Shirley v Police
[2022] NZHC 986
•10 May 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-45
[2022] NZHC 986
BETWEEN NATHAN WILLIAM SHIRLEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 May 2022 Appearances:
C G Nolan for Appellant
J H Whitcombe for Respondent
Judgment:
10 May 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 10 May 2022 at 2.30 pm Registrar/Deputy Registrar
Date:
SHIRLEY v NEW ZEALAND POLICE [2022] NZHC 986 [10 May 2022]
Introduction
[1] Nathan Shirley was sentenced, in the District Court, to three months’ community detention and six months of supervision. He was disqualified from holding or obtaining a driver’s licence for a period of one year, one month.1 Mr Shirley was also to attend an assessment for a Corrections Department programme and complete any programme recommended by a probation officer. The sentence was on a charge of driving while disqualified (third or subsequent). 2
[2]Mr Shirley appeals his sentence.
Facts
[3] Mr Shirley had been disqualified from driving for three months on 20 September 2021. On 8 October 2021, police found him driving on Fitzgerald Avenue, Christchurch. He faced the aggravated charge because of convictions in 2005 and 2008 for driving while disqualified.
Principles on appeal
[4] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.4 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
1 New Zealand Police v Shirley [2022] NZDC 4526.
2 Land Transport Act 1998, ss 32(1)(c) and 32(4); maximum penalty 3 months’ imprisonment or a
$6,000 fine.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Ripia v R [2011] NZCA 101 at [15].
District Court decision
[5] The sentencing Judge’s comments were understandably brief. In adopting the sentence detailed above at [1], the Judge clearly treated Mr Shirley’s previous driving convictions as historic. His Honour considered straight supervision would be inappropriate, leading to the additional imposition of community detention at an address which appeared acceptable to the Corrections Department. The Judge did not state a reason for imposing, as the period of disqualification, 13 months rather than 12 months.
Submissions
Appellant’s submissions
[6] Mr Nolan, appearing for Mr Shirley, acknowledged the lack of a tariff case for sentencing on cases of driving while disqualified (third or subsequent). He contended the Courts had nevertheless found the number of previous convictions to be relevant in assessing the starting point.
[7] Mr Nolan cited several cases where sentences of imprisonment have been imposed. He concluded a starting point of five months’ imprisonment would be appropriate, leading ultimately to a period of community detention or supervision. Mr Nolan submitted a sentence of supervision or community detention, but not both, would have been appropriate.
[8] On the disqualification, Mr Nolan submitted the minimum period (12 months) should have been imposed. He observed the disqualification period of one year and one month meant Mr Shirley would have to re-sit his driver’s licence test, having referred to the courts’ recognition that disqualification orders should be as short as possible having regard to the underlying goal of road safety.5
5 Duncan v Police HC Christchurch CRI-2003-409-000034, 17 July 2003 at [10].
Respondent’s submissions
[9] Mr Whitcombe submitted the sentence was not manifestly excessive. Citing cases where greater sentences, including imprisonment, were imposed, he submitted community detention of three months was well within range.6 He referred also to the rehabilitative considerations highlighted by the pre-sentence report, the rehabilitative implications of supervision, and the inability to impose supervision for a term less than six months as reinforcing that community detention was appropriate.
[10] Mr Whitcombe noted that disqualification may not be ordered for less than 12 months.7 As such, he submitted that any reduction from the sentence of one year and one month would be tinkering.
Analysis
[11] When sentencing recidivist offenders, particularly where offending pertains to a breach of Court imposed orders, a Court may impose a stern sentence where a deliberate and flagrant breach is at hand. Repeated failure to abide by disqualification orders undermines a central means of achieving compliance with land transport laws.8
[12] While recognising this purpose, any sentence must also reflect principles of the Sentencing Act 2002. That includes taking into consideration the goals of accountability and whether deterrence can be achieved by way of a less restrictive sentence.9
[13] There is no tariff case. Rather there have been a wide range of sentences for analogous offending.10 The Judge’s sentence of three months’ community detention and six months of supervision can be seen as being within range. The sentence of community detention speaks to principles of accountability and deterrence. The
6 Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009 saw a sentence of 10 months’ imprisonment for the appellant’s sixth conviction for driving while disqualified; and McGill v Police [2021] NZHC 2020 involved a sentence of five months’ community detention in response to a third conviction of driving while disqualified.
7 Land Transport Act 1998, s 32(4)(b).
8 For example: Lord v Police [2015] NZHC 1756 at [11].
9 Sentencing Act 2002, s 8.
10 Lord v Police, above n 8; Burgess v Police [2021] NZHC 362; Muhinda v Police [2015] NZHC 2024; McGill v Police [2021] NZHC 2020;
period of supervision, and accompanying programme, is not onerous (indeed it is the minimum period available) and may prove to be the step that leads Mr Shirley to address the intermittent offending which has marred an otherwise encouraging decline in his offending.
[14] As noted by the Court of Appeal in Hitchens v R, the competing considerations in addressing a period of disqualification are:11
(a)long periods of disqualification typically leave little hope for offenders; and
(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.
[15] As Mr Nolan raised, however, disqualification orders are to be kept as short as possible to achieve the goal of road safety.12
[16] Given the imposed period of disqualification, Mr Shirley would need to re-sit all the relevant tests required to obtaining a driver’s licence. The process of regaining full entitlement to drive is likely to take a significant period, even if all goes well in that process.
[17] Mr Shirley does not have an unblemished record. However, his last offence of driving while disqualified (before this) occurred in March 2008. A disqualification of one year on this occasion would have sufficed to achieve the aims of road safety and to bring home to Mr Shirley the consequences of his offending. The longer disqualification, with its implications, would have a significant and disproportionate impact. Making an adjustment to the length of disqualification does not, in those circumstances, amount to tinkering.
11 Hitchens v R CA380/03, 25 March 2004 at [10].
12 Duncan v Police, above n 5. See also Leaupepe v Police [2015] NZHC 1766 at [10].
Outcome
[18] The appeal will be allowed in relation to the period of disqualification but otherwise dismissed.
Order
[19]I order:
(a)the appeal is allowed in relation to the sentence of disqualification from holding or obtaining a driver’s licence for a period of one year and one month (the period of disqualification);
(b)the period of disqualification is quashed and substituted by a period of 12 months; and
(c)the appeal is otherwise dismissed.
Osborne J
Solicitors:
Crown Solicitor, Christchurch Barrister:
C G Nolan, Barrister, Christchurch
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