GIFKINS v POLICE [2017] NZHC 1399

GIFKINS v POLICE [2017] NZHC 1399 [22 June 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2017-443-010[2017] NZHC 1399BETWEEN DAMIEN JOHN GIFKINSAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2017 (via AVL)Counsel: M S Boyd for AppellantJ E Bourke for RespondentJudgment: 22 June 2017JUDGMENT OF SIMON FRANCE J[1] Mr Gifkins appeals a sentence of 12 months' imprisonment and 25 months'disqualification from driving.1 He seeks reduction in the length of each term, and substitution of a sentence of home detention.Facts[2] There were nine charges in total arising from four separate occasions. Mr Gifkins pleaded guilty at various stages to all charges.[3] On 16 August 2016, Mr Gifkins was a passenger in a vehicle driven by his then partner. He became angry with her and punched her in the left eye while she was driving. He also pulled off the rear mirror and threw it outside. The resultant charges were assault and wilful damage.1 New Zealand Police v Gifkins [2017] NZDC 8373.[4] Next on 14 October 2016 Mr Gifkins was driving, although his licence had been suspended due to an accumulation of demerit points. The vehicle was stopped at a checkpoint. When asked to produce his licence, Mr Gifkins sped off. A chase ensued. Through various speed zones Mr Gifkins raced away in an effort to avoid police pursuit. He was well over the speed limit at each point, at times reaching 130 kph in a 60 kph zone, and 90 kph in a 50 kph area. Tyre deflation devices eventually brought an end to it all, although for a period Mr Gifkins drove at 80 kph on only one good tyre. This led to charges of driving while suspended (third and subsequent), failing to stop (x2) and dangerous driving.[5] Still in October 2016, Mr Gifkins breached a protection order relating to an earlier partner. He sent a message seeking consent to the protection order being quashed, and then separately an old photograph of them as a couple. This led to a charge of contravening a protection order.[6] Finally on 13 March 2017 Mr Gifkins became annoyed with his then partner (a different partner from the incident in August 2016) and assaulted her. He grabbed her by the hair and threw her to the ground. A large chunk of hair was removed. This incident had followed the destruction of a TV set. As in August 2016, the charges were assault and wilful damage.Offender[7] Mr Gifkins is 31 years old. He has 35 prior convictions. This was his fifth conviction for driving while disqualified/suspended. The preceding one of those had been in 2007. Mr Gifkins had been once previously sentenced to home detention, a sentence which resulted in two convictions for breach of the conditions, and two for breach of the post detention convictions.[8] At the time of sentencing Mr Gifkins had work as a courier driver. There was no other personal information provided. It appears he had been flatting with a family.[9] The report writer concluded Mr Gifkins showed no remorse, and tended to blame the victims. At least to the report writer, he denied dangerous driving or speeding, but he did plead guilty to them, and the objective facts and presumably numerous witnesses to the driving incident leave little scope for denial.[10] Electronic monitoring options were considered. The occupants of the proffered address did not consent. The day before the report was finalised, being four days before sentencing, Mr Gifkins proffered a further address which could not be assessed in time. In any event, the Department of Corrections opposed suitability for an electronically monitored sentence due to compliance issues with previous sentences, and the domestic violence charges being faced. The report noted that Mr Gifkins had previously been linked to 27 domestic violence alerts, although detail was not provided.[11] Child, Youth and Family indicated general concerns that meant a safety assessment and safety plan would be required if children were to be present at any approved address.Sentencing[12] The sentencing process was not optimal.[13] Mr Gifkins pleaded to some charges in December 2016 and was remanded for sentence. Then on 2 February 2017 Mr Gifkins pleaded guilty to the August assault and intentional damage. This followed an amendment of the charge down from male assaults female, and a sentence indication. However, the Judge must then have become aware there were other charges and the whole matter was instead adjourned to the New Plymouth District Court for sentence. The sentence indication never took effect but there was a plea consequent on it.[14] On 20 April 2017 Mr Gifkins appeared for sentence. He had new counsel who had only been instructed the day before because previous counsel had become unavailable. An adjournment was sought but the Judge wished to proceed so instead stood the matter down until the afternoon. New counsel (not Ms Boyd) was given copy of the materials already filed to read in the interim. It is not clear if theadjournment application was expressly declined, but sentencing proceeded in the afternoon.