Solicitor-General v Beckham

[2015] NZHC 2816

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-29 [2015] NZHC 2816

BETWEEN

EDEN HOEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 November 2015
Counsel:	T K Donald for the Appellant C Anderson for the Respondent
Judgment:	12 November 2015

JUDGMENT OF DUFFY J

Solicitors:

Crown Solicitor, Whangarei

HOEY v NEW ZEALAND POLICE [2015] NZHC 2816 [12 November 2015]

[1]      Mr Hoey pleaded guilty to one charge of assault, two charges of driving while suspended (3rd or subsequent), one of unlawfully getting into a motor vehicle, one of possession of a weapon and two charges of breaching community work.  He was sentenced by Judge Harvey in the District Court on 7 September 2015 to 17 months imprisonment.1     He was convicted and discharged on the two charges of breaching community work and was disqualified from driving for 12 months.

Factual background

[2]      At about 9.00 pm on Saturday 29 November 2014, Mr Hoey and his then partner were at the address of one of his family members.  The pair began arguing and Mr Hoey kicked her left thigh and then punched her two times in the back of her head.  Other family members at the address separated the two and called the police. The victim did not suffer any injuries.

[3]      On 22 January 2015, Mr Hoey was suspended for driving for a period of three months to 21 April 2015 inclusive, for accumulating in excess of 100 demerit points.

[4]      On 17 April 2015, Mr Hoey drove while suspended. The vehicle was stopped for random breath testing.  In explanation to the police, he stated that he thought he was no longer suspended. On the morning of 21 April 2015, Mr Hoey again drove while suspended.  He knew that he was able to get his licence back the following day.

[5]      On 26 June 2015, the police stopped a vehicle that had been stolen. Mr Hoey was located in that vehicle. He then tried to evade the police.

[6]      On 24 July 2015, Mr Hoey was the passenger in a vehicle that was stopped

by police. The police located a machete down the side of the driver’s seat. Mr Hoey

admitted to being the owner of the machete.

1      Police v Hoey [2015] NZDC 17737.

District Court decision

[7]      Judge Harvey canvassed the background facts of the offending.  He recorded that Mr Hoey has a long list of previous convictions, including driving and violence related convictions and that he has not been particularly compliant with community- based sentences.  The Judge noted that the pre-sentence report considered Mr Hoey to have a high risk of re-offending and a high risk of harm to others.  The Judge had regard to a letter written by Mr Hoey and accepted that he wants to change.

[8]      A starting point of six months imprisonment was adopted for the assault charge, reduced to five months imprisonment to take into account the late guilty plea.

[9]      For  the  two  driving  while  suspended  charges,  the  Judge  considered  the offending to have been quite deliberate, particularly on the second occasion and adopted a starting point of 12 months imprisonment.   That was reduced to nine months after a guilty plea discount.  Mr Hoey was disqualified from driving for 12 months.

[10]     In  relation to the other two charges,  the Judge imposed a term  of three months imprisonment.  All three terms are cumulative, resulting in an end sentence of 17 months imprisonment.   Six months special release conditions were also imposed.

Appellant’s submissions

[11]     Mr Hoey accepts that cumulative sentences were appropriate but submits that the end sentence was manifestly excessive and out of proportion to the gravity of the overall offending.   In light of the totality principle, counsel suggests a term of imprisonment of between 12 to 14 months.

Respondent’s submissions

[12]     The respondent submits that the end sentence, being a mixture of concurrent and cumulative sentences, was not manifestly excessive.  The respondent points out that the assault charge received a generous discount of 17 per cent and that the court

would have been entitled to impose cumulative sentences on the two driving while suspended  charges.    The  sentence  imposed  for  unlawfully  getting  into  a  motor vehicle  and  possession  of  an  offensive  weapon  could  have  justified  a  greater sentence given Mr Hoey’s criminal history.  Finally, the respondent submits that an uplift for previous convictions could have been imposed which would have off-set the discount for guilty plea.

