RUSSELL v NEW ZEALAND POLICE [2018] NZHC 858

RUSSELL v NEW ZEALAND POLICE [2018] NZHC 858 [30 April 2018]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-18[2018] NZHC 858BETWEEN AIDAN DOUGLAS RUSSELLAppellantAND NEW ZEALAND POLICERespondentHearing: 30 April 2018(Heard at ROTORUA)Appearances: W Nabney for AppellantS J P Davison for RespondentJudgment: 30 April 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Russell pleaded guilty in the District Court to a charge of driving whilstdisqualified in its aggravated form. He has seven previous convictions for drivingwhilst disqualified. He also pleaded guilty to a charge of giving false details as to hisidentity. That is a fine only offence.[2] On 19 February 2018, Judge Coyle sentenced Mr Russell to nine monthsimprisonment.1 In doing so he rejected a submission by his counsel that a sentence ofhome detention was appropriate. Mr Russell contends the Judge erred in principlewhen fixing the starting point and adding an uplift for previous convictions. He alsocontends the Judge erred in imposing a sentence of imprisonment rather than homedetention.The facts[3] The facts of the offending are unremarkable. Mr Russell was disqualified fromdriving for a period of six months on 9 June 2017. At 3 am on 19 September 2017 thepolice stopped Mr Russell whilst he was driving a motor vehicle in Mt Maunganui.When asked for his details, Mr Russell gave a false name and date of birth. When thepolice discovered his true identity, he told him he was on his way to meet his brother.The Judge's decision[4] The Judge took a starting point of nine months imprisonment to reflect thegravity of the offending. He then added an uplift of three months to reflect the factMr Russell has been convicted on seven previous occasions of similar offending. Hegave Mr Russell a discount of three months, or 25 per cent, to reflect early guilty pleas.This resulted in the end sentence of nine months imprisonment.The appeal[5] On Mr Russell's behalf, Mr Nabney contends the Judge erred in two respects.First, he submits there was no need to apply an uplift to reflect previous convictionsbecause the previous convictions were already reflected in the starting point of ninemonths imprisonment. Secondly, he contends the Judge erred in principle in rejecting1 New Zealand Police v Russell [2018] NZDC 3038.the proposition that a sentence of home detention was appropriate. Mr Nabney basesone aspect of this submission on the fact that the Judge did not give express recognitionto the fact that Mr Russell's last conviction for similar offending had been in 2008.Mr Nabney contends that if the Judge had given weight to this factor, he ought to havedecided that a sentence of home detention was appropriate.Decision[6] I uphold Mr Nabney's submission in relation to the first ground of appeal. Thestarting point of nine months imprisonment reflected the fact that Mr Russell has sevenprevious convictions for similar offending on several occasions. The first of these wasin December 2004, when he was sentenced to two months imprisonment on a chargeof driving whilst disqualified. He was then sentenced to five months imprisonmenton 23 January 2007 on the same charge. On 26 May 2008, he was sentenced to sevenmonths imprisonment for driving whilst disqualified. Then, on 24 June 2008, hereceived a cumulative sentence of three months imprisonment on the same charge.That charge related to offending that had occurred just two days before he was due tobe sentenced on the previous charge.[7] Having regard to that background it is no surprise the Judge selected a startingpoint of nine months imprisonment, notwithstanding the fact that the present offendingoccurred some nine years after Mr Russell's last conviction for the same type ofoffending. I consider, however, that the starting point of nine months imprisonmentadequately reflected the fact that Mr Russell has not learned from previous sentences.There was no need for the Judge to add an uplift of three months to reflect that factor.[8] The second issue relates to the Judge's decision to impose a sentence ofimprisonment rather than home detention. Mr Nabney submits that the Judge placedundue weight on three factors. The first is that the Judge was under the impressionMr Russell's partner would need to leave the address at which Mr Russell proposed toserve the sentence of home detention. At the time of the offending Mr Russell wassubject to a protection order in favour of his partner who lived at that address. Theprotection order remained in existence at the date of sentencing, and observationsmade during the Judge's sentencing remarks indicate he did not consider Mr Russellwould be able to live at the address whilst serving a sentence of home detention.[9] As it transpires, Mr Russell had been living at that address with his partner'sconsent for some months prior to the present offending. His partner has now consentedto the protection order being discharged. It follows that there is now no impedimentto Mr Russell serving a sentence of home detention at his partner's address.[10] Mr Nabney also contends the Judge may have given undue weight toobservations made in the pre-sentence report regarding Mr Russell's failure to attendappointments arranged for the purpose of providing advice regarding sentencingoptions. Mr Russell's partner has provided an affidavit in which she explains why theperson who prepared the report was not able to speak to her or Mr Russell prior to thepreparation of the report. Finally, Mr Nabney contends the Judge failed to take intoaccount the fact that Mr Russell's last conviction for driving whilst disqualifiedoccurred some nine years ago in 2008.[11] I consider the first two arguments to be largely neutral in effect. The Judgewas clearly aware of the protection order, but it is clear that his decision was notpredicated on the basis that Mr Russell's partner would be required to leave theaddress. The Judge referred extensively to Mr Russell's previous convictions forbreaching Court orders and sentences. The most relevant of these for present purposesare two convictions entered in December 2015 for breaches of a sentence of homedetention. That sentence was imposed on 30 January 2015 on a charge of contraveninga protection order. It seems that Mr Russell left the address at which he was servingthe sentence of home detention on 4 November 2015, and committed a burglary on thesame date. He then breached his home detention conditions in another way just fourweeks later. In addition, Mr Russell has other convictions for breaching protectionorders, failing to answer District Court bail and driving whilst disqualified. The factthat Mr Russell was prepared to give false particulars to the police on the presentoccasion suggests he continues his attitude of defiance towards those in authority.[12] Having regard to those factors, I do not consider a sentence of home detentionwas a viable option in Mr Russell's case. The Judge cannot be criticised for electinginstead to impose a sentence of imprisonment.Result[13] The appeal is allowed to the extent that I consider it is necessary to rectify theJudge's error in imposing an uplift to reflect previous convictions. Taking a startingpoint of nine months imprisonment, I reduce that sentence by two months two weeks,or 25 per cent, to reflect Mr Russell's guilty plea.[14] I therefore quash the sentence of nine months imprisonment. In its place Iimpose a sentence of six months two weeks imprisonment.Lang JSolicitors:Crown Solicitor, TaurangaW T Nabney, Tauranga