Tew v Police
[2016] NZHC 2325
•30 September 2016
IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
CRI-2016-463-000036
[2016] NZHC 2325
IN THE MATTER OF an appeal against sentence BETWEEN
GREGORY JOHN TEW
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 September 2016 Counsel:
A M M Schulze for the Appellant M S Jenkins for the Respondent
Judgment:
30 September 2016
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 30 September 2016 at 11.00 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Lance Lawson, Rotorua
Gordon Pilditch, Rotorua
TEW v POLICE [2016] NZHC 2325 [30 September 2016]
Introduction
[1] Mr Tew pleaded guilty to charges of dangerous driving1 and failing to stop.2 He was sentenced to 150 hours’ community work, and disqualified from holding a driver licence for nine months, on the charge of dangerous driving. He received a further sentence of three months’ disqualification for the failing to stop charge, cumulative on the period imposed on the dangerous driving charge. This resulted in a total disqualification period of 12 months.3
[2]Mr Tew appeals the sentence on the grounds that it was manifestly excessive.
Facts
[3] At about 11.45 am on Sunday, 10 April 2016, Mr Tew was driving a farm vehicle on South Road, Mamaku. It was raining at the time. Police attempted to stop the vehicle as no registration plates were displayed. They activated red and blue flashing lights and a siren.
[4] Mr Tew accelerated away from police, driving through the Mamaku township. He reached speeds of 80 kilometres per hour in a 50 kilometre speed zone.
[5] He then entered a 100 kilometre speed zone and sped up to 134 kilometres per hour. He drove on to an unsealed road and began to cross the centre line, driving across both lanes of the road. At this time, Mr Tew travelled at approximately 100 kilometres per hour, cutting corners, and leaving no room for any oncoming vehicles.
[6] After pursuing Mr Tew for approximately six kilometres, police abandoned the pursuit. Tyre markings on the road showed that he had driven off the road multiple
1 Land Transport Act 1998, s 35(1)(b). The maximum penalty is three months’ imprisonment or a
$4,500 fine and a six month mandatory period of disqualification from holding or obtaining a driver licence.
2 Land Transport Act 1998, s 52(1)(c), 52(3) and 52(5). The maximum penalty is a $10,000 fine. Where the offender operated a vehicle in a dangerous manner whilst failing to stop, they must also be disqualified from holding or obtaining a driver licence for three months.
3 Police v Tew [2016] NZDC 15714.
times. Police located Mr Tew a short time later hiding in a bush area. He stated that he was not thinking and was scared of losing his licence.
[7] Mr Tew has no previous convictions. He was 18 years old at the time of the offending and is currently in full-time employment. The period of licence disqualification has had a major impact on his employment and his counsel placed emphasis on that feature of the appeal. Mr Tew appears to have good family support, and pleaded guilty at the earliest opportunity.
District Court sentence
[8] The Judge recounted the circumstances of the offending noting the speeds at which Mr Tew was driving, the cutting of corners without leaving oncoming vehicles any room, and the six kilometre police pursuit. The Judge also noted that the police abandoned the pursuit because Mr Tew’s driving was so dangerous.
[9] The Judge considered that the offending was too serious for a monetary penalty. He observed that it was simply good luck that Mr Tew had not killed anyone. After considering the applicable mandatory periods of disqualification, the Judge imposed the sentence the subject of this appeal.
Approach to appeal
[10] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[11] In any other case, the Court must dismiss the appeal.4 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.5
Grounds for appeal
[12]Mr Tew appeals on three broad grounds.
[13] First, he submits that the sentencing process miscarried because the Judge did not identify a starting point, and did not make adjustments for aggravating and mitigating features, or the guilty plea. On that basis, he submits that this Court can commence the sentencing process afresh. He submits that an end sentence of between 75 to 90 hours’ community work and a nine month total period of disqualification would be an appropriate sentence.
[14] Second, whether or not there was an error in approach, Mr Tew says the sentence is manifestly excessive having regard to comparable cases, Mr Tew’s personal circumstances, and his early guilty plea.
