BISHOP-LISTER v NEW ZEALAND POLICE [2022] NZHC 216

BISHOP-LISTER v NEW ZEALAND POLICE [2022] NZHC 216 [18 February 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-1CRI-2022-443-2CRI-2022-443-3[2022] NZHC 216BETWEEN BARRY JAMES BISHOP-LISTERAppellantAND NEW ZEALAND POLICERespondentHearing (by VMR): 17 February 2022Counsel: J C Hannam for the AppellantJ E Bourke for the RespondentJudgment: 18 February 2022JUDGMENT OF GWYN JSummary[1] On 17 May 2021, the appellant was sentenced to community work andcommunity detention on two charges of driving while disqualified and one of assaulton a person in a family relationship.[2] On 15 November 2021, the appellant was sentenced for breaching thecommunity work and community detention conditions, as well as for two further setsof offending relating to driving misconduct. The sentence at issue in this appeal relatesto the following charges:(a) breaching conditions of community detention (s 69G(a) of theSentencing Act 2002);11 Maximum term of imprisonment of 6 months, or a fine of $1,500.(b) breaching conditions of community work (s 71(1)(a) of the SentencingAct);2(c) two charges of driving while disqualified—third or subsequent offencer (s 32(1)(a) and 32(4) of the Land Transport Act 1998);3(d) operating a vehicle carelessly (s 37 of the Land Transport Act);4 and(e) failing to stop when followed by red/blue flashing lights(s 52A(1)(a)(ii)).5[3] The appellant was sentenced to 18 months' imprisonment and adisqualification of two years and six months was imposed by Judge Greig in theWhanganui District Court.6[4] On 11 January 2022, the appellant filed an appeal against sentence.Background[5] The appellant was disqualified from driving in October 2020 with thedisqualification period to begin on 15 March 2021.[6] On 25 June 2021, the appellant was found driving while trying to locate hisson who was in some distress. Mr Bishop-Lister says this situation has caused himsignificant stress. As a result of what has happened to his son, the appellant has hadto become involved in other court proceedings. He has experienced a breakdown ofthe previously co-operative parenting relationship with his son's mother. Theappellant's background context also includes having to relocate out of his stepfather'sresidence, who is a recovering alcoholic and is considered controlling and difficult bythe appellant. Mr Bishop-Lister says he has felt overwhelmed by the consequences ofdealing with simultaneous District Court and Family Court proceedings while also2 Maximum term of imprisonment of 3 months, or a fine of $1,000.3 Maximum penalty of two years, or a fine of $6,000; and, the Court must order the person to bedisqualified from holding or obtaining a driver licence for one year or more.4 Maximum penalty is a fine of $3,000.5 Maximum penalty is a fine of $10,000.6 Police v Barry James Bishop [2021] NZDC 22398.contending with the consequences of his son's situation, fractured family dynamicsand Covid-19.[7] On 27 August 2021, the appellant drove again while disqualified. In thisinstance, the appellant said he was driving to procure a car part for a repair. Afterrealising that he had come to the attention of the Police, the appellant drove carelessly,ignored the flashing lights of the Police and attempted to flee. He was located soonafter. The appellant has expressed remorse for this offending and explained it as alapse of judgement in a panicked moment.[8] The appellant's failure to comply with community detention is, he says, alsorelated to his actions surrounding his son's situation. The appellant says he needed toprotect his son and guard his wellbeing which resulted in him being absent from theprescribed residence between 13 August 2021 and 24 August 2021. The appellant saysthat personal issues with his stepfather also made it difficult for him to comply withcommunity detention conditions.[9] The appellant's failure to complete his community work obligations are alsoexplained by him by reference to the difficult personal conditions he was experiencing.District Court decision[10] The sentencing Judge started with nine months' imprisonment for each of thetwo driving while disqualified charges, resulting in a total of 18 months'imprisonment. The Judge then uplifted the sentence by six months to reflect theappellant's manner of driving and for offending on bail, leading to a total of 24 months'imprisonment. The Judge described this calculation as having been done on a totalitybasis.[11] The Judge added a further three months to the sentence for the breaches ofcommunity detention and community work orders. From the new total of 27 months,the Judge deducted nine months for the appellant's guilty pleas and the "distressingsituation" the appellant was in. The final sentence was, accordingly, 18 months'imprisonment.[12] The Judge declined to give the appellant leave to apply for home detentionbecause of the appellant's repeated failures to comply with previous sentences.Additionally, the appellant had not co-operated with the Probation Officer with theresult that a recommendation of home detention could not be given.[13] Finally, the Judge disqualified the appellant from driving for a period oftwo years and six months.Grounds of appeal[14] The grounds of appeal are:(a) the sentence of 18 months' imprisonment is manifestly excessive;(b) the driving disqualification for two years and six months is manifestlyexcessive; and(c) leave to apply for home detention should have been granted.SubmissionsFor the appellant[15] The appellant submits that the sentence did not correctly reflect the totalityprinciple: there was no reduction for totality nor was the original starting point priorto totality articulated. Additionally, the uplift of six months to reflect the manner ofdriving and offending on bail was incorrect as the manner of the appellant's drivingwas already reflected in the careless driving and failing to stop at the blue/red flashinglights charges. Further, the uplift for offending on bail neutralises the totalityprinciple.