MARTIN v NZ POLICE [2016] NZHC 1831

MARTIN v NZ POLICE [2016] NZHC 1831 [8 August 2016]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI 2016-454-28[2016] NZHC 1831BETWEEN ANDRE IHIMAERA MARTINAppellantAND NEW ZEALAND POLICERespondentHearing: 2 August 2016Counsel: P A Walker for AppellantM J Blaschke for RespondentJudgment: 8 August 2016JUDGMENT OF BROWN J[1] Mr Martin (the appellant) pleaded guilty to a charge of driving while disqualified (third or subsequent) and was sentenced on 14 June 2016 in the DistrictCourt at Palmerston North to a sentence of 14 months' imprisonment and a furtherdisqualification for 18 months. He appeals that sentence contending that it was manifestly excessive.District Court decision[2] While riding a motorcycle the appellant was stopped by police at a routine traffic stop. The motorcycle was unregistered and it was discovered that the appellant was subject to a disqualification period. Judge Wharepouri noted that the appellant had 14 previous convictions for the same offence, the most recent of which was in 2014. The Judge further noted that the appellant had a significant number of convictions for non-compliance with court orders. The Judge took into account the pre-sentence report and the list of previous convictions and arrived at the conclusion that the appellant is a recidivist offender with little or no remorse. However, theJudge also acknowledged there was evidence of the appellant's recent effortstowards rehabilitation.[3] After considering some similar cases, the Judge identified the appropriatestarting point range as being between ten and 20 months' imprisonment. A startingpoint of 18 months was adopted, which took into account the previous convictions for the same offence.[4] From that starting point, an uplift of four months was made to take intoaccount the appellant's other convictions for non-compliance with court orders. Reductions were then made for the efforts made by the appellant to change his lifestyle and for his guilty plea: two and six months respectively. The end sentencewas therefore 14 months' imprisonment.[5] The Judge then considered whether home detention would be an appropriate sentence and recorded:After giving the matter some careful thought, home detention is refused to you. In my view, that type of sentence is not consistent with the principles and purposes of sentencing in the Sentencing Act 2002. It would not bring a home [sic] to you the sentencing purposes of deterrence and denunciation, nor would it be suitable for the observations made by the report writer in the pre-sentence report, namely that the address hat was canvassed by the report writer would have you reside together with your partner who faces charges for similar type offending.[6] Finally, the Judge entered a disqualification of 18 months, noting that he was"obliged" to do so.Grounds of appeal[7] The appellant submits that the sentence was manifestly excessive for the following reasons:(a) The starting point was too high given that there were no aggravating features other than the non-registration of the motorcycle.(b) The uplift of four months for previous convictions was excessive and that care must be taken to ensure there is no double-counting when assessing this as an aggravating feature, given that it is relevant to setting the starting point.(c) There was insufficient credit given for the appellant's personalcircumstances, including his efforts to pursue a career, disengage from gang life and the fact that his partner is expecting a child.[8] The appellant further submitted that the period of disqualification did not need to be longer than 12 months, the mandatory minimum. The appellant urged the court to consider breaking the cycle of offending by declining to enter a further term of disqualification, in reliance on s 94 of the Land Transport Act 1998. That section applies where an offender is sentenced to a community-based sentence. Hence the appellant submitted that it would be appropriate to instead impose such a sentence, in lieu of imprisonment and disqualification.Was the sentence manifestly excessive?[9] It is well established that in the case a third or subsequent conviction for driving while disqualified, the number of previous convictions and frequency of offending dictates the culpability of the offence for which the sentence is imposed.1As Ronald Young J stated:2The proper approach in sentencing for a third or subsequent driving while disqualified charge is to reflect all of the appellant's previous convictions for driving while disqualified in the start sentence for the current offending. The increase in penalty passed by Parliament for a third or subsequent driving while disqualified charge, is intended to reflect the fact of the appellant's total previous driving while disqualified record. Accordingly it falls more naturally to consider his total previous driving record in the start sentence for a current driving while disqualified charge.