Yan v Police

[2017] NZHC 1435

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000132

CRI-2017-404-000133 [2017] NZHC 1435

IN THE MATTER OF

an appeal against sentence

BETWEEN

TO YAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 June 2017

Counsel:

P J Kaye for the Appellant

G A Barkle for the Respondent

Judgment:

27 June 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 27 June 2017 at 11.30 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

YAN v NZ POLICE [2017] NZHC 1435 [27 June 2017]

Counsel:     P J Kaye, Auckland

Solicitors:    Meredith Connell, Auckland

Introduction

[1]    Mr Yan appeals against his sentence of 16 months’ imprisonment for the following charges:

(a)Two charges of driving while suspended or revoked (third or subsequent);1

(b)One charge of driving while suspended or revoked;2

(c)One charge of possession of a class A drug (methamphetamine);3

(d)One charge of possession of utensils;4

(e)One charge of driving while impaired.5

[2]    The appeal originally extended to a second one month cumulative sentence imposed for other driving and drugs charges. The appeal grounds advanced also included an error by the District Court Judge in not imposing home detention, and a failure to apply the full 25 per cent discount for the guilty pleas.

[3]    However, by the time of the hearing, the appeal grounds had narrowed. The appeal was only advanced in respect of the first sentence of 16 months’ imprisonment, and is confined to claims that the starting point adopted was too high and the uplifts were excessive.

1      Land Transport Act 1998, ss 32(1)(c) and 32(4). Maximum penalty two years’ imprisonment or a fine not exceeding $6,000.

2      Land Transport Act 1998, ss 31(1)(c) and 32(3). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.

3      Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2). Maximum penalty six months’ imprisonment.

4      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment.

5      Land Transport Act 1998, s 57A(1). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.

The offending

[4]    The charges relate to two separate sets of offending. The first set occurred in April 2016. Mr Yan was charged with driving whilst suspended (third or subsequent) on 18 April 2016. This was his seventh offence of this nature. On 27 April 2016, he was charged with driving whilst suspended. It appears that it was an oversight that he was not charged with the more serious third or subsequent offence at this time, because this was the eighth charge of this nature.

[5]    The second, and more serious, set of offending occurred on 31 August 2016. Mr Yan was stopped by police due to his erratic driving. He was charged with driving as a suspended driver (third and subsequent) – his ninth such offence. Subsequent testing revealed the presence of methamphetamine in his blood, and he was charged with driving while impaired. Mr Yan was also found to be in possession of methamphetamine and a methamphetamine pipe on this occasion. The August offending was committed whilst the April charges were still before the Court.

[6]    Mr Yan’s criminal history includes a number of driving related and drug related convictions. As already noted, the April offending involved the seventh and eighth driving while suspended (third or subsequent) offences. The August offending represented the ninth conviction of this type.

[7]    In addition, Mr Yan has a number of convictions for being an unlicensed driver and failing to comply with a prohibition, operating a vehicle carelessly, driving a motor vehicle in a dangerous manner, and failing to stop when followed by red and blue flashing lights.

[8]    Mr Yan also has a number of drug related convictions, including possession of methamphetamine utensils, production and manufacture of ecstasy, possession of cannabis, and possession of ecstasy.

District Court sentence

[9]    Mr Yan appeared for sentence in the Auckland District Court on 20 February 2017.

[10]   The District Court Judge took the August offending as the lead charges. He referred to the case of Apiata v Police, in considering an appropriate starting point.6 That case concerns the approach to be followed in cases involving multiple charges of driving whilst disqualified (third and subsequent), where there is prior history of such convictions.

[11]   The Judge adopted a starting point of 12 months’ imprisonment for all of the August offending, that is, including the drug related offending committed that same day. He then applied an uplift of six months for the 18 April 2016 offence, and a further uplift of two months for the 27 April 2016 offending. That brought the total starting point to 20 months’ imprisonment.

[12]   The Judge found there to be no other aggravating factors or mitigating factors of the offending. The only personal mitigating factor was the guilty pleas. He allowed a credit of four months for that plea (approximately 20 per cent) to reach an end sentence of 16 months’ imprisonment.