[16] The appellant also submits that sufficient discounts were not given for hisremorse, early guilty pleas and the difficult circumstances the appellant wasexperiencing. The appellant submits that a final sentence of 12 months' imprisonmentshould be substituted.[17] On the issue of driving disqualification, the appellant submits that the specialcircumstances of this case, arising from the appellant's concern for the safety of hisson, warrant the application of s 81 of the Land Transport Act so that only a reduceddisqualification should be imposed. Mr Hannam acknowledged that s 81 would notassist in respect of the second driving while disqualified charge.[18] Finally, the appellant submits that leave to apply for home detention shouldhave been granted despite his past compliance breaches because by declining leave,the appellant has gone from community-based sentences straight to imprisonment;home detention as a sentence should not be bypassed in this way.For the respondent[19] The respondent has submitted that a global starting point of 18 months'imprisonment is consistent with the authorities and appropriate for the present case.Mr Bourke responsibly conceded that the 18 months starting point sufficiently takesinto account previous offending, and therefore, no uplift for that is necessary.[20] The respondent submits that a three-month uplift for breaches of communitydetention, while stern, is appropriate. Additionally, the respondent submits that afurther two-month uplift for failing to comply with community work conditions is alsowarranted.[21] On the issue of the driving disqualification, the respondent submits that thesentencing Judge was best placed to consider the period of disqualification. Therespondent notes the repeated instances of the appellant driving while disqualified andsubmits that the period imposed, of two years and six months, is appropriate.[22] Finally, the respondent cites the appellant's non-compliance with community-based sentences and refusal to engage with the Probation Officer as support forimprisonment being the only available sentence in this case.Relevant lawSentence[23] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence isan appeal against a discretion and must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.7 Although s 250 does not refer to "manifestly excessive",it is a principle that is well-established in the Court's approach to sentence appeals.8[24] It is not for the appeal court to "tinker" with an end sentence if it is withinrange.9 The focus is on the final sentence and whether that was in the available range,rather than the exact process by which it was reached.10 The Court of Appeal hasaccepted, however, that there may be cases where "what has gone wrong was such asto require correction albeit the sentence imposed is within range".11Period of driving disqualification[25] On appeal, counsel for the appellant has raised for consideration the applicationof s 81 to reduce the period of the appellant's driving disqualification.[26] Section 81(1) of the Land Transport Act 1998 provides:81 Mandatory disqualification: court's discretion if special reasonsrelating to offenceIf any provision of this Act (other than section 63) requires a court todisqualify a person from holding or obtaining a driver licence ortransport service licence for a period not less than the specifiedminimum period, the court must order that the person be disqualifiedaccordingly unless for special reasons relating to the offence it thinksfit to order otherwise.[27] In Drummond v Police, the Court noted that a special reason for the purposesof s 81 is "not simply a reason, or even a good reason". Instead, it "must be of asufficiently compelling nature to justify departing from the usual consequence for7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.8 At [35].9 Ripia v R [2011] NZCA 101, at [15].10 At [15].11 Tutakangahau v R, above n 7, at [36].disobeying a legal prohibition on driving".12 A matter of urgency or importance isrequired before an appellant can benefit from s 81.Leave to apply for home detention[28] In R v Morgan, a substituted sentence of two months' imprisonment wasimposed for an original sentence of 150 hours community work that had not beencompleted. The Court of Appeal noted that:13[W]hile we accept that there must be some proportionality between thesentence originally imposed and the substituted sentence, we do not considerthat there can be any strict correlation between them, much less somemathematical formula. The essential point is that the substituted sentence mustbe one that could properly have been imposed initially; and it must be imposedagainst the background that a sentence of community work was thoughtinitially to be appropriate.The Court emphasised that a re-sentence was not an opportunity to punish the offenderfor the failure to comply with the community work sentence. In that case, the Courtheld that a substituted sentence of eight months' imprisonment bore no relationship tothe original sentence of 150 hours of community work, and therefore, appeal againstit was allowed with a substituted sentence of two months' imprisonment imposedinstead.14AnalysisSentencing[29] In Whitely v Police, the appellant's explanation for driving while disqualifiedsuggested he was "simply flouting his disqualification".15 A starting point of10 months was adopted for the eighth conviction and four months each for the sixthand seventh convictions, for a total starting point of 18 months' imprisonment.