Williams v Police

[2015] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000028 [2015] NZHC 1118

BETWEEN

SERGIO FEDERICO WILLIAMS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 May 2015
Appearances:	A G James for Appellant S E Burdes for Respondent
Judgment:	25 May 2015

JUDGMENT OF DUNNINGHAM J

[1]      Sergio   Federico  Williams   appeals   against   a   sentence  of  32   months’ imprisonment imposed on four charges of driving while disqualified (third or subsequent).

[2]      He submits that the sentencing methodology used by the sentencing Judge was incorrect and has resulted in an end sentence which is manifestly excessive in terms of s 85(3) of the Sentencing Act 2003.

[3]      He also seeks leave to appeal out of time as the notice of appeal was filed on or about 7 April 2015 when, under s 248 of the Criminal Procedure Act 2011, it was required  to  be  filed  within  20  working  days  of  the  date  of  sentencing,  being

1 December 2014.

Leave to appeal

[4]      I will deal with the application for leave to appeal out of time first as it necessarily precedes consideration of the substantive appeal.

WILLIAMS v NEW ZEALAND POLICE [2015] NZHC 1118 [25 May 2015]

[5]      The explanation for the late filing of the appeal is that Mr Williams had previously filed a notice of general appeal within time, albeit on an incorrect form supplied  to  him  by  a  corrections  officer.     This  form,  once  completed,  was erroneously emailed by the principal corrections officer to the Court of Appeal. Mr Williams, understandably, had assumed that he had filed his appeal within time and was awaiting advice on a hearing.   Once the error came to light, the current appeal was filed.

[6]      The Criminal Procedure Act 2011 permits an extension of time for the filing of an appeal.1   The “touchstone” for granting such an application is the interests of justice in the particular case.2     Factors of relevance to the overall balancing test approach include:3

… the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

[7]      Recent appellate authorities acknowledge that extension of time applications routinely reduce to the reasons for the delay and the merits of the proposed appeal.4

It is for the appellant to provide sufficient information to satisfy the  Court that granting leave is in the interests of justice.5

[8]      It is clear that there has been a genuine error in the filing of the appeal and that this failure arose in circumstances which are reasonably to be excused.6    It is also clear that granting leave will cause no prejudice to the respondent, indeed the respondent does not object to the extension of time sought.  Furthermore, this is not a case where I could reject the appeal as meritless on its face.  Accordingly, I grant leave to file the appeal out of time and go on to consider the parties’ substantive

submissions on the appeal against sentence.

1      Criminal Procedure Act 2011, s 220(3).

2      R v Knight [1998] 1 NZLR 583 at 587.

3      At 589.

4      Mikus v R [2011] NZCA 298 at [26].

5      R v Davis [2007] NZCA 577 at [13].

6      David v Police [2014] NZHC 2568 at [11].

The offending

[9] subs	The quent) (a)	appellant’s  four  offences  of  driving  while  disqualified  (third  or comprise: On   14  April   2013,   the   appellant   drove   while   disqualified   in
Ashburton.  He pleaded guilty and was convicted;
(b)	On  25  May  2013,  the  appellant  drove  in  Christchurch  while disqualified.  He was convicted following a Judge alone trial;
(c)	On 1 April 2014, the appellant drove in Christchurch.   He pleaded guilty to driving while disqualified, third or subsequent, following a
sentencing indication from Judge Garland and was remanded on bail to a sentencing date of 31 October 2014;
(d)	On 16 October 2014, the appellant again drove in Christchurch while disqualified.     He  pleaded  guilty  to  a  charge  of  driving  while
disqualified, third or subsequent and he was remanded in custody awaiting sentencing.

[10]     While it is accepted there were no additional aggravating features in relation to the driving on each of these occasions, the appellant has 11 previous convictions for driving while disqualified.

[11]     Importantly, on the first and second offences, the appellant was originally dealt with in the Ashburton District Court on 24 February 2014.  He was disqualified from driving for a period of 12 months and further ordered not to acquire an interest in any motor vehicle for a period of 12 months.  On both matters, he was ordered to come up for sentence if called upon within 12 months.  He was expressly warned that if he committed a similar offence within the next 12 months, or appeared before the  Court  on  any  offence  with  the  possibility  of  more  than  three  months’

imprisonment, the Judge dealing with the new matter may well be asked to impose a further penalty on these two charges.7

The District Court decision

[12]     Following a Police application under s 111 of the Sentencing Act 2002, the appellant came before Judge Garland for sentencing on all four charges.8

[13]     After  recording  the  sentencing  indication  he  gave  for  the  1 April  2014 offending, and detailing the facts giving rise to all four charges, Judge Garland summarised the report of the probation officer that had been requested after the appellant pleaded guilty to the third charge.   Significantly, that report expressed concerns about Mr Williams’ lack of contrition and assessed his risk of re-offending as being high.  Indeed, in her assessment, it was not a case of “if” Mr Williams was going to offend again, but “when”.  Her assessment proved correct when he offended one week after the interview with the probation officer.