[15] Third, Mr Tew submits that the Judge did not have regard to the totality principle in determining a total disqualification period of 12 months.
Analysis
[16] As the Crown accepts, the sentencing methodology by which the end sentence was reached is not apparent from the Judge’s sentencing notes. That is neither surprising nor unusual for sentencing of this nature.
[17] Both counsel agreed that I should consider whether the end sentence was manifestly excessive by comparing it to other sentences imposed for comparable offending and in light of the offender’s personal circumstances. That is in accordance with the approach to be taken on appeal which is not concerned with errors in the
4 Criminal Procedure Act 2011, s 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
methodology by which a sentence was determined, but whether there is a material error in the end sentence imposed.6
[18] I was referred to a number of cases which were not before the District Court Judge. I am therefore at some advantage in having both the time to consider those decisions, and counsel’s submissions regarding the sentences imposed.
[19] In Bowman v Police, a sentence of 100 hours’ community work, $70 reparation and disqualification from holding or obtaining a driver licence for six months was imposed on charges of wilful damage and dangerous driving.7 This followed a conviction following trial.
[20] The appellant had pulled sheets that were drying on a first floor balcony and cut them with a knife. When the victim went to call the police, the appellant got into her car, revved the engine repeatedly and accelerated towards the victim who was standing on the other side of the road before coming to a stop approximately one metre away. The engine was then revved again and the appellant drove away. The appellant did not express any remorse and had an extensive list of previous convictions stretching over a 30 year period. The appeal was dismissed.
[21] I consider the gravity of Mr Tew’s offending to be less serious than that involved in Bowman v Police. Although Mr Tew’s offending occurred over a longer period of time, involved a police chase, and speeding; Ms Bowman was deliberately aiming her vehicle at a person, which posed an immediate and direct risk. Her sentence also included the wilful damage charge. In terms of personal circumstances, Ms Bowman had a history of prior convictions, no apparent remorse, and no youth discount was available. She was convicted following a trial and so no guilty plea discount was available either.
[22] In Lankshear v Police, the appellant was sentenced to 110 hours of community work, $7,264 reparation, and 12 months’ disqualification for a charge of dangerous driving causing injury.8
6 Ripia v R [2011] NZCA 101 at [15].
7 Bowman v Police [2016] NZHC 1300.
8 Lankshear v Police [2012] NZHC 3300.
[23] The appellant in that case was driving in the evening at 120 kilometres per hour in a residential area with a 50 kilometres per hour speed zone. The appellant attempted to overtake a vehicle in front of him, but a vehicle was travelling towards him in the opposite direction. The appellant hit the victim’s vehicle as he moved back behind it, causing it to stall and shunting it forward approximately 110 metres from the point of impact. The appellant lost control of his vehicle crashing into two trees, a fence, a letterbox and eventually coming to rest against a third tree in the front yard of a residential property.
[24] The victim’s vehicle suffered major damage and the victim sustained wounds which required him to go to hospital, and take time off work. An appeal against the Judge’s refusal to grant a discharge without conviction was unsuccessful. The length of the sentence was not discussed on appeal.
[25] The gravity of the offending in Lankshear v Police was more serious than in Mr Tew’s case in my view. The injuries and damage to property in that case differentiate it from Mr Tew’s offending. The 110 hours’ community work imposed appears to reflect several mitigating factors, including the appellant’s mental health issues and voluntary completion of 94 hours’ community work.
[26] In Simon v Police, an appeal against a sentence of 225 hours’ community work, nine months’ supervision and $1,288.19 in reparation, and disqualification from driving for 10 months was dismissed.9 That case involved two charges of careless driving, one of refusing a request for a blood specimen and two of failing to stop to ascertain injury.
[27] The appellant had been consuming methylated spirits while sitting in his vehicle. He did not comply with the green and red traffic signals at an intersection. He reversed backwards, colliding into the vehicle behind him. When he eventually drove forward, he went through a red light and, a short time later, crashed into a bus in front of him. He then pulled on to the other side of the road, pausing briefly before returning to the correct side of the road. When police located him, he initially agreed to provide a blood specimen, but later changed his mind. Mr Simon was a first time
9 Simon v Police [2012] NZHC 2610.
offender and the loss of employment and a breakdown of his relationship had contributed to his offending.
