Wilson v Police
[2014] NZHC 2128
•4 September 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-000060 [2014] NZHC 2128
AARON JOHN LESLIE WILSON Appellant
v
NEW ZEALAND POLICE
and
DEPARTMENT OF CORRECTIONS Respondents
Hearing: 4 September 2014 Counsel:
N R Rout for Appellant
MAJ Elliott for RespondentJudgment:
4 September 2014
JUDGMENT OF WHATA J
[1] Mr Wilson has filed two notices of appeal in relation to sentences imposed on him under the Summary Proceedings Act 1957 and under the Criminal Procedure Act 2011. The essential complaint, however, is that the appellant’s overall sentence for various types of offending was manifestly excessive amounting to a total of
26 months two weeks imprisonment on a variety of charges, some of which are resentences.
[2] The Crown accepts that it is open to me to reconsider the sentence imposed on some of the charges with the potential reduction of four months imprisonment in
the overall sentence.
WILSON v NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS [2014] NZHC 2128 [4 September 2014]
[3] I turn to examine whether the Judge below erred and if so whether the individual sentences or the overall sentence should be reduced.
Background
[4] The Crown helpfully identifies that there are four groups of charges. The first group of charges relates to matters which sentences were imposed on 6 August
2012. The appellant was sentenced to 90 hours community work for cultivating cannabis, possession of methamphetamine and possession of utensils. The sentences had been partly performed, leaving 41 and three-quarter hours of community work to be performed at the time of resentencing. The Judge on resentencing imposed a one month imprisonment on each, with the cultivation charge cumulative to the other charges.
[5] The second group of charges related to charges to which the appellant was originally sentenced on 11 January 2013. He was sentenced to one charge of driving while disqualified (third or subsequent) and two charges of possession of utensils. A sentence of 140 hours community work plus disqualification from driving for one year and one day was imposed.
[6] The Judge resentenced the appellant on a cumulative basis (unlike the previous Judge) to a substituted sentence of two months and two weeks.
[7] The third group of charges relates to matters originally sentenced on 11 July
2013. The group of charges included four of driving whilst disqualified (third and subsequent). There was a breach of community work.
[8] The appellant was resentenced to seven months imprisonment in substitution for nine months intensive supervision.
[9] The fourth group of charges concerned driving whilst disqualified (third and subsequent) and failing to stop for red and blue flashing lights and driving whilst forbidden.
[10] The Judge adopted a starting point of 18 months and added two months for aggravating factors. A five month credit was given resulting in a sentence of
15 months imprisonment. A further period of disqualification of one year and one day and a further three months disqualification on the charge of failing to stop was also imposed.
The grounds of appeal
[11] Mr Rout for the appellant submits:
(a) In relation to the first group of charges, that the one month sentences should have been concurrent in line with the first sentencing and the usual principles under s 84 of the Sentencing Act 2002, particularly when one considers that it replaced an unserved period of 42 hours work. Mr Rout now however accepts Mr Elliott’s submissions that they were in fact imposed concurrently and therefore takes no further issue on this ground.
(b)In relation to the second group of charges, that imposing two months and two weeks in substitution of 50 hours community work is manifestly excessive having regard to the principles laid down in R v Morgan.1
(c) In relation to the third group of charges, the punitive element (community detention) had effectively been served and therefore the appellant was resentenced to seven months imprisonment in substitution for nine months intensive supervision. This was said to be manifestly excessive.
(d) In relation to the fourth group of charges, a starting point of
18 months was too high bearing in mind that:
i.The driving at least in relation to one of the offences was unremarkable;
1 R v Morgan [2008] NZCA 232.
ii. It was close to the maximum of two years;
iii.The appellant was nowhere near the worst offender to come before the Courts in this regard;
iv. There was no aggravation by alcohol, injury, accident or similar factors so often prevalent in driving cases.
(e) In relation to overall sentence, the Judge failed to give sufficient credit for the extent to which Mr Wilson’s offending had lessened in both severity and frequency and the fact that he was effectively “on the run” from criminal elements when he was supposed to be reporting to his supervising probation officers. An overall sentence of close to 18 months would have been an appropriate result.
Crown position
[12] Mr Elliott for the Crown submits:
(a) In relation to the first group of charges, as I have noted, the Judge actually only imposed one month on these charges so that the end sentence was not disproportionate to the offending;
(b)In relation to the second group of charges it was open to the Judge to substitute a sentence of three months imprisonment for 150 hours community work applying the principles of R v Morgan.
(c) In relation to the third group of charges the Crown accepts that a sentence of seven months imprisonment in substitution for nine months intensive supervision is disproportionate and that applying R v Morgan imprisonment of less than three months would be appropriate.
