GRAY v NEW ZEALAND POLICE [2018] NZHC 103

GRAY v NEW ZEALAND POLICE [2018] NZHC 103 [12 February 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-000042[2018] NZHC 103BETWEEN LEONARD GRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 7 February 2018Appearances: D W Hart for AppellantM B Smith for RespondentJudgment: 12 February 2018JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 12 February 2018 at11.00amPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:D W Hart, WhangareiCrown Solicitor, WhangareiIntroduction[1] The appellant, Mr Gray, appeals a sentence of two years and two months'imprisonment imposed on him by Judge N R Dawson in the District Court atDargaville on 6 September 2017.1[2] The sentence was imposed after Mr Gray had entered guilty pleas to thefollowing charges:(a) Driving while disqualified (third or subsequent offence) x 2;2(b) Receiving (property valued at over $1,000);3(c) Reckless driving;4(d) Failing to stop;5(e) Failing to stop to ascertain injury;6(f) Possession of an instrument for conversion;7 and(g) Breach of community work.8[3] Mr Gray argues that the sentence imposed is manifestly excessive.1 Police v Gray [2017] NZDC 19980.2 Land Transport Act 1998, s 32(1)(a). As per s 32(4), the maximum penalty is imprisonment for aterm not exceeding two years or a fine not exceeding $6,000. The court must also order the personto be disqualified from holding or obtaining a driver licence for one year or more.3 Crimes Act 1961, s 246(1). As per s 247(a), the maximum penalty is imprisonment for a term notexceeding seven years.4 Land Transport Act, s 35(1)(a). As per s 35(2), the maximum penalty is imprisonment for a termnot exceeding three months or a fine not exceeding $4,500. The court must also order the personto be disqualified from holding or obtaining a driver licence for six months or more.5 Land Transport Act, s 52(1)(c). As per s 52(2), the maximum penalty is a fine not exceeding$10,000.6 Land Transport Act, s 36(1)(c). As per s 36(2), the maximum penalty is imprisonment for a termnot exceeding five years or a fine not exceeding $20,000. The court must also order the person tobe disqualified from holding or obtaining a driver licence for one year or more.7 Crimes Act, s 227. The maximum penalty is imprisonment for a term not exceeding one year.8 Sentencing Act 2002, s 71(1)(a). The maximum penalty is a term of imprisonment not exceedingthree months or a fine not exceeding $1,000.Factual background[4] On 15 March 2017, Mr Gray was convicted and sentenced in the DargavilleDistrict Court for driving whilst disqualified. He was further disqualified for a periodof six months.[5] This disqualification notwithstanding, the following day Mr Gray was pulledover by the police while he was driving.[6] Some two and a half months later, Mr Gray offended again. Between Saturday3 June 2017 and Sunday 4 June 2017, a Mazda motor vehicle was stolen from anaddress in Greenlane, Auckland. On 5 June 2017 at 3.38 am, Mr Gray was observeddriving the stolen vehicle in central Auckland. Police officers attempted to stop MrGray. They activated the police vehicle's red and blue flashing lights and siren. MrGray did not stop. Rather, he led the police on a pursuit through suburban streets inParnell, Newmarket and Greenlane. During the pursuit Mr Gray reached speeds of upto twice the posted speed limit. He travelled through red light signals.[7] The pursuit came to an end when Mr Gray crashed into another vehicle. MrGray did not stop to ascertain whether or not the driver of the vehicle he crashed intohad suffered injury. The driver of the other vehicle was injured and he was taken tohospital. He sustained minor neck injuries and consequent head pain. The damagecaused to the vehicles was significant.[8] Following the crash, Mr Gray attempted to flee on foot. He was subsequentlylocated and arrested.[9] A search of the stolen vehicle by the police revealed that its ignition barrel hadbeen forcibly removed. The police found a flathead screwdriver in the foot well of thedriver's seat. This type of tool is commonly used for the conversion of motor vehicles.[10] When Mr Gray was spoken to by the police, he stated that he had not stolenthe vehicle, but rather that he had received it from a friend knowing that it had beenstolen. When he was asked about the screwdriver, he said that he had got thescrewdriver from the friend, and that he had used it to start the car. He also acceptedthat he knew that he was disqualified from driving at the time. When he was askedwhy he had failed to stop when the police activated their red and blue flashing lightsand siren, why he had driven recklessly and why he had failed to stop following thecrash to ascertain whether or not any injury had been caused to the driver of the othervehicle, Mr Gray stated that he was sorry about the crash. He acknowledged that heshould have stopped for the police initially.[11] Finally, on 17 June 2017, Mr Gray breached the conditions attaching to acommunity work order he was subject to at the time.District Court decision[12] After setting out the relevant factual background, and discussing the principlesand purposes of sentencing, Judge Dawson identified the lead offending as follows:[15] In my view, the lead offences for which you are being convicted todayare those committed on 3 and 5 June 2017. Those are the receivingcharges and the driving. Your failing to stop charge is a fine onlymatter, but however I regard that as an aggravating feature to yourdriving recklessly.