[28] On appeal, Lang J noted that the appellant was clearly intoxicated, had placed other road users at risk, was involved in two collisions and failed to stop to ascertain if anyone had been injured before refusing the request for a blood specimen. He considered the appellant to be very lucky that nobody had been killed. The Judge considered that a sentence of just over half the maximum 400 hours of community work for that offending could not be considered manifestly excessive, although it was at the very upper end of the range.
[29] I also consider the case of Simon v Police to involve more serious offending than Mr Tew’s case. The appellant crashed into two vehicles, drove through a red light, and was intoxicated. Those are all aggravating features which are not present in Mr Tew’s case. I note that Mr Simon was also a first time offender.
[30] Finally, in Matiu v Police, the appellant was sentenced to 100 hours’ community work and two years’ disqualification from driving for a charge of dangerous driving. An appeal from the length of disqualification was allowed and a 12 month disqualification period was imposed.10
[31] The appellant in that case had accelerated heavily when a red light turned green, causing the rear wheels of the car to lose traction as he turned left. He continued to drive, following closely behind another vehicle. At an intersection he suddenly swerved into the left lane. His speed was 117 kilometres per hour in a 50 kilometre speed zone. He stopped at a red light and police instructed him to pull over. He gave police “the finger” and accelerated heavily, turning left in excess of 100 kilometres per hour. Police activated their lights and siren. The appellant was eventually stopped and arrested. The appellant had a conviction for careless driving in 2009, and historic convictions for driving whilst disqualified, dangerous driving, and failing to stop.
[32] I consider the gravity of the offending in Matiu to be marginally more serious than in Mr Tew’s case. Mr Matiu overtook six vehicles in the course of the police
10 Matiu v Police [2012] NZHC 1821.
pursuit and accordingly put other users of the road directly at risk. The speeds Mr Matiu reached exceeded the speed limit by a greater margin than those at issue in Mr Tew’s case. Mr Matiu had a number of prior convictions, and no discount for youth appears to have been available. Discounts for a guilty plea and employment prospects were available however.
[33] Considering the end sentences imposed in these cases, I consider Mr Tew’s sentence to be outside the range imposed for offending of his type and in light of his personal circumstances.
[34] The high speeds, police pursuit, and the crossing of the centre line of the road were all aggravating features of his offending. I agree with the Judge that it was just pure luck that serious injury was not sustained. Nevertheless, no injury was sustained, and no damage to property was caused. The fact that the offending does not appear to have involved others means there was not the same risk to members of the public as is evident in the other cases cited to me. In general, Mr Tew’s offending was less serious than in the cases reviewed, justifying a lower sentence than those imposed in those cases.
[35] Furthermore, Mr Tew’s personal circumstances, in particular his youth, strong family support, employment prospects, and the fact that he is a first time offender, is a further point of distinction to the other cases reviewed. That provides an additional basis upon which a lower sentence than those imposed in cases of comparable offending should be imposed.
[36] I consider an end sentence of 90 hours’ community work and a total period of disqualification of nine months is consistent with the other cases reviewed. It is also consistent with the principles and purposes of sentencing set out in ss 7 and 8 of the Sentencing Act 2002, and in particular the purposes of responsibility, denouncement and deterrence which have particular relevance in Mr Tew’s case.
[37] The end sentence I have calculated is materially different to the 150 hours’ community work and 12 month disqualification sentence imposed in the
District Court. I am satisfied that this sentence was manifestly excessive and the appeal should be allowed on that basis.
Result
[38]The appeal is allowed. The sentence imposed in the District Court is quashed.
[39] By way of substitution, I sentence Mr Tew to 90 hours of community work and six months’ disqualification from holding or obtaining a driver licence on the charge of driving dangerously. On the charge of failing to stop, I sentence Mr Tew to three months’ disqualification from holding or obtaining a driver licence, with such sentence to be cumulative on the six months disqualification already imposed. The total period of disqualification is therefore nine months.
Edwards J
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