[15] The Judge took a starting point of 13 months for the driving incident, being 10 months' for driving while disqualified and a three month uplift for the balance of the driving offences. There was then a single six month uplift covering both assault/wilful damage incidents, meaning a total of 19 months. One month was then added for the breach of the protection order, before an overall totality adjustment took the starting point down to 15 months. Then there was an uplift for previous driving offences for one month leaving a final figure, before deductions, of 16months' imprisonment. There was then a 25 per cent deduction for guilty pleas, leaving the final sentence at 12 months' imprisonment.[16] The Judge observed, without elaboration, that "home detention is not an option available to you".2[17] A total disqualification from driving period of 25 months was also imposed. This reflected three separate periods:(a) 13 months for the driving while disqualified charges;(b) six months for the dangerous driving (served concurrently); and(c) 12 months for the two failure to stop charges (served cumulatively).Grounds of appeal[18] On appeal it is submitted that:(a) the starting point was too high; and(b) the process miscarried because the sentencing was not adjourned. This meant information was not before the Judge which should have been.2 Gifkins, above n 1, at [14].[19] Mr Gifkins seeks a sentence of home detention and a reduction in the disqualification period to 15 months.[20] Mr Gifkins has filed an affidavit. He expresses concerns that the sentencing Judge described him as a danger to women and one who showed no remorse. It is said these comments reflect the lack of information that would otherwise have been before the Judge had sentencing been adjourned. Mr Gifkins explains:(a) since 2015 he had been on drugs for ADHD. He did not realise these had made him aggressive, but he has now stopped the medication;(b) he initiated contact with a counsellor at Women's Refuge. He hadattended two sessions prior to being jailed at sentencing; and(c) he is committed to change.[21] There is no suitable home detention proffered so this aspect of the appeal is best addressed as an application for leave to apply for home detention pursuant to s 80I of the Sentencing Act 2002.[22] During the hearing of the appeal, Ms Boyd made an oral application to withdraw the pleas of guilty in relation to the August 2016 assault and wilful damage. The plea had been entered on the basis of the February sentence indication which was then overtaken by the larger exercise. Mr Gifkins should have been offered the opportunity to withdraw his pleas. Although that was not requested at sentence, I accept the opportunity should have been afforded to him.3 Accordingly, the oral application (not opposed) is allowed and the convictions for assault and wilful damage occurring on 16 August are quashed. A retrial is directed.3 It may not have been apparent to the sentencing Judge that these pleas were consequent on a sentencing indication.Decision[23] As has often been observed, the key issue is whether the end point is an available sentence. Before analysing each link in the sentencing chain, I make two observations that pose formidable obstacles to the appeal. First, with the now removal of the original August offending, all the offending left to be considered occurred while Mr Gifkins was on bail. That is a significant aggravating feature that was not considered. Second, the analysis of the correctness of each link in the sentence is inevitably affected by the five month totality adjustment. In relation to what was a starting point of 20 months, there was a 25 per cent totality reduction meaning any excess in any of the links has already been adjusted.[24] The first consideration is the driving offending. Relevant to that areallocations of 10 months' imprisonment for driving while suspended, three months'for the other offences and a one month uplift for previous disqualified driving convictions. It is well recognised with the offence of driving while suspended third and subsequent that the existence of earlier convictions can be factored into the starting point or be dealt with by way of an uplift. What is important is to avoid double counting, and also to recognise that the offence of third and subsequent already has an enhanced maximum penalty because of two previous convictions.[25] I do not consider an uplift was needed here. Although a fifth offence, it was 10 years since the previous offence of this type and the elevated penalty range for third and subsequent adequately captured this aspect.[26] For the driving offending overall the starting point was 14 months. As to whether that was available, Harre v New Zealand Police is of some assistance.4There a disqualified driver encountered a checkpoint, spoke to an officer and then sped off. A pursuit ensued. Speeds were up to 60 kph above the speed limit. The driving was in a suburban area. This was Mr Harre's seventh driving while disqualified offence. As regards that complete package Lang J considered 15months' imprisonment to be within range.5 Here it appears Mr Gifkins' driving was4 Harre v New Zealand Police [2013] NZHC 1740.5 At [6].at least as bad, and Harre accordingly provides support for the proposition that the starting point was within range.