WILSON v POLICE [2016] NZHC 506

WILSON v POLICE [2016] NZHC 506 [23 March 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000113[2016] NZHC 506BETWEEN AARON JOHN LESLIE WILSONAppellantAND NEW ZEALAND POLICERespondentHearing: 15 March 2016Appearances: D Matthews & T Smedley for the AppellantS E Burdes for the PoliceJudgment: 23 March 2016JUDGMENT OF NATION JBackground[1] Mr Wilson appeals against a sentence of two years four months'imprisonment on four charges of driving while disqualified, third or subsequent (his thirteenth to sixteenth such charges), imposed by Judge Farish on 11 March 2015.1[2] Mr Wilson now appeals on the basis that the end sentence was manifestly excessive.[3] Mr Wilson also seeks leave to appeal out of time, as eight months had passed between sentencing and the filing of the general notice of appeal.Principles on appeal / Approach on appeal[4] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence1 New Zealand Police v Wilson [2015] NZDC 3964.imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposedwas "manifestly excessive".4 As has been stated:5The 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 by the process by which the sentence is reached.Leave to appeal out of time[5] Mr Wilson sought leave to appeal out of time on the basis his instructions to appeal had not been adequately pursued by his then counsel.[6] As the enactment conferring the right of appeal, the CPA permits such an extension.6 The "touchstone" for granting such an application is the interests ofjustice in the particular case.7 Factors of relevance to the overall balancing test approach include:8 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] Such applications for leave routinely reduce to the reasons for the delay and the merits of the proposed appeal.9 In this instance, the appellant has explained the reasons for the delay. The basis for his appeal has sufficient merit for the appeal to be reasonably arguable. For that reason, at the hearing, I granted leave to appeal out of time.Judge Farish's approach[8] At the outset of her sentencing notes, Judge Farish emphasised that MrWilson's four convictions occurred not only whilst he was subject to release2 Criminal Procedure Act 2011, s 250(2).3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.5 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.6 High Court Rules, r 20.4(3)(a); Criminal Procedure Act 2011, s 220(3).7 R v Knight [1998] 1 NZLR 583 (CA) at 587.8 At 589.9 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].conditions for similar offending but also whilst he was subject to bail (with "fairly strict conditions"). Her Honour connected this serialised decision-making withmental immaturity, stating "I do not think your brain has properly matured yet foryou to think through these consequences".10[9] Judge Farish acknowledged submissions that these offences, while serious inmanifesting Mr Wilson's non-compliance with Court orders, lacked the aggravatingfeatures which had characterised Mr Wilson's offending in the past (including violence, alcohol abuse and failing to stop for flashing blue and red lights).However, her Honour also noted that "disqualification is not only imposed as apunitive aspect of sentencing, it is imposed as a precautionary and a protective factor for the community".11 With reference to Mr Wilson's pattern and history ofoffending, as well as his untreated drug issues, Judge Farish assessed Mr Wilson asposing a "high risk" to the community. She perceived Mr Wilson "to haveprogressed away from the serious violence now into basically driving when you feellike it", which placed himself and others at "an increased risk of things going seriously wrong".[10] As a consequence, Judge Farish held that the only sentence she could impose was one of imprisonment. Her Honour described this as a punitive term but onewhich is "also designed to try and put you in the right frame of mind upon release that you will think through the consequences of your actions".12 Beyond the punitive aspect, then, Judge Farish sentenced Mr Wilson for the purpose of promoting in the offender a sense of responsibility for, and an acknowledgment of, the harm done to the community.13[11] Judge Farish took a starting point of nine months' imprisonment on each ofthe charges, imposed cumulatively. The Judge declined to uplift the total starting point of 36 months, considering that it already encompassed the aggravating featureof Mr Wilson's criminal history. After applying a 20 per cent discount for guilty10 New Zealand Police v Wilson, above n 1, at [1].11 At [4].12 At [5].13 Sentencing Act 2002, s 7(1)(b).pleas, Judge Farish reached an end point of 28 months' imprisonment, along with a further 12 months' disqualification.14Discussion[12] Mr Matthews presented submissions for Mr Wilson. Mr Matthews was not counsel when Mr Wilson was originally sentenced. He submitted the Judge hadgiven insufficient regard to the "anodyne nature of the driving on each of the four occasions". He also submitted the Judge erred in going further when commentingthat his continued driving while disqualified did place others in the community at risk. In that context, the Judge had referred to his driving while disqualified being associated with untreated drug use. Mr Matthews referred to observations made by the High Court that driving while disqualified attracts punishment not because there is any fresh dangerous conduct but because the Court sanctions are meaningless unless they are obeyed.15[13] While I agree with those observations, I accept that there may be circumstances relating to a particular offender which justify a Court proceeding on the basis that, if that person is driving while disqualified, there may be a particular risk to other road users and members of the public. It was in that sense that Judge Farish said that Mr Wilson's driving while disqualified could create risks for others.I do not consider she was in error in saying this.