BARWELL v NEW ZEALAND POLICE [2019] NZHC 2071

BARWELL v NEW ZEALAND POLICE [2019] NZHC 2071 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI 2019-409-0086[2019] NZHC 2071BETWEEN KANE JAMES BARWELLAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2019Appearances: C Eason for the AppellantJ Whitcombe for the RespondentJudgment: 22 August 2019ORAL JUDGMENT OF JAGOSE JThe judgment was delivered by me on 22 August 2019.Registrar/Deputy RegistrarCounsel/Solicitors:C Eason, Barrister, ChristchurchRaymond Donnelly & Co[1] Kane Barwell appeals his sentence of two years and nine months'imprisonment, imposed by Judge A D Garland in the District Court at Christchurch on4 June 2019.1 The sentence related to four discrete driving offences in January andFebruary 2019, all for recidivist driving while disqualified,2 and associated offending.3He appeals the sentence as in arithmetical error, manifestly excessive, andinappropriately custodial.Background[2] Mr Barwell was disqualified from driving for twelve months from 16 April2018. He was stopped by police while driving early in the morning of 20 January 2019.Two days later – early in the morning of 22 January 2019, driving a car nearly a yearout of warrant – he drove away from police signalling him to stop. He drove througha red light, at speeds seriously exceeding the 50 km/h limit, on the wrong side of theroad towards oncoming traffic, and with the car's lights off. The police abandonedpursuit, later stopping his car by laying spikes in his path. A week later, late morningon 29 January 2019, Mr Barwell was again stopped by police. After appearing in Courton 21 February 2019, and being granted bail with a condition not to drive, he was yetagain stopped in the late afternoon.[3] Judge Garland identified Mr Barwell's extreme and escalating recidivism,presenting serious risk of harm to the public, in what would be his fourteenthconviction for driving while disqualified, among nearly 60 convictions since 2011.The Judge took the 22 January 2019 offending as the lead charge, imposing themaximum two-year term of imprisonment. He uplifted that by six months, to reflectthe totality of the driving while disqualified charges. He applied a further twelvemonths to reflect Mr Barwell's aggravating history, his thirteen prior driving whiledisqualified convictions including 18 months' imprisonment on 23 August 2017. Heapplied a ten-month discount for Mr Barwell's guilty pleas, and sentenced Mr Barwellto two years and nine months' imprisonment.1 Police v Barwell [2019] NZDC 10732.2 Land Transport Act 1998, s 32(1)(a) and (4): maximum two years' imprisonment.3 Operation of vehicle on a road without displaying current evidence of vehicle inspection (LandTransport Act 1998, s 34(1)(b): maximum $2,000 fine); dangerous driving (Land Transport Act1998, s 35(1)(b): maximum three months' imprisonment); failure to stop when required byenforcement officer (Land Transport Act 1998, s 52A(1)(a)(ii): maximum $10,000 fine).Issues on appeal[4] Mr Barwell's counsel, Colin Eason, says the Judge's calculations should havearrived at two years and eight months' imprisonment. He says the Judge did not givedue consideration to a non-custodial sentence, and disputes the Judge's twelve-monthuplift was permissible.Approach to appeals against sentence[5] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.4 In any other case, I mustdismiss the appeal.5 The approach previously taken by courts on sentencing appealscontinues to apply;6 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentencing appeals.7 I willnot intervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.8Discussion[6] There is no dispute the Judge's mathematical error should be corrected: 24 + 6+ 12 – 10 = 32, or two years and eight months' imprisonment, not two years and ninemonths.9 I will make that correction accordingly.[7] I disagree the Judge disregarded the prospect of a non-custodial sentence. Heidentified the PAC recommendation for a supervisory and community sentence, butalso observed Mr Barwell's non-compliance with conditions, inherent in the drivingwhile disqualified charges. Mr Barwell's counsel sought home detention – that is, thesame as Ms Penman before Judge Garland sought home detention – "again". It is notwithout note Mr Barwell's compliance with conditions ceased after that sentence. Andthe file also includes a charge of breach of a 200-hours' community work sentence4 Criminal Procedure Act 2011, s 250(2).5 Section 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].7 At [33] and [35].8 Ripia v R [2011] NZCA 101 at [15].9 Ferris-Bromley v R [2017] NZCA 115 at [15(a)].imposed on 10 July 2018 for earlier driving while disqualified charges. As I willdiscuss in a moment, escalating sentencing for recidivist driving while disqualified "isessential to the maintenance of the integrity of the system".10[8] Whether the Judge's twelve-month uplift is impermissibly "disproportionate"in the sense referred to in Tamihana v R is to be assessed not in isolation, but from theperspective of any 'manifest excess' in the end-sentence.11 The Judge took theorthodox approach in sentencing Mr Barwell: an offence-specific starting point,uplifted for personal aggravating factors, including previous offending. But thepreferred approach is to set a starting point with reference to escalating driving whiledisqualified offending, and uplifting for additional charges (not as personalaggravating factors): "the need to set a higher starting point derives from the repetitionof the prohibited driving".12[9] In Morell v Police, the appellant's eleventh driving while disqualifiedconviction attracted an eighteen-month starting point (uplifted by three months fordangerous driving).13 In Whitely v Police, uplifts of four months for each sixth andseventh convictions were applied in sentencing on the eighth.14 In Apiata v Police,uplifts of six months for each eighteenth to twenty-first convictions were applied insentencing on the twenty-second.15[10] Thus Mr Barwell's 22 January 2019 fifteenth driving while disqualifiedoffending comparatively might attract, say, a 21-month starting point, uplifted by threemonths for the dangerous driving charge. His fourteenth, sixteenth, and seventeenthdriving while disqualified offending each might attract four to six-month uplifts. Thatresults in a final sentence of 36 to 42 months, discounted to 27 to 32 months for earlyguilty pleas. While Judge Garland's sentence exactly is at the top of that range, itcannot be said manifestly excessive.10 R v Butterfield CA100/97, 23 July 1997 at 5.11 Tamihana v R [2015] NZCA 169 at [28].12 Jenkins v Police [2018] NZHC 2055 at [15]–[16], citing Sykes v Police [2014] NZHC 2642 at[10].13 Morrell v Police [2014] NZHC 856.14 Whitley v Police [2016] NZHC 1025.15 Apiata v Police [2016] NZHC 3119.Result[11] I correct Mr Barwell's sentence from two years and nine months'imprisonment to two years and eight months. The appeal otherwise is dismissed.—Jagose J