Approach on appeal

[13]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed. In any other case, the Court must dismiss the appeal.2

[14]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.3     Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.4

[15]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the

process by which the sentence is reached.5

2      Criminal Procedure Act 2011, s 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

4      At [33] and [35].

5      Ripia v R [2011] NZCA 101 at [15].

Analysis

[16]     Mr Hoey does not seem to challenge the individual starting points adopted for the groups of offending.  Regarding the assault, no injuries were sustained.  With a maximum penalty of one year, the six month starting point was appropriate and within  range.    Four  months  imprisonment  was  also  appropriate  as  a  combined starting point  for unlawfully getting into  a motor  vehicle  and  possession  of  an offensive weapon.

[17]     Regarding the driving while suspended charges, 12 month starting point was adopted as a combined starting point.  That in my view was justified, especially as Mr  Hoey  drove  again  mere  days  after  being  caught  by  the  police  on  the  first occasion.  Both occasions showed a blatant disregard for orders.

[18]     The only question on appeal is whether the end sentence of 17 months was manifestly excessive.

[19]     Mr Hoey has referred to Toa v Police and Manuel v Police as useful cases in support of his submissions. In Toa, the end sentenced of 11 months imprisonment was upheld on appeal for breaching home detention (x2), possession of a pipe and five charges of driving while disqualified. Mr Toa was earlier sentenced to home detention for the four driving while disqualified charges. This was substituted to two months imprisonment. Brewer J upheld the 12 month starting point adopted for the fifth driving while disqualified charge as that offence was committed while in breach

of home detention conditions.6    I note that in Toa Brewer J opined that an end

sentence of 11 months imprisonment was at “the lowest end of the scale available to the District Court Judge”.7   Thus, Toa is not as helpful to Mr Hoey as he would have it.

[20]     In  Manuel,  a  sentence  of  nine  months  and  22  days  imprisonment  was substituted on appeal for charges of theft, driving while suspended (x3), breach of

6      Toa v Police [2013] NZHC 2683.

7 At [15].

police bail, breach of court bail and breach of community work.  That case focussed on an excessive uplift for previous convictions, therefore it is of limited use here.8

[21]     In my view, the end sentence whilst stern was not out of proportion to the gravity of the overall offending.  The driving while suspended involved deliberate offending which warranted a stern response.  The assault fortunately did not result in injury to the victim, but this may have been due to the involvement of others rather than some action on Mr Hoey’s part.  The offending underlying the remaining two charges was relatively benign.  There was no suggestion that the offensive weapon was going to be used.   However, Mr Hoey has a significant criminal history that includes assaults on vulnerable people (assault on a female, assault on a child).  He

also has a considerable history of breaching court imposed orders.9   Judge Harvey’s

assessment of Mr Hoey’s criminality is sound.

[22]     Accordingly,  in  principle  there  is  no  basis  for  interfering  with  the  end sentence as constructed by Judge Harvey.   Any alteration that I may have made would have been no more than tinkering which counsel for Mr Hoey accepts is not a proper response from an appellate Court.  I have given careful consideration to the totality principle, but I do not see that it would alter the end sentence that Judge Harvey reached.

[23]     On the other hand I note that the warrant of commitment of Mr Hoey records the sentences of imprisonment as totalling 18 months imprisonment, which is wrong. The correct total sentence as constructed by Judge Harvey is one of 17 months imprisonment.   I understand, however, that the Corrections Department views the sentence as being one of 18 months imprisonment.   However, such a sentence is unsustainable as there is no reasoned basis to support it.  The arithmetical error on the warrant of commitment can be cured by me allowing the appeal against sentence, setting aside the sentence imposed in the District Court and substituting in its place a

sentence of 17 months imprisonment.

8      Manuel v Police [2015] NZHC 133.

9      The criminal history warranted recognition by an uplift, which if applied would extinguish the benefit to Mr Hoey of any reduction, as sought by him, to the sentences for the second and third group of offences.

Result

[24]     The appeal  is  allowed.   The sentence of imprisonment  of 18  months as recorded on the warrant of commitment is set aside.   In its place, Mr Hoey is sentenced to 17 months imprisonment.