[27] Before me there was considerable focus on the 10 month starting point for a fifth conviction of driving while suspended or disqualified. Ms Boyd draws support for the proposition it is too long from Opetaia v New Zealand Police.6 There, on charges of driving while disqualified with no aggravating features, the offender was being sentenced for her fifth to eighth such offence. Moore J, having reviewedvarious authorities, described a starting point of 10 months' for the first of the offences (the offender's fifth driving while disqualified offence) as stern and at theupper end of the available range. It was, however, within the available range at theJudge's discretion.[28] In Apiata v New Zealand Police Clifford J noted Moore J's analysis andadded to it by appending a table of relevant decisions and their outcomes.7 It is difficult to see in that table support for the present appeal. Indeed, arguably it suggests that the Opetaia observation that 10 months' is the top of the range is open to contest.[29] The three month uplift here is stern given that the maximum penalties for each of the other three offences was only three months. However, the danger to the public in these situations is acute. Overall I consider a 14 month starting point for the driving offending was towards the top of the available range but available. For appeal purposes, that assessment is then subject to the significant totality adjustment the Judge made.[30] The next component of the sentence to be challenged is the one month uplift for breach of a protection order. Standing alone it is submitted it is a breach that would not attract a jail sentence. I accept that is so. It is a first breach by Mr Gifkins of an order that has been in place for some time. In terms of the types of conduct that constitute a breach, it was at the lower end of the spectrum. It did not merit a specific uplift.6 Opetaia v New Zealand Police [2015] NZHC 2532 at [19].7 Apiata v New Zealand Police [2016] NZHC 3119, applied in Fox v New Zealand Police [2017] NZHC 573 at [6].[31] The final component is the six month uplift for the two occasions of domestic violence involving an assault and wilful damage. Given that the offending involved a similar course of conduct in relation to two separate partners, with the second incident being a more severe type of assault, I consider six months was an available uplift.[32] That uplift now needs adjusting because of quashing the August 2016 convictions. The uplift now addresses only one set of assault and wilful damage charges. Making an adjustment is complicated by my view that the breach of protection order uplift should not have occurred but also by the existence of the totality adjustment. I deal with this by simply reducing the existing final sentence by one month to 11 months' imprisonment.[33] Finally, I note that the Judge when initially fixing sentences applied the six month uplift figure as the actual final sentence for the two assaults and the two wilful damages. The latter was an error as the maximum penalty for these wilful damage charges is three months. Some adjustment has subsequently been made as Mr Gifkins record now shows the sentence to be three months, the maximum. Although it makes no difference to the outcome, it is a misleading figure for the future and I intend to adjust it to one month. The same equally applies to what is recorded as a six month sentence for the breach of a protection order. That is an inappropriate figure to be attached to Mr Gifkins breach. I recognise close attention is often not applied to lesser concurrent sentences, but it still remains important to ensure the record reasonably reflects the culpability involved. For similar reasons there will need to be an adjustment to the concurrent assault sentence.Home detention[34] The Judge gave no reason why home detention was not an option for Mr Gifkins. Accordingly I look at the matter afresh.[35] Mr Gifkins is 31 years old and has not previously been to jail. He was in employment although the reality of the driving disqualification will threaten that.[36] If I was doing the original sentencing, I would not have been satisfied that a sentence of home detention would adequately meet the need for individual deterrence. The case against home detention is that:(a) Mr Gifkins was previously sentenced to home detention and four breaches resulted from it;(b) all the present offending occurred while on bail;(c) the record suggests two other bail breaches throughout that time; and(d) the continued breach of driving bans displays a similar lack of care about the consequences of his offending.[37] The situation has changed somewhat by the time of the appeal. There is the evidence about the impact of medication, albeit I note it is a self assessment. There is also the confirmed evidence of Mr Gifkins that he has initiated counselling as regards his domestic violence. Again, however, there are somewhat mixed messages given his present application to withdraw guilty pleas, and his dispute with theJudge's assessment that he is a danger to women. The objective record says thatMr Gifkins is such a danger, something he otherwise seemed to accept (and seek credit for) by seeking counselling help.[38] I would have declined home detention because I consider personal deterrence and the need for Mr Gifkins to recognise the consequences of his continued offending and his defiance of court imposed sanctions was the paramount sentencing goal, and one which outweighed any other positive signs. However, Mr Gifkins has now spent time in jail, so if that message was needed, it has happened. Accordingly I propose to give Mr Gifkins leave to apply for home detention.[39] Time will tell whether Mr Gifkins recognises the path he is on will inevitably lead to more jail time unless he changes. The blunt reality, Mr Gifkins, is that there are too many bail breaches, too much offending on bail, too many breaches of conditions, too many occasions of ignoring driving limitations. These add up to aposition where it becomes difficult for a court to choose a less punitive response. That is why I say more jail is inevitable unless you change. It is over to you.[40] The application for leave to apply for home detention is granted.Disqualified driving[41] Concerning disqualification, there was some uncertainty as to the mandatory minimum period. It is clear it is 12 months for the driving while suspended charge. Concerning the failing to stop, and failing to remain stopped charges, s 52(5) of the Land Transport Act 1998 provides:(5) A disqualification ordered under subsection (3) or (4) is cumulative on, and not concurrent with, any other disqualification that a court may order in respect of the incident that gave rise to the person's conviction under section 114.[42] Both of Mr Gifkins' failing to stop charges fall with subs (3) or (4). In my view that means the minimum periods must be cumulative on each other as well as any other disqualification period. That means the minimum mandatory period here is 18 months disqualification. I note for completeness s 52(5) does not prevent other periods from being concurrent with each other. Here, for example, the six month period for dangerous driving was made concurrent with the 12 month period for driving while suspended. That is permissible; the effect of s 52(5) is that the failing to stop disqualification periods will be cumulative on the longest of the concurrent periods.[43] The Judge, without reasons, made the two failing to stop charges each 12 months (being four times the mandatory length) and concurrent with each other (being contrary to s 52(5)). I consider it preferable if I undertake the exercise afresh.[44] For a fifth driving while suspended charge the period of disqualification should be more than the minimum prescribed. Here that increase is tempered by the period that has passed since the prior offence, and I consider 14 months appropriate. Then there must be at least three months added to that for each of the failing to stop charges, which would mean an overall term of 20 months. However, I consider some extra penalty is needed for the dangerous driving. To avoid an overly longperiod, it is preferable to add that dangerous driving culpability onto the penalty for the failing to stop charges, whilst at the same time making the mandatory minimum period for dangerous driving a concurrent term.[45] The outcome I reach is:(a) 14 months' disqualification for the driving while suspended;(b) cumulative on that, and on each other, are terms of five months each for the two failing to stop charges. The five month terms each incorporate two months culpability for the dangerous driving;(c) six months' concurrent for the dangerous driving charge. This is made concurrent with the driving while suspended disqualification to avoid any double counting.Outcomes[46] The outcomes are:(a) the convictions for common assault, and wilful damage, both allegedly being committed on 16 August 2016 are quashed. A retrial is directed;(b) the sentence of one year imprisonment for driving while suspended isquashed and a sentence of 11 months' imprisonment substituted;(c) the sentence of six months' imprisonment for breach of a protectionorder is quashed. On that charge Mr Gifkins is convicted and discharged;(d) the sentence of six months for assault for the offence committed on 13 March 2017 is quashed and a sentence of three months'imprisonment substituted;(e) the sentence of three months' imprisonment for wilful damage (offence date 13 March 2017) is quashed and a sentence of one month imprisonment substituted;(f) the periods of disqualification are:(i) on the charge of driving while suspended 14 months;(ii) on the charge of failing to stop when followed a term of five months cumulative on the 14 months;(iii) on the charge of failing to remain stopped a term of five months cumulative on the charge of failing to stop;(iv) on the charge of dangerous driving a term of six months concurrent with the term of 14 months for driving while suspended.[47] All other sentences are unchanged.[48] The final effect is an operative term of 11 months' imprisonment and24 months' disqualification.[49] Mr Gifkins is given leave to apply to the District Court for home detention should a suitable address be available.8________________________Simon France J8 Sentencing Act 2002, s 80I.