Sykes v Police - [2014] NZHC 2642

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-91 [2014] NZHC 2642

BETWEEN
GREGORY PAUL SYKES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 October 2014

Appearances:

A James for Appellant
AMS Williams for Respondent

Judgment:

28 October 2014

JUDGMENT OF MANDER J

[1] Mr Sykes was apprehended driving a motor vehicle whilst disqualified. The entry of a conviction for this latest episode represents Mr Sykes 40th conviction for driving while disqualified between 1976 and 2005.

[2] In sentencing Mr Sykes, Judge Couch took a starting point of 21 months imprisonment. An uplift of three months was added for Mr Sykes previous offending which included 14 convictions for alcohol-related driving, and the fact that he was subject to release conditions at the time of the offending. Credit was extended for Mr Sykes prompt guilty plea, resulting in a sentence of 18 months imprisonment.

[3] Mr Sykes appeals the length of sentence on the basis it was manifestly excessive. In support of that ground, it was submitted that the starting point of
21 months was too high and that the sentencing Judge had failed to take into account personal mitigating circumstances which should have otherwise reduced the sentence. A contention that Judge Couch had not properly considered the discretion
available to him under s 94 of the Land Transport Act 1998 was abandoned.

SYKES v NEW ZEALAND POLICE [2014] NZHC 2642 [28 October 2014]

Starting point

[4] On behalf of Mr Sykes it was submitted that a starting point of no more than one year was appropriate. It was emphasised that, apart from the act of driving while disqualified, no other aggravating factors applied. Mr Sykes was cooperative when apprehended and there were no aspects of his driving which caused concern.

[5] While the very large number of previous convictions for driving while disqualified was acknowledged, it was submitted that it had been over eight years since Mr Sykes had offended in this way. Reference was made to Peterson v Police,1 where Duffy J allowed an appeal against a sentence of 18 months imprisonment for driving while disqualified and imposed a term of 1 year and 1 month with special release conditions. In that case, the appellant had been stopped
as part of a police random breath testing operation and, apart from the act of driving while disqualified, no other aggravating features were present. In that case a starting point of 10 months imprisonment was uplifted by a further seven months to reflect some 76 previous convictions in the last nine years, including five for driving while disqualified.

[6] Mr Sykes also relied on Tua v Police,2 where Woodhouse J allowed an appeal against a sentence of 14 months imprisonment for the appellant’s eighteenth offence of driving while disqualified, substituting a sentence of community work. The Judge on appeal was critical of a failure to address other aspects of the offending beyond the bare number of previous convictions and a failure to consider the offender’s personal circumstances. A…

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: [2014] NZHC 2642
Decision Date: 28 October 2014

CaseChat Overview and Summary

In Sykes v Police, the appellant, Gregory Paul Sykes, appealed against the length of his sentence for driving while disqualified, arguing that it was manifestly excessive. The case involved the sentencing of Mr Sykes, who had a history of 39 prior convictions for driving while disqualified. The sentencing judge, Judge Couch, took a starting point of 21 months imprisonment and added three months for Mr Sykes' other previous offending, resulting in an 18-month sentence. Mr Sykes argued that the starting point of 21 months was too high and that the sentencing judge had failed to consider personal mitigating circumstances that should have reduced the sentence. The court examined the approach to setting a starting point in cases of aggravated driving while disqualified, ultimately preferring the approach that reflects the offender's total previous driving while disqualified record in the starting sentence for a current charge. The court found that the sentencing judge did not err in imposing the 18-month sentence of imprisonment and dismissed the appeal.

The High Court of New Zealand, Christchurch Registry, considered the appeal by Mr Sykes against the length of his sentence for driving while disqualified. Mr Sykes, who had a history of 39 prior convictions for driving while disqualified, was sentenced to 18 months imprisonment by Judge Couch. The court examined the approach to setting a starting point in cases of aggravated driving while disqualified, with the court preferring the approach that reflects the offender's total previous driving while disqualified record in the starting sentence for a current charge. The court found that the sentencing judge did not err in imposing the 18-month sentence of imprisonment and dismissed the appeal. The court also considered Mr Sykes' personal circumstances and mitigating factors but concluded that they did not warrant a more lenient sentence. The appeal was ultimately dismissed, and the original sentence was upheld.

Orders