Van Der Hayden v Police HC Christchurch CRI 2010 409 35

[2010] NZHC 348

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2010 409 35

THOMAS VAN DER HAYDEN

Appellant

v

POLICE

Respondent

Hearing:         23 March 2010

Appearances:  S Bailey for Appellant

T J Mackenzie for Respondent

Judgment:      23 March 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded to a spate of  offending  between  17  September  and  5

December 2009, which included three counts of excess breath alcohol, the appellant was sentenced to nine months imprisonment and disqualified for 21 months.  He had pleaded guilty.  This is an appeal against the length of the disqualification.

[2]      The appellant is 17 years of age.  Although he has some previous offending,

he did not have any previous  convictions  for  excess  breath  alcohol. Before  the events giving rise to his conviction the appellant had been forbidden to drive. As a result of a series of incidents he was charged with: reckless driving;   possession of

instruments (2);  driving while forbidden (3);  failing to stop;  excess breath alcohol

VAN DER HAYDEN V POLICE HC CHCH CRI 2010 409 35  23 March 2010

(3);   and  failing to  appear.   Clearly the  events  giving rise  to  the  convictions  were serious.

[3]      When imposing sentence the Judge described the offending as an “extraordinary and disgraceful” series of offending. He said that it had been made worse by virtue of the fact that the vast majority of the offending had occurred while the appellant was on bail  for  the  first  offences. The Judge considered  that  the appellant was either “extremely childish and immature” or he was “simply stupid”.

He also told the appellant that he should think about mending his ways while he was

in prison.

[4]      Significantly the Judge expressly treated all the offences as “one sequence”. Taking a starting point of 12 months imprisonment, he allowed a credit for the guilty pleas and arrived at the sentence of nine months imprisonment.   The appellant was also disqualified as follows:  six months for reckless driving, six months for the first excess breath alcohol, three months for the second excess breath alcohol (where he was  over  the  youth  limit  but  under  the  adult  limit),  and  six  months  for  the  third excess breath alcohol. Each disqualification was cumulative.

[5]       In support of this appeal Mrs Bailey emphasised a number of points:    this was a single sequence of events;  unlike others who have received lengthy periods of disqualification there were no previous offences for offending of this nature and the appellant could not be categorised as a recidivist offender;  he was only 17 years of age; prison  provided  the  primary  deterrence; the  totality  principle  has  been offended;   s 8(g) of the Sentencing Act 2002 required the Judge to impose the least restrictive outcome;   and, finally, in all the circumstances the period of 21 months disqualification   on   top   of   the   nine   months   of   imprisonment   was   manifestly excessive.   Mrs Bailey submitted that the appropriate length of disqualification was 12 to 15 months.

[6]      Mr Mackenzie reminded the Court that in each case the minimum mandatory disqualification had to be imposed by  the  Judge. He  emphasised  that  before  the offending arose the appellant had been served with a  notice  not  to  drive  and submitted that in truth this spate of  offending represented  recidivist  offending and

should  be  approached  on  the  same  basis  as  offending  where  the  offender  had previous  convictions  for  drink  driving.   He  also  noted  that  much  of  the  offending occurred while the appellant was on bail.   Mr Mackenzie submitted that  in all the circumstances  the  disqualification  was  in  line  with  such  decisions  as  Blacker  v Police  High  Court  Hamilton  CRI 2005-419-159,  16  December  2005  and  Fraser  v Police High Court Hamilton CRI 2005-419-28, 11 May 2005.

[7]      Clearly  it  was  within  the  jurisdiction  of  the  Judge  to  impose  cumulative periods  of  disqualification.                The  issue  is,  however,  whether  that  resulted  in  a sentence which, assessed against the totality principle, was manifestly excessive.

[8]      By any standards this offending was appalling.  But it also needs to be kept in mind  that  this  17  year  old  received  a  sentence  of  nine  months  imprisonment,  this being the  first  time  that  he  has  been  in  prison.   Indeed,  his  previous  record  is  not particularly significant.

[9]      I accept Mrs Bailey’s submission that for sentencing purposes the appellant is

in  a  different  category to  a  recidivist  offender  with  multiple  previous  convictions. Indeed, the Judge approached the matter on the basis that all of the offences were in one sequence extending over a little under four months.  That does not qualify him as a recidivist offender.

[10]     Coming back to the question of whether the 21 months disqualification was manifestly excessive, I have been persuaded that it was.  Blacker and Fraser did not involve an offender only 17 years of age.  Nor did they involve a situation where the offender had been sentenced to imprisonment.   In both those cases a fine had been imposed, this factor having attracted a comment by Ellen France J in Blackler at [14] that the fact that the appellant had avoided imprisonment was relevant in assessing the  appropriateness  of  the  disqualification.   She  also  noted  that  that  offender  had received every available sentencing option.  Thus in the present context the two year disqualification in Blacker and the eighteen month disqualification in Fraser do not offer much guidance .

[11]     In  Dixon  v  Police  HC  Christchurch,  CRI  2006-409-000244  Panckhurst  J noted at [42] that it has been long recognised that lengthy periods of disqualification can  prove  “so  daunting  for  offenders  that  further  offending  results”. Given  the appellant’s age and the nine month sentence of imprisonment, I have concluded that the disqualification of 21 months disqualification comes within that category and is manifestly   excessive. Judging   from   the   sentencing   remarks   the   sentence   of imprisonment   was   intended   to   provide   the   main   deterrence. In   my  view   a disqualification of 15 months would have been sufficient.

[12]     The appeal is allowed.  The disqualifications totalling 21 months are quashed.

In their place there will be the following disqualifications:   six months on the first excess  breath  alcohol  (17  September); a  cumulative  sentence  of  three  months disqualification on the second excess breath alcohol (17 November);   and a further disqualification of six months on the third excess breath alcohol (5 December) which is  cumulative  on  the  two  earlier  disqualifications. There  will  be  a  concurrent disqualification  of  six  months  for  the  reckless  driving. In  other  words  the  total disqualification will be 15 months.

Solicitors:            Crown Solicitor, Christchurch

S Bailey, Christchurch