afforded to him of 1 month. It was submitted that the end sentence of 5 months imprisonment was manifestly excessive.
Respondent’s submission
[16] On behalf of the Crown, Ms Orchard emphasised the dangerousness of the appellant’s driving to the public and that the sentencing Judge was entitled to describe it as being of the worst type. Ms Orchard submitted that the sentencing Court was obliged to impose a sentence that reflected the maximum penalty for reckless driving. While acknowledging that the driving while disqualified should be
viewed as aggravating the reckless driving charge and deserving of recognition in a separate sentence, it was acknowledged that a cumulative sentence of 2 months for a first offence of that type might be considered excessive.
[17] In relation to the intentional damage charge, the Crown submission was that the sentence of 5 months imprisonment was well justified and within the range of sentence available to the Judge in the exercise of his discretion. It was appropriate to impose a cumulative sentence as the damage to property and driving charges were of a different nature and represented separate episodes of offending.
[18] Ms Orchard submitted that only limited credit could be extended to the appellant for his pleas of guilty in the circumstances, and that in light of the Supreme Court’s observations in Hessell v R,1 the extent of any credit to be afforded for the entry of his pleas was a matter of evaluation for the sentencing Judge. The Crown emphasised the negative pre-sentence report which confirmed his anti-social attitudes and lack of motivation to address his difficulties. The appellant’s criminal history disclosed a proclivity to resort to violence when angered.
Analysis
[19] I have little difficulty in concluding that the imposition by Judge Ongley of the maximum sentence of 3 months imprisonment for the reckless driving was appropriate. The speed and manner in which the appellant drove his motor vehicle demonstrated an absolute disregard for the safety of others. In driving at speed through red lights and the wrong way on the motorway at times in excess of 150 kph, it was only a matter of good fortune that an innocent person was not killed or seriously injured. That conduct alone was sufficient to require the imposition of the maximum penalty prescribed.
[20] Section 8(c) of the Sentencing Act 2002 provides that in sentencing an offender the Court:
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty
1 Hessell v R [2010] NZSC 135.
is prescribed, unless circumstances relating to the offender make that inappropriate;
[21] The sentencing Court’s response to such grossly reckless driving, by imposing a maximum 3 month term of imprisonment, is unsurprising.
[22] Further aggravating features of the appellant’s conduct were that the appellant was seeking to avoid apprehension by the Police and was a disqualified driver. The imposition of a 2 year period of disqualification was a proportionate response to an offender who has so clearly demonstrated that he cannot responsibly drive a motor vehicle safely. Until he has addressed the underlying issues that lie behind his offending the danger he presents to other road users will remain.
[23] In respect of the disqualified driving offence, Judge Ongley imposed a
2 month cumulative sentence of imprisonment. In reliance upon the submission that the sentencing Court should not have imposed a cumulative sentence, Ms Drummond referred to s 84 which provides:
84Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.
[24] Ms Drummond may be correct in her submission that the charges of reckless driving and driving while disqualified are connected offences which arise from the same incident and are of a similar driving related nature. Those features however do not remove the jurisdiction of the sentencing Court to impose cumulative sentences.
[25] Section 83(1) expressly provides:
83 Cumulative and concurrent sentences of imprisonment
(1) A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given.
[26] Section 84 only provides guidance to a sentencing Court. It is not mandatory for a sentencing Judge to have to apply cumulative or concurrent sentences in particular situations as described in the section. Indeed, in using the term “generally appropriate” it is clear that Parliament anticipated there will be situations where the usual approach can justifiably be departed from.
[27] In any case, it is now well established that disqualified driving is to be viewed as an offence of a different kind from other driving offences. Whereas reckless driving or driving with excess breath alcohol are concerned with road safety, the offence of driving while disqualified is primarily concerned with the enforcement
of Court orders. The Court of Appeal in Hughes v R2 confirmed that in such
situations cumulative sentences of imprisonment are generally appropriate in terms of s 84(1), whether or not they relate to a connected series of offences.3
[28] While the imposition of a 2 month prison sentence for a first offence of disqualified driving may appear harsh, when the sentence is placed in the context of the circumstances in which the offence was committed, the sentence takes on a different complexion. Clearly, Judge Ongley was of the view that the aggravating features of the appellant’s driving in itself warranted the imposition of the 3 month term of imprisonment. That was calculated without regard to the not insignificant further aggravating factor that the appellant undertook such dangerous driving while disqualified. In order to adequately reflect that aggravating factor, the Judge was entitled to impose a cumulative sentence for the disqualified driving. It was inevitable that the penalty to be imposed would have to be a further term of
imprisonment of at least 1 month.