[13] The Judge then proceeded to set a starting point of two years' imprisonmentfor the lead offences identified by him. He then uplifted this starting point by sixmonths to reflect the concurrent offending that occurred on the same dates. He thenfurther uplifted the sentence by a further six months to reflect "all the other offending",resulting in an overall starting point of three years' imprisonment.9 The Judge reducedthe sentence by nine months (or 25 per cent) to take account of Mr Gray's guilty pleas,and then a further month, to acknowledge the remorse that Mr Gray had expressed.10[14] Judge Dawson sentenced Mr Gray to a finite sentence of two years and twomonths' imprisonment for the charge of failing to stop to ascertain whether there wasan injury. He cancelled Mr Gray's community work order, and remitted outstandingfines owed by Mr Gray totalling $3,754.80. He did not make a reparation order, andMr Gray had no ability to make any payment. The sentence for each charge was asfollows:119 At [17].10 At [18].11 At [20]-[22].(a) Driving while disqualified (third or subsequent offence) – six months'imprisonment and disqualified from holding or obtaining a driver'slicence for 12 months from 15 October 2017.(b) Driving while disqualified (third or subsequent offence) – six months'imprisonment and disqualified from holding or obtaining a driver'slicence for 12 months from 15 October 2018.(c) Receiving (property valued at over $1,000) – one year's imprisonment.(d) Reckless driving – one month's imprisonment.(e) Failing to stop – convicted and discharged.(f) Failing to stop to ascertain injury – two years and two months'imprisonment.(g) Possession of an instrument for conversion – one month'simprisonment.(h) Breach of community work – one month's imprisonment.All sentences of imprisonment were to be served concurrently.Submissions[15] Mr Hart, appearing on behalf of Mr Gray, argued that Judge Dawson erred indealing globally with all of the 3 to 5 June 2017 offending, and in setting a startingpoint on that basis. He argued that this resulted in a manifestly excessive end sentence.He submitted that the lead offences – at least when considering the protection of thecommunity – were the two offences of driving while disqualified. He noted that themaximum penalty for each of those offences was one of two years' imprisonment, ora fine not exceeding $6,000. He put it to me that the Judge lost sight of the need toimpose the least restrictive sentence available, that a short-term sentence should havebeen imposed and that this should have been commuted to a sentence of homedetention.[16] Mr Smith, for the Crown, did not seek to defend the approach taken to thesentencing undertaken by Judge Dawson. He did, however, suggest that it wasconceptually wrong to work backwards, and endeavour to construct a sentence whichwould have made possible a sentence of home detention. He accepted that the endsentence could have been constructed in another – and perhaps preferable way – butargued that it could not be said that the end sentence was manifestly excessive, givenMr Gray's contumacious and repeated disregard of court orders.Appeals against sentence[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the court mustallow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.In any other case, the court must dismiss the appeal.12[18] A sentence may be set aside where it is manifestly excessive.13 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached. The court will not intervene where the sentence iswithin range. But, if the court determines the sentence is manifestly excessive, it willform its own view of the appropriate sentence.14Analysis[19] The approach taken by Judge Dawson is unorthodox and, in some respects,difficult to follow. As noted above, the Judge treated all the offending committed on3 and 5 June 2017 as lead offences, and stated that he was adopting his initial startingpoint for these lead offences. He then however imposed a final sentence of two yearsand two months on the charge of failing to stop to ascertain injury, and imposedconcurrent and lesser sentences on each of the other offences. Further the Judge did12 Section 250(3).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].14 Tutakangahau v R, above n 18, at [30].not refer to any case law when he set his initial starting point of two years'imprisonment for the 3 to 5 June offending. He uplifted that starting point by sixmonths to reflect what he referred to as the concurrent offending that occurred on thesame dates. The only other offence committed on those dates was the possession ofan instrument for conversion, and it seems that the Judge uplifted the initial startingpoint by a further six months to reflect that charge. He then further uplifted thesentence by six months to reflect the other charges. Those appear to be the initialdriving while disqualified (third or subsequent offence) charge, and the breach ofcommunity work charge. No totality assessment was undertaken by the Judge.[20] Despite these difficulties, I remind myself that whether a sentence is manifestlyexcessive depends on the end sentence reached, and not the process by which thesentencing was undertaken.[21] In this case, I have concluded that the end sentence reached was manifestlyexcessive.[22] I consider that the charge of failing to stop to ascertain injury was the leadoffence. The maximum penalty for that offence is a term of imprisonment notexceeding five years, or a fine not exceeding $20,000. The Court must also order thatthe offender be disqualified from holding or obtaining a driver's licence for one yearor more. There is no tariff case for this type of offending, although I note that GendallJ has commented that "the seriousness of this charge has commonly attractedsentences of home detention and imprisonment".15[23] Notwithstanding this observation, it is clear from other authorities that startingpoints of up to 18 months' imprisonment can be appropriate. For example, in Bryantv Police,16 the appellant pleaded guilty to one charge of dangerous driving, and onecharge of failing to stop to ascertain injury. He was driving home in an intoxicatedstate, and he drove head on into a car driven by the victim. He initially stopped andspoke to the victim, but then drove