[14]   After articulating the applicable purposes and principles of sentencing, emphasising denunciation and deterrence as the dominant purposes, the Judge went on to sentence the appellant as follows:

[12]     … It is obvious to me, Mr Williams, despite what you say in your letter, that you treat the order of this Court with complete contempt.  None of the four driving whilst disqualified offences involved any other form of aggravation in terms of your driving conduct.  Each offence is a separate and discrete  crime.    I,  therefore,  intend  to  adopt  a  cumulative  sentencing approach overlaid by the totality principle.

[13]     On each charge, that is each of the four charges of driving whilst disqualified third or subsequent, I adopt a starting point of 10 months’ imprisonment.  That gives an overall starting point on a cumulative basis of

40 months’ imprisonment. Applying the totality principle, I reduce that to an overall starting point of 30 months’ imprisonment.

[14]      I turn now to consider aggravating and mitigating factors personal to you.  Your past history, including your 11 previous convictions for driving whilst disqualified or suspended and your offending while on bail, in my view, warrants an uplift of 12 months.  Your guilty pleas, on the other hand, justify a reduction in sentence of 10 months. That gives the following result. Mr Williams you are sentenced to 32 months or, that is, two years and eight months’ imprisonment…

7      Police v Williams DC Ashburton CRI-2013-003-198, 24 February 2014 at [2].

8      Police v Williams DC Christchurch CRI-2013-009-5842, 31 October 2014.

Principles on appeal

[15]     The appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.  Section 250 of the Act requires that the appeal be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.9    A different sentence will clearly be required if the error in sentencing resulted in a sentence that was “manifestly excessive”.

[16]     Toogood J recently explained the approach to the second limb of the s 250 test in Larkin v Ministry of Social Development, saying:10

[26]     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.

The appellant’s submissions

[17]     Mr James, for the appellant, submitted that the Judge erred in adopting the sentencing methodology he did and this resulted in a manifestly excessive sentence contrary to s 85(3) of the Sentencing Act 2002.  Specifically, he says the Judge erred by commencing with a starting point of 40 months for the four charges, deducting

10 months having regard to the totality principle, and then uplifting by 12 months to reflect previous convictions.  Instead, he says the correct approach would have been to establish a starting point reflecting all charges and the inherent recidivism in them, and then to apply the discount for guilty pleas.   Taking that approach, he says a starting point of 24 to 30 months would be appropriate.  Having then discounted for the guilty pleas, an appropriate end sentence would be 18 to 23 months.  This would

be within range and consistent with other authorities.11

The respondent’s submissions

[18]     Mr Burdes, for the respondent, acknowledged that the higher courts have applied  different  methodologies  when  determining  appeals  against  sentence  for

9      Section 250(2).

10     Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

11     Citing Maxwell v Police [2013] NZHC 3172; Drinkwater v Police [2013] NZHC 1036; Kauhou v Police [2014] NZHC 140; Sykes v Police [2014] NZHC 2642.

recidivist disqualified drivers.  One approach adds an uplift for a significant number of previous offences to the identified starting point (as was the case here); the other reflects the extent of the previous offending into the starting point adopted.

[19]     However, notwithstanding the variation in methodology used, an effective starting  point  which  reflects  both  the  current  and  previous  offending  can  be identified in other cases such that they remain of value.

[20]     Given the manner in which these particular offences were committed and the apparent failure of previous sentences of imprisonment to alter the appellant’s behaviour, he submits the sentencing Judge was entitled to adopt a cumulative methodology.  Furthermore, relying on comparable cases, the available starting point of around 16 to 20  months for each  individual offence meant  that an  effective starting point of 42 months’ imprisonment was not manifestly excessive, nor was the end sentence of 32 months.   He also submitted that the discount for guilty pleas (which was close to the maximum allowable) was generous when the conviction for one of the four offences was after a Judge alone trial, and where the guilty verdict on another was not entered until some four months after he was charged and after a sentencing indication was given.

Discussion

Methodology

[21]     In Keenan v Police, I noted the divergent approaches to setting the starting point in cases involving previous offending for driving while disqualified, third or subsequent.12   The first approach sets the starting point by reference to the maximum penalty available for the offence committed and any aggravating or mitigating features of the offence itself, and then uplifts for previous offending,13  whereas recent case law on driving while disqualified, third and subsequent, tends in the direction of a second approach which sets the starting point by taking into account

both the offence under consideration and the defendant’s previous convictions for

12     Keenan v Police [2014] NZHC 1894.

13     Peterson v Police, HC Hamilton CRI-2009-419-11, 20 February 2009.

driving while disqualified.   Any further uplift depends on additional aggravating features personal to the defendant.

[22]     As I concluded in Keenan, whichever approach is adopted, the end result is unlikely to be materially different.  Neither party disputed that someone facing their fifteenth  driving  while  disqualified  offence  would  face  a  significantly  higher sentence than someone convicted on their fifth.

[23]     Accordingly, rather than focusing on the methodology, I think it better to focus on the starting point which would apply to a twelfth or subsequent offence before taking any discounts into account;

(a)       whether it is appropriate to treat the four charges cumulatively;

(b)the application of the totality principle to the sentencing exercise, to determine whether the end sentence was manifestly excessive and so a different sentence should be imposed.