[30] In Jenkins v Police, a starting point of nine months was considered appropriatefor the appellant's seventh conviction and three months for his sixth conviction, for a12 Drummond v Police [2014] NZHC 1851 at [14].13 R v Morgan [2008] NZCA 232 at [15].14 At [16].15 Whitley v Police [2016] NZHC 1025 at [31].total starting point of 12 months' imprisonment.16 The explanations provided by theappellant in that case were considered to be genuine, but they did not excuse theoffending.17[31] In Jonathan v Police, a starting point of 12 months for the sixth conviction andfour months for the seventh conviction was adopted, resulting in a total starting pointof 16 months.18 The Judge was prepared to find that special reasons existed to notdisqualify the appellant for the seventh conviction, but that the conduct reflected poorjudgement nonetheless.19[32] In light of these authorities, I consider that the starting point of nine months foreach of the appellant's fifth and sixth driving while disqualified convictions, totalling18 months (the same starting point adopted in Whitely v Police) was excessive. In thepresent case, I accept that the appellant has offered a reasonable explanation for hisfifth conviction—relating to a concern for his son's wellbeing. Instead, I adopt aneight month starting point for the appellant's sixth conviction and four months for thefifth conviction, a total starting point of 12 months.[33] The appellant and respondent are in agreement that no uplift is necessary fromthe starting point to reflect the manner of driving and previous offending by theappellant. I, too, am satisfied that the charges appropriately take into account themanner of the appellant's driving and his previous offending. Therefore, a startingpoint of 12 months is appropriate without the six-month uplift imposed by thesentencing Judge and is consistent with the helpful review of authorities found inJonathan v Police.20[34] The three month uplift for breaches of community work (approximately145 hours left uncompleted) and community detention conditions is similar to thetwo month sentence substituted for 150 hours of uncompleted community work inR v Morgan.21 The additional month, in comparison with Morgan, reflects the16 Jenkins v Police [2018] NZHC 2055.17 At [20].18 Jonathan v Police [2019] NZHC 1115.19 At [16].20 Jonathan v Police, above n 18, at [14].21 R v Morgan, above n 13.appellant's non-compliance with community detention (failing to return to prescribedaddress on 18 occasions). I do not agree with the respondent's submission thatbreaches of community detention and community work should result in two separateuplifts, of three and two months respectively. A three month total uplift for breachesof both parts of one sentence is appropriate.[35] Finally, I consider the discounts available to the appellant for his guilty pleas,remorse and difficult circumstances surrounding the offending. A discount ofnine months was given by the sentencing Judge. There is no error in the sentencingJudge's determination of a discount. Accordingly, I adopt it in relation the new startingpoint I have determined.[36] The resulting calculation is as follows: 12 months starting point, uplifted bythree months for breaches of community-based sentences, and discounted byfive months (the same proportion as in the District Court). The end result is a sentenceof 10 months' imprisonment. I note that the appellant has served five months of thissentence at the date of hearing.[37] Now that the final term of imprisonment is less than 12 months, the impositionof release conditions becomes discretionary.22 Standard conditions must be directedto, and be no more than is required to protect, the safety of the community.23 I amsatisfied that no release conditions need to be imposed in this case. Mr Bishop-Listeris already subject to a driving disqualification for 18 months. Since his offending wasdriving-related, the disqualification will adequately manage the risk of re-offendingand facilitate rehabilitation.Period of driving disqualification[38] The minimum period of disqualification to be imposed was 18 months.Mr Hannam submits that I can approach this either on the basis that the sentence wasmanifestly excessive or by applying s 81 of the Land Transport Act. Section 81 mightpotentially have some application to the first charge of driving while disqualified22 Sentencing Act 2002, s 93.23 Latham-Johnstone v Department of Corrections [2014] NZHC 2451 at [17].(given the family circumstances that the appellant says – and the Judge accepted –precipitated that occasion). However, the second incident plainly does not comewithin s 81.[39] I prefer to approach it on the basis that the total period of disqualification isexcessive in the particular circumstances. As Mr Bourke helpfully clarified, thedisqualifications for the driving while disqualified offences on 25 June 2021 and27 August 2021 could be imposed concurrently, rather than cumulatively, as it appearsthe Judge did. The disqualification for failure to stop for red/blue lights on27 August 2021 must, however, be cumulative. I am satisfied that disqualificationfrom driving for a total of eighteen months is appropriate.Leave to apply for home detention[40] I would have granted leave to apply for home detention. Refusal to grant leaveis akin to a further penalty imposed on the appellant for failure to comply with theoriginal community-based sentence, contrary to the Court's role when re-sentencing,as emphasised by the Court of Appeal in Morgan v R.24 A sentence of imprisonmentfor a not insignificant term without leave to apply for home detention would only havebeen imposed for driving offences and a charge of assault in rare circumstances. Theappellant's initial offending warranted a sentence of community work and communitydetention. In my view, to substitute a sentence of imprisonment without leave to applyfor home detention is disproportionate. As Mr Hannam emphasised, all that is soughtis leave to apply. If he chooses to do so, Mr Bishop-Lester will need to persuade theCourt that the address and occupants proffered are suitable and that he will complywith the conditions of home detention. Accordingly, I uphold this aspect of the appealand Mr Bishop-Lister has leave to apply for home detention.Conclusion[41] The appeal against sentence is allowed. A sentence of 10 months'imprisonment with no release conditions is substituted.24 Morgan v R, above n 13.[42] The appeal against the period of driving disqualification is allowed and aperiod of eighteen months' disqualification is substituted.[43] The appeal against refusal to grant leave to apply for home detention isallowed.Gwyn JSolicitors:Hannam & Co. Lawyers Ltd, New PlymouthC & M Legal, New Plymouth