Approach to appeal

[13]   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.

[14]   In any other case, the Court must dismiss the appeal.7 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.8

6      Apiata v Police [2016] NZHC 3119.

7      Criminal Procedure Act 2011, s 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

Was the starting point too high and the uplifts excessive?

[15]I have approached this question by:

(a)considering the appropriate starting point for all of the driving whilst disqualified or suspended charges; and then

(b)considering the appropriate uplift for the balance of the offending.

[16]   As noted in Keenan v Police, and Opetaia v R, there appears to be two different approaches to setting a starting point for multiple charges of driving whilst disqualified (third or subsequent).9 The first approach involves setting a starting point for the index offending, and then uplifting it for prior charges, and prior relevant convictions.10 The second approach involves setting a starting point which reflects the degree of recidivism inherent in the charge.11 A starting point is fixed which reflects both the number of charges and the number of relevant prior convictions. Uplifts for the other charges for sentence are then applied. As Dunningham J noted in Keenan v Police, both approaches should result in the same starting point.12

[17]   In assessing the relevant starting point, I apply the second approach and note the following:

(a)There were three charges before the Court for sentencing. They represent charges 7 to 9 for this type of offending (with the proviso that the 27 April 2017 charge is a lesser offence, having not been charged as a third and subsequent offence).

(b)There was only a matter of months between the April and August 2016 offending. The next most recent charge occurred in 2010, with two

9      Keenan v Police [2014] NZHC 1894 at [20]–[23]; and Opetaia v Police [2015] NZHC 2532 at [36].

10     Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009, endorsed in Keenan v Police, above n 9, at [23].

11     Drinkwater v Police [2013] NZHC 1936, endorsed in Maxwell v Police [2013] NZHC 3172; Sykes v Police [2014] NZHC 2642; and Apiata v Police, above n 6, at [15].

12     Keenan v Police, above n 9, at [20]–[22].

charges in 2009, and three in 2008. The total period of offending spans nine years.

(c)As the 31 August 2016 driving charge involves the greatest extent of recidivism, being the ninth charge of this type, I fix a starting point for that charge first, with uplifts to be applied for charges 7 and 8.

[18]   In Whitley v Police, a starting point of 10 months for charge 11 was adopted on appeal, with two uplifts of four months each for the other charges.13 That led to a starting point of 18 months. In Opetaia, a 10 month starting point for the eighth charge was selected, with a three month uplift applied for each of charges 5, 6 and 7.14

[19]   On the basis of those cases, and the others set out in the schedule to Apiata, I consider a starting point of 10 months for the ninth charge on 31 August 2016 was appropriate. I apply an uplift of three months for the first of the April charges, and an uplift of one month for the 27 April 2016 charge (which reflects the lesser charge having been laid). That brings the starting point for the driving whilst disqualified offences to 14 months.

[20]   An uplift must then be applied for the balance of the August offending, that is, the possession of methamphetamine and utensil charges, and the charge of driving while impaired. I consider an uplift of between two and four months is justified for that offending. That would bring the total starting point to within the range of 16 to

18 months’ imprisonment which is just under the starting point of 20 months’ imprisonment adopted by the Judge.

[21]   However, whilst the prior convictions for driving whilst suspended or disqualified have already been taken into account in setting a starting point for those offences, a further uplift for prior drug offending and other driving related offences could have been applied. Mr Yan has five relevant drug related offences and a number of other driving related offences. A further uplift of between one to two months for prior relevant convictions was also available in my view. That would lead to a notional

13     Whitley v Police [2016] NZHC 1025.

14     Opetaia v Police, above n 9.

sentence of between 19 to 21 months’ imprisonment, before credit for the guilty plea was applied.

[22]   The Judge’s starting point of 20 months, although arrived at by a different route, is accordingly within range. There is no challenge to the adjustments made by the Judge. I am satisfied that the Judge did not err and that the sentence imposed was not manifestly excessive. The appeal must therefore be dismissed.

Result

[23]The appeal is dismissed.

Edwards J