Starting point

[24]     If the approach supported by the appellant is  adopted, then  I accept  the respondent’s submission that the starting point for a single offence of driving while disqualified, third or subsequent which represents a defendant’s twelfth – fifteenth such  offence,  would  be  in  the  range  of  16  –  20  months’  imprisonment.14

Cumulatively for  four  such  offences,  an  overall  starting  point  of 64-80  months

imprisonment  could  be adopted. Although  this  would  clearly offend  the totality principle, it suggests the effective starting point of 42 months’ imprisonment reached in this case is not out of range on a cumulative approach.

[25]     On a different view, an initial starting point of 10 months was set for each offence.  The overall reduction of 10 months for totality represents a discount of two

and a half months per offence.   The uplift of 12 months for previous offending

14     See for example Keenan v Police [2014] NZHC 1894; Drinkwater v Police [2013] NZHC 1036; Mear v Police HC Napier CRI-2010-441-42, 27 October 2010; Tua v Police [2013] NZHC 2994; Sykes v Police [2014] NZHC 2642.

represents an increase of three months per offence.  Therefore, for each individual offence, the effective starting point was ten and a half months imprisonment.  On this analysis, the sentencing is again well within range.

[26]     Under either analysis, the Judge did not err in adopting the starting point of

40 months, or in adjusting it to culminate in an end sentence of 32 months’ imprisonment. As both stages of sentencing are within range, this ground of appeal must fail.

Cumulative sentencing

[27]     Although these four offences are of “a similar kind” in terms of s 84 of the Sentencing Act, this section does not remove the jurisdiction to impose cumulative sentences where appropriate.15   Cumulative sentences are particularly appropriate for offences committed while subject to an order to come up for sentence if called upon, or while on bail.16

[28]     The appellant committed four separate offences of driving while disqualified. Despite previous sentences of imprisonment, he was ordered to come up for sentence if called upon on the first and second offences.  Within six weeks of this order being imposed, the appellant committed the third offence.  He pleaded guilty to the third offence and was given a sentence date.  Two weeks before sentencing and while on bail, he committed the fourth offence.  As Judge Garland noted, the appellant has

treated  the  various  orders  of  the  Court  “with  complete  contempt”.17     The

pre-sentence report also  militates against the imposition of low-level  concurrent sentences, recording the appellant’s “casual attitude” towards the offending, low motivation to change, and his high risk of reoffending.

[29]     Both the seriousness of the offending and the appellant’s manifest history of

non-compliance, favour cumulative sentences of imprisonment.   As the Court of

Appeal noted in R v McQuillan, the previous short term sentences of imprisonment

15     Sekai v Police [2014] NZHC 1348 at [26]; R v McQuillan CA 129/04, 12 August 2004 at [24];

Paikea v Police [2013] NZHC 2466 at [12].

16     Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA84.9]; Makiri v Police HC Auckland

CRI-2007-404-48, 16 July 2007 at [12].

17     Police v Williams, above n 8, at [12].

served for similar offending have clearly “failed to bring home to him his responsibilities”.18    Given Judge Garland’s emphasis on the need for denunciation, deterrence and the relevant principles of sentencing, his Honour was entitled to adopt a cumulative approach.

[30]     While the appellant did not resist a degree of cumulative sentencing, he did submit that the 2013 sentencing should have been treated as concurrent offences, as they were effectively dealt with in that way by the District Court in Ashburton. However, that overlooks the fact that the judge expressly reserved the ability to impose further penalties on both charges should the appellant re-offend in the next

12 months and there was no fetter on such penalties being considered cumulatively.

Application of the Totality Principle

[31]     Judge Garland was clearly alive to the necessity of considering the totality principle.19     Based on this principle, his Honour adjusted the starting point from

40 months to 30 months.20   Given my finding as to the appropriateness of cumulative

sentences of imprisonment for these four discrete, albeit similar, offences, and the available starting point of around 16 - 20 months for each individual offence, neither the starting point of 30 months, nor the end sentence of 32 months, offends against the totality principle.

Conclusion

[32]     No matter which way the appeal is approached, I cannot reach the conclusion that the sentence was manifestly excessive, and that a different sentence should be imposed.  The end sentence proposed by the appellant of 18 to 23 months, is within the higher range of the sentencing band for one single such offence.  Although, it also takes into account the guilty pleas on three of the four charges, such a sentence would not reflect the cumulative culpability for the four separate offences committed over an 18 month period and when the last two were committed in circumstances where he had had the warning of the District Court in Ashburton, and when one of

them was committed while on bail.

18     R v McQuillan, above n 14, at [24].

19     Sentencing Act 2002, s 85.

20     Police v Williams, above n 8 at [13].

[33]     Sentences in this range have been imposed where there are two driving while disqualified, third or subsequent, offences.  It is inevitable when four such offences are being considered, that the total penalty will be commensurately higher.

[34]     Accordingly, the appeal is dismissed.

Solicitors:

A G James, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch