Shirley v Police - [2022] NZHC 986

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…

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.

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Details

Case: [2022] NZHC 986
Decision Date: 10 May 2022

CaseChat Overview and Summary

Nathan William Shirley appealed his sentence for driving while disqualified, third or subsequent offence, against the New Zealand Police. The District Court sentenced him to three months’ community detention, six months of supervision, and disqualified him from holding or obtaining a driver’s licence for a period of one year, one month. The appeal focused on whether the sentence imposed was correct, and if a different sentence should be imposed.

The Court assessed the sentence against the relevant principles and statutes, including the Criminal Procedure Act 2011 and the Sentencing Act 2002. The Court noted that the number of previous convictions was relevant in assessing the starting point for sentencing, and that the Courts had found a range of sentences for analogous offending. The Court also considered the rehabilitative implications of supervision and the inability to impose supervision for a term less than six months.

The Court found that the sentence of three months’ community detention and six months of supervision was within range and appropriate, taking into account principles of accountability and deterrence. However, the Court found that the period of disqualification was disproportionate, and that reducing it to 12 months would not amount to tinkering.

The appeal was allowed in relation to the period of disqualification but otherwise dismissed. The period of disqualification was quashed and substituted by a period of 12 months. The appeal was otherwise dismissed.

Orders