away. The sentencing Judge in the District Courtadopted a starting point of 18 months' imprisonment on each charge. On appeal,15 Kingsley v Police [2016] NZHC 1304 at [27].16 Bryant v Police HC Blenheim CRI-2011-406-20, 5 December 2011 at [15] and [18].Miller J upheld the starting points, albeit that for other reasons, he imposed a sentencefor home detention. Similarly, in Dalliessi v Police,17 a starting point of 18 months'imprisonment was upheld on appeal for this charge. In that case the appellant pleadedguilty to one charge of dangerous driving, one charge of failing to stop to ascertaininjury and one charge of assault. The District Court Judge adopted the failing to stopto ascertain injury charge as the lead offence, and fixed a starting point of 18 months'imprisonment for this charge. He uplifted it by a further three months to reflect theassault charge. On appeal, Panckhurst J upheld the starting point adopted by theDistrict Court Judge, albeit that he reduced the sentence to home detention given theappellant's rehabilitative prospects.18 In Samuels v Police,19 the appellant was foundguilty of one charge of dangerous driving and one charge of failing to stop to ascertaininjury. He was sentenced in the District Court to two years' imprisonment, anddisqualified from driving for three years. Cooper J dismissed the appellant's appealagainst sentence.[24] I prefer these authorities to the authority principally relied on by the appellant,namely Te Huia v Police.20 In my view, given Mr Gray's record and his contumaciousdisregard of Court orders, the sentence there imposed of eight months for offendingsimilar to that committed by Mr Gray would not have been appropriate in this case. Inote that Mr Hart did not suggest that the sentence should have been in this range. Hesuggested that the appropriate sentence should be two years.[25] In my judgment, Mr Gray's offending is less serious than that involved inBryant, Dalliessi and Samuels. Mr Gray did not, for example, refuse a request fromthe victim to call an ambulance as in Bryant. There was no direct contact between thevehicle being driven by Mr Gray and the victim as in Dalliessi and Samuels. It seemsfrom the victim impact statement that the driver of the other vehicle was not seriouslyinjured. Nevertheless, there was still significant potential for injury. There was aserious crash and Mr Gray made no attempt to stop to ascertain whether or not thevictim was injured. Rather, he put his own interests above those of the victim and17 Dalliessi v Police [2014] NZHC 1136.18 At [17].19 Samuels v Police HC Whangarei CRI-2005-488-29, 8 June 2005.20 Te Huia v Police [2000] NZHC 295.endeavoured to flee the police, this time on foot. I would adopt a starting point of 15months for the charge of failing to stop to ascertain injury.[26] I would uplift that starting point by six months, to take into account thereceiving charge, the reckless driving charge, the failure to stop charge, the possessionof an instrument for conversion and the second driving while disqualified (third orsubsequent offence) charge. All of this offending was contemporaneous with thefailing to stop to ascertain injury charge, and can properly be seen as part of aconnected series of offences. It has had an impact on others, in particular, the ownerof the stolen vehicle and the owner of the other vehicle Mr Gray crashed into. I wouldthen further uplift this starting point by three months for the other driving whiledisqualified charge, and one month for the breach of community work charge, both ofwhich were unconnected in time and circumstance.[27] That would take my total starting point to one of 25 months.[28] Given Mr Gray's disregard for Court-imposed orders, and the serious nature ofhis offending, I do not consider that the totality principle is offended by this startingpoint.[29] There is no dispute that Mr Gray promptly entered guilty pleas and that he isentitled to a discount of 25 per cent to recognise those pleas. There was also nochallenge to the Judge allowing Mr Gray a discount of one month for his remorse.[30] I would have imposed an end sentence of 18 months. Accordingly, it followsthat I consider that the sentence imposed by the Judge was manifestly excessive.[31] The appeal is allowed. The existing orders made by Judge Dawson are setaside and the following sentences are imposed:(a) On the charge of failing to stop to ascertain injury – 18 months'imprisonment.(b) On each of two the charges of driving while disqualified (third orsubsequent offence) – three months' imprisonment.(c) On the charge of receiving – one year's imprisonment.(d) On the charge of failing to stop – conviction and discharge.(e) On the charge of possession of an instrument for conversion – onemonth's imprisonment.(f) On the charge of breach of community work order – one month'simprisonment.All of the sentences are to be served concurrently.[32] There was no challenge to the disqualifications put in place by the Judge. Inrelation to the charge of driving while disqualified (third or subsequent offence), whichoccurred on 16 March 2017, Mr Gray is disqualified from holding or obtaining adriver's licence for 12 months from 15 October 2017. On the second charge of drivingwhile disqualified (third or subsequent offence), Mr Gray is further disqualified fromholding or obtaining a driver's licence for a further 12 months from 15 October 2018.[33] The community work sentence is cancelled, and Mr Gray's existing fines of$3,754.80 are remitted. I agree with the Judge that this is appropriate, and it will giveMr Gray the opportunity to start with a clean slate when he comes out of prison.[34] I record that Mr Hart did not seek a sentence of home detention. Mr Gray hasbeen in custody for some time. He either now is, or shortly will be, eligible for parole,given the reductions in sentence which I have imposed._________________________________Wylie J