[14] Mr Matthews also submitted the Judge had given insufficient weight to the progress Mr Wilson had made with regard to this sort of offending. He pointed out that Mr Wilson had not committed the offence of driving while disqualified in the 10 years between 2002 and 2012. He also referred to the fact that, on this occasion, his driving while disqualified charges were not associated with other more serious criminal offending, as had been the case in the past. Mr Matthews did acknowledge that, on 4 September 2014, Mr Wilson had been sentenced on seven charges of driving while disqualified, each of which was a third or subsequent offence for driving while disqualified. Mr Matthews submitted that more care should have been14 As required by s 32(4)(b) of the Land Transport Act 1998.15 Te Haara v Police HC Auckland CRI-2004-404-370, 5 October 2010 at [18], citing Lambert v Police HC Rotorua AP62/90, 11 October 1990.taken with regard to an uplift for previous similar offending to avoid Mr Wilson being sentenced twice for the same offending.[15] I agree with Judge Farish that the previous offending indicated that Mr Wilson simply ignored the disqualifications that had been imposed and drove when he felt like it, with contempt for the orders for disqualification that had been made by the Court. Although he had not appeared on driving while disqualified charges between 2002 and 2012, in 2012 and 2014 Mr Wilson had been sentenced on a charge of driving contrary to conditions of a license and failing to comply with a prohibition against driving. In 2008, Mr Wilson appeared on two separate excess breath alcohol charges.[16] Mr Matthews' strongest point in this appeal arose out of the basis on which the Judge reached a starting point of 36 months' imprisonment for the offending,encompassing the aggravating factor of his prior criminal offending. Judge Farish adopted a starting point of nine months' imprisonment on each of the four charges.Three of the charges were laid as charges for driving while disqualified, the charge being in relation to a third or subsequent offence of driving while disqualified. The maximum penalty on each such charge was two years' imprisonment.[17] The last charge was for simply driving while disqualified on 9 February 2015. On that charge, it was not alleged this was for a third or subsequent offence of driving while disqualified. The maximum sentence of imprisonment on that chargewas only three months. Accordingly, a starting point of nine months' imprisonmentcould not have been adopted for that particular charge. Clearly there was an error in the way that charge was laid. Neither the Police nor Mr Wilson's then counselpicked up that error at the time Mr Wilson was sentenced in the District Court. The charge was not amended.[18] While an error was made as a result of this in the way the Judge reached her final sentence, on appeal, I must concentrate on the end sentence which was imposed. I can allow the appeal and impose a different sentence only if I am satisfied that the error means a different sentence should have been imposed.[19] I do not consider the ultimate sentence of 28 months' imprisonment for thefour different offences was manifestly excessive. Three of the driving while disqualified offences were committed when Mr Wilson was on bail on a previous charge of driving while disqualified. Each of the offences was committed separately from the others. In that context, it was appropriate to impose cumulative sentences for the later three offences. The offences were committed over a relatively extended period: 10 September 2014, 28 November 2014, 7 January 2015, 9 February 2015. Mr Wilson clearly knew he should not have been driving. With the second offence, he had been found driving on a street in Christchurch. When stopped, he climbed into the back seat and claimed he was not driving.[20] Mr Wilson was being sentenced on his thirteenth to sixteenth convictions for driving while disqualified.[21] The Crown submitted the 20 per cent discount for the appellant's guilty pleaswas generous. I agree. He pleaded guilty on the day of trial for one of the offences and guilty at a case review hearing for another. On all charges, I accept the prosecution case was strong. It does appear the Court was dealing with a situation where Mr Wilson pleaded not guilty simply to delay the consequences of his offending. During the period of that delay, he committed further offences.[22] I was referred to other cases where the High Court has dealt with sentencing for similar repeated driving while disqualified offences.16 In those cases, the Court considered the appropriate starting point for the relevant offending. I consider that astarting point of 36 months' imprisonment on three charges of driving whiledisqualified, in each instance for a third or subsequent offence of driving while disqualified, and a fourth of charge of driving while disqualified was consistent with the starting points adopted in those cases. The 20 per cent discount for his guiltypleas was appropriate, Mr Wilson was sentenced to two years and four months'imprisonment.16 Keenan v Police [2014] NZHC 1894; Maxwell v Police [2013] NZHC 3172; Peterson v PoliceHC Hamilton CRI-2009-419-11, 20 February 2009; Drinkwater v Police [2012] NZCA 592; Tua v Police [2013] NZHC 2994; Sykes v Police [2014] NZHC 2642.[23] I have not been persuaded that a different sentence should have been imposed. I accordingly must dismiss the appeal and I now do so.Solicitors:Public Defence Service, ChristchurchCrown Solicitor's Office, Raymond Donnelly & Co., Christchurch.