(d)In relation to the fourth group of charges the Crown initially at least accepted that Judge Couch’s starting point of 20 months was
somewhat higher than the available range and that this Court could revisit that assessment. However in later submissions additional authorities were identified as supporting the starting point adopted.
[13] As to overall sentence, the Crown submits that it was open to the High Court to reconsider the sentences imposed on the third group of charges and to reduce the sentence from seven months imprisonment to three months or less with a corresponding reduction in the overall sentence accordingly.
Assessment
[14] I have already dealt with the first group of charges. That ground of appeal has been effectively withdrawn.
[15] I propose now to deal with the third group of charges. The Court of Appeal in R v Morgan substituted a sentence of eight months imprisonment in place of
150 hours with a sentence of three months. By parity of reasoning, the sentence of seven months imprisonment in substitution for nine months intensive supervision is disproportionate and should be corrected. I therefore substitute the imposed sentence with a sentence of two months imprisonment.
[16] As to the fourth group of charges the starting point of 18 months in relation to the combination of driving while disqualified (third and subsequent), failing to stop for red and blue flashing lights, and driving whilst forbidden, was arguably excessive, notwithstanding the fact that the driving while disqualified offences were
the 11th and 12th convictions. The Crown has helpfully essayed a number of
decisions with end sentences markedly less than the end sentence in this case while also noting a range of sentences at about the same level or higher. I note that in Reid v Police2 the High Court considered that a starting point of 12 months imprisonment relating to a tenth conviction for driving while disqualified was justified, although reasonably lenient. There is also the decision of Kingi v Police3 also involving ten previous convictions for driving while disqualified, where a starting point of
16 months was used. Mr Elliott also observed in oral argument that an effective
2 Reid v Police HC Palmerston North CRI 2007-454-33, 6 September 2007.
3 Kingi v Police HC Auckland CRI 2009-404-399, 19 February 2010.
starting point of 18 months appears high although arguably not excessively so. Mr Rout also submits that Mr Wilson should receive credit for apparent change in his offending behaviour, that is from serious offending to relatively minor offending, essentially personal to him. He says that this aspect appears to have been missed by the Judge in his uplift. Mr Elliott also helpfully noted that a large number of the driving offences occurred more than ten years ago.
[17] Having taken into account the range of authorities presented and Mr Wilson’s personal circumstances, I consider that an appropriate starting point for sentence should have been 16 months, rather than the 20 months used. This corresponds to an overall reduction in sentence of a further four months.
[18] I now turn to the remaining contentious part of the appeal.
[19] The second ground of appeal relates to the substitution of two months two weeks imprisonment for 50 hours community work. It is at first blush manifestly excessive. The Crown submits it was available in fact to the Judge to impose a sentence of 140 hours originally and that the Judge was entitled to resentence on that basis, rather than the 50 hour estimate.
[20] Judge Couch in fact said in his judgment:
[3] On 11 January 2013 you were sentenced to 140 hours’ community work for driving while disqualified, third or subsequent and two charges of possession of utensils.
[4] On that occasion Judge Walsh expressly recorded those sentences as being concurrent. I am clear that what he meant was to be concurrent with each other rather than to be concurrent with the previous sentence, but because of the way it has been worded it has to be regarded as concurrent with all existing sentences. So that effectively subsumed the sentences imposed in August 2012 and at that stage there was a total of 140 hours.
[5] On 11 July 2013 you were sentenced to 150 hours’ of community work in lieu of disqualification under s 94 Land Transport Act 1998. That was expressly said to be cumulative, so that meant you had a total of 290 hours community work.
[21] Having in effect combined the two sentences the resentence for the second set of offending should have been set to 50 hours being the difference. Judge Couch has, it appears, taken the view that the sentence should be treated cumulatively rather
than concurrently. I can see why but the task of resentencing should start with the baseline set by the original Judge and then assess whether the substituted sentence can fairly be imposed. I therefore consider that the Judge erred in this respect also.
[22] As a result of the foregoing the end sentence of 26 months two weeks imprisonment shall be reduced by five months in relation to the third group of charges, four months in relation to the fourth group of charges and one month two weeks in relation to the second group of charges, effectively resulting in a reduction of ten months and two weeks and an end sentence of 16 months.
[23] In line with the principles discussed in R v Morgan I consider that an overall sentence of 16 months in relation to the totality of the offending adequately serves the purposes and principles of sentencing.
Solicitors:
Better Lawyers Limited, Christchurch
Raymond Donnelly & Co, Christchurch