2 Hughes v R [2012] NZCA 388.
3 See also Police v Tawhara HC Whangarei CRI-2010-488-44, 8 September 2010; R v McQuillan
CA 129/04, 12 August 2004.
[29] To be added to the act of driving whilst disqualified is the aggravating feature which attaches to that offence, namely the appellant’s attempt to avoid being apprehended as a disqualified driver. It is arguable that the appellant’s attempt to avoid apprehension overlaps with and potentially leads to double counting when the sentence for reckless driving is taken into account. What however is required is an assessment of the overall criminal culpability of the appellant’s conduct and the seriousness of his actions.
[30] In the absence of there being any bar to the imposition of cumulative sentences, the question distils as to whether the total sentence of 5 months imprisonment offends against the totality principle. The effective total sentence is ultimately what has to be measured against this overarching principle. The cumulative sentences imposed must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.4 In Hughes v R the
Court of Appeal observed:5
[27] …it is important to keep in mind the key principles of sentencing this Court discussed in R v Xie in relation to multiple offending. This Court endorsed the continuing application of the following key principles of sentencing stated earlier in R v Williams and in R v Barker:
(a) With multiple offences the sentence must reflect the totality of the offending.
(b) In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.
(c) The total sentence must represent the overall criminality of the offending and the offender.
[28] In Xie, this Court went on to say that these principles survived the enactment of the Sentencing Act and that ss 84 and 85:
“ … do not have the effect of trumping the central principle of sentencing for multiple offending, namely that the total sentence must represent the overall criminality of the offending and the offender. ”
[31] I do not consider that the sentence of 5 months imprisonment is wholly out of
proportion to the gravity of the appellant’s conduct. There was no legal impediment to the approach taken by Judge Ongley to the sentencing exercise and the sentencing
4 Sentencing Act, s 85(2).
5 Above n 2, at [27] and [28].
Judge’s chosen course was justified having regard to the culpability of the appellant for what can only be considered serious criminal offending. The appellant’s wilful and potentially lethal driving is of a type that is of considerable concern to the community.
[32] The extent of the discount to be allowed for a guilty plea is a matter of discretion for the sentencing Judge and his assessment of the circumstances in which it was entered, the strength of the prosecution case, its timing and its utilitarian worth to the system as a whole. The pleas in respect of the driving charges were entered on the day the Judge alone trial was due to commence. There was no discernible defence available to the appellant. In the circumstances it was open to Judge Ongley to conclude, as he did, that no credit should be allowed. Any adjustment in respect of the minimal credit that might have been extended to the appellant would have made little, if any, difference to the sentence that was imposed.
[33] In respect of the intentional damage offence, the sentencing Judge took a starting point of 6 months imprisonment. From that starting point, Judge Ongley reduced the sentence by 1 month, leaving a final sentence of 5 months to be added to the sentence for the driving offending. The appellant submits the starting point should have been lower and that greater credit should have been afforded for his guilty plea. While perhaps at the upper end of the range available, the appellant’s actions necessarily attracted a short prison term. The amount of damage caused was significant and the likelihood of the victim being recompensed is minimal. In the absence of any authority suggesting the starting point was beyond that available to the Court, there is no basis to interfere on appeal.
[34] In respect of the credit for the appellant’s guilty plea, the deduction of 1 month represents a 16.5% discount. The difficulty for the appellant is that even if a full 25% discount was applied that would only result in a further 2 week or half a month deduction. This is not a realistic basis upon which to disturb the sentence imposed at first instance. The Judge’s assessment of the realistic prospects of the appellant being able to make any meaningful reparation was accurate.
[35] I have already emphasised the ultimate test on appeal is whether the total 10 month sentence of imprisonment, made up as it was of a series of short sentences of imprisonment, offends against the totality principle. Standing back, as the sentencing Judge himself did, I reach the same conclusion that the total cumulative sentence is not excessive. Having concluded that Judge Ongley made no error either in respect of the component parts of the total sentence imposed or in terms of its overall effect, the appeal is dismissed.
Solicitors:
Linda Drummond, Christchurch
Raymond Donnelly & Co, Christchurch
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