[10] In Keenan v Police, a starting point of 20 months was left unchanged on appeal, where the defendant was being sentenced for the tenth driving while1 Tua v Police [2013] NZHC 2994 at [15]; Te Huia v Police HC New Plymouth CRI-2008-443-31, 10 March 2009 at [15]; Maxwell v Police [2013] NZHC 3172 at [12].2 Drinkwater v Police [2013] NZHC 1036 at [18].disqualified conviction.3 In that case, Mr Keenan had already served sentences of imprisonment, the longest being eight months. In Morrell v Police, an 18 month starting point was adopted for the tenth driving while disqualified conviction, and that too was unchanged on appeal.4 In R v Butterfield the Court of Appeal upheld astarting point of 18 months' imprisonment for an 8th and 9th offence sentenced together.5[11] It was submitted for the appellant that there is a need to look beyond the bare number of previous convictions and that the starting point should reflect the seriousness of the offence. In the present case it was said that there were no other aggravating features of the driving other than that the motorcycle was not registered. However given the fact of 14 previous convictions for driving while disqualified, a starting point of 18 months was plainly within the available range, albeit at the upper end. Indeed if there had been additional aggravating features it may have been appropriate to adopt an even higher starting point.[12] The uplift to the starting point of four months was explicitly for other convictions for non-compliance with court orders. Consequently, strictly speaking, there was no double-counting so far as concerns the appellant's prior history ofdriving while disqualified. However, while I accept that some uplift was justified, I consider that an uplift of four months for previous convictions of the nature identified was too high. In my view an uplift of two months would have been more appropriate.[13] The Judge took into account the appellant's personal mitigating features and applied a modest discount. That is appropriate where there was no evidence of remorse. The positive steps taken by the appellant towards a career away from gang involvement were recognised by the Judge. The discount for the guilty plea was especially generous, being more than 25 per cent.3 Keenan v Police [2014] NZHC 1894.4 Morrell v Police [2014] NZHC 856.5 R v Butterfield CA100/97, 23 July 1997.[14] In my view the sentence would more appropriately be calculated as follows:starting point 18 monthsuplift for previous non-compliance conviction two monthsdiscount for mitigating features (two months)18 months[15] Applying a full 25 per cent discount for the guilty plea produces a final figure of 13.5 months.[16] As Mr Blaschke correctly submitted:If the Court finds there is a material error affecting the sentencing process, the appropriate way to measure whether or not the end sentence imposed is manifestly excessive is to undertake the sentencing exercise itself in order to compare it with the sentence actually imposed. An error that may seem significant, but only results in an end sentence of a month or two different, in the context of a sentence of imprisonment, is not one that can be said to have rendered the sentence manifestly excessive. When a short sentence of imprisonment is imposed, the Court on appeal should not interfere with asentence when to correct an error would amount to 'tinkering' with the endsentence.[17] In my view when the difference between the sentence under appeal and the reassessed sentence is a mere fraction of a month, as in the present case, there is no sound basis for concluding that the sentence imposed was manifestly excessive.Disqualification and community-based sentence[18] The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion and, on appeal, the review focuses (as in other sentencing appeals) on the identification of any error in the court below.6 It is apparent from the decision that the Judge carefully considered whether home detention would adequately meet the purposes of sentencing.[19] The respondent notes that the appellant has a record of non-compliance with home detention and post-sentence conditions and has reoffended since serving those sentences. In addition, the pre-sentence report writer was evidently concerned about the unsupportive home environment at which a home detention sentence would be6 Manikpersadh v R [2011] NZCA 452 at [12].served. I accept Mr Blaschke's submission that there was no material error in the exercise of the discretion concerning home detention.[20] As a sentence of imprisonment has been imposed, it is not open to the court to consider making orders under s 94 of the Land Transport Act.7 Furthermore the disqualification period imposed was the same as that imposed for the appellant'smost recent previous conviction for driving while disqualified. In my view imposing any lesser period would not have been appropriate.Disposition[21] Consequently the various challenges to the sentence are rejected. The appeal is dismissed.______________________________Brown J7 See Gray v Police [2014] NZHC 3218.