GAVIGAN v NEW ZEALAND POLICE [2016] NZHC 1416

GAVIGAN v NEW ZEALAND POLICE [2016] NZHC 1416 [27 June 2016]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYCRI-2016-476-3[2016] NZHC 1416BETWEEN MANU APANUI GAVIGANAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2016Appearances: R Glover for AppellantM Beattie for RespondentJudgment: 27 June 2016JUDGMENT OF MANDER JIntroduction[1] Manu Gavigan has appealed his sentence of one year and two months imprisonment imposed in respect of a charge of refusing to permit a specimen of blood to be taken for the purposes of alcohol testing procedures.1 On a charge of failing to provide his full name and address upon request by police he was convicted and discharged.2BackgroundFactual background[2] On 19 July 2014 Mr Gavigan was driving a motor vehicle on Cranford Street in Christchurch when he was stopped by police for the purposes of breath testing. Upon being stopped he jumped into the back seat and claimed that he was not the1 Land Transport Act 1998, s 60(1)(a) and (3).2 Land Transport Act 1998, s 52(1)(c).driver. The police required the appellant to provide his name, address and other such details but he refused to do so. He underwent a breath alcohol procedure but refused an officers request for a blood sample.District Court sentencing[3] In imposing sentence, Judge Couch took a starting point of 10 months'imprisonment for the refusal to cooperate with the testing procedure.3 Mr Gavigan, at the time of the imposition of the prison sentence, had a very substantial amount of community work outstanding. The Judge approached that issue in the following terms:[9] In terms of s 78 Sentencing Act 2002, if I am going to impose a sentence of imprisonment short of 12 months, then I must make an order whether that community work is to be suspended simpliciter, that is cancelled, or whether it is to be suspended simply for the period of your detention. I have raised this issue with your counsel Mr Glover. He has submitted that the most appropriate course would be for it to be cancelled so that you might emerge from custody without a sentence hanging over you. I am prepared to agree to that course but in doing so I must take that into account in the length of sentence which I impose.[4] The Judge then proceeded to impose a sentence of one year and two months on the charge of failing to provide a specimen of blood. It was remarked that, because the sentence was more than 12 months, the sentence of community work would be automatically cancelled by operation of the Sentencing Act 2002 (the Act). It is apparent therefore, in the absence of any aggravating factors justifying an uplift in the starting point, that the four month increase was effectively in substitution of the outstanding community work.The appealGrounds of appeal[5] Mr Gavigan's appeal rested on a submission that it is unclear on what basis the additional four months' imprisonment was imposed, and that there was a lack of3 Police v Gavigan [2016] NZDC 7325.clarity in the identification of the constituent elements that made up the total term of14 months' imprisonment.The appeal procedure[6] The appeal was the subject of oral argument. The matter was left on the basis that Mr Glover would obtain further instructions from his client. That course was adopted because the conclusion was reached that while it was doubtful the sentencing Court could uplift the sentence for refusing to provide a blood specimen in lieu of the suspended community work, the District Court did have a power under s 68 of the Act to cancel a sentence of community work and substitute that sentence for imprisonment.[7] However, while Mr Glover sought instructions from Mr Gavigan, I had time to further reflect upon the sentencing and the provisions upon which Judge Couch relied. Having done so, it became apparent that the parties had proceeded upon incomplete information at the time of oral argument. I therefore issued a minutedetailing what I perceived to be an error in Judge Couch's sentencing approach andprovided the parties with an opportunity to be heard further.The 20 June minute[8] In my minute I set out the following:4[6] In increasing the sentence from 10 months to one of 14 months, it appears Judge Couch assumed the Act differentiated between the suspension of a sentence of imprisonment short of 12 months and the effect of a sentence greater than 12 months in terms of whether community work would be automatically cancelled by operation of s 78.[7] The importance of differentiating between a sentence of more than 12 months and a lesser term is that in the former situation the Court must either order the community-based sentence be suspended (s 78(2)(a)), or make an order that the community-based sentence be suspended for the duration of the period of imprisonment (s 78(2)(b)). Where the sentence is greater than 12 months, the community-based sentence is mandatorily suspended (s 78(7)).4 Gavigan v Police HC Timaru CRI-2016-476-3, 20 June 2016.[8] Under s 80, where the community-based sentence has been suspended pursuant to s 78(2)(a) or s 78(7), in the absence of the sentence of imprisonment being quashed, the community-based sentence will not resume after the offender ceases to be detained under the sentence of imprisonment. In such a situation it matters not whether the sentence of imprisonment is greater or less than 12 months.[9] It appears the sentencing Judge may have erred in his interpretation and application of the relevant provisions of the Act. Whatever the position, it is clear there was no jurisdiction to increase the sentence for the failure to provide a blood specimen, to reflect the suspension and ultimate removal of the community work hours. This is confirmed in the case of Franklin v Police.5[9] I also indicated, however, that the intention of Judge Couch was plain. The Court wished to substitute the outstanding community work with an additional period of imprisonment, it being acknowledged that it was in the best interests of Mr Gavigan that when he completed his sentence of imprisonment he have no residual sentences remaining to be served.[10] The sentencing Court could have achieved that objective by sentencing Mr Gavigan to the 10 month term of imprisonment and, on application under s 68 of the Act, cancelled the sentences of community work and substituted them for another sentence (four months imprisonment).6 The fact that Mr Gavigan was now subject to a sentence of imprisonment would in my view be a sufficient change of circumstance to warrant variation or cancellation of the original sentences of community work.[11] I indicated that if I was to allow the appeal on the basis of the identified error, it would be open to me to adopt such a course. Alternatively, I could order the matter be remitted back to the District Court for the purpose of Mr Gavigan being resentenced.[12] The former approach was taken by Duffy J in Franklin v Police.7 In that casethe sentence arrived at on appeal was less than 12 months' imprisonment, therebyproviding a discretion to the Court to either suspend the community work sentence, in which case it would be cancelled when the sentence of imprisonment came to an end, or to suspend it for the duration of the prison sentence, in which case it would5 Franklin v Police [2015] NZHC 2406 at [38]-[40].6 Sentencing Act 2002, s 68(3).7 Franklin v Police, above n 5.resume after the appellant had served his sentence of imprisonment. Duffy J considered the latter approach to be preferable, in the belief that requiring the appellant to continue serving his community work after completion of his prison sentence would have a rehabilitative effect.Joint memorandum of counsel[13] In response to the 20 June minute, counsel filed a joint memorandum detailing that they were in agreement, and respectfully submitted that:(a) the appellant's appeal should be allowed on the basis of the erroridentified at [9] of my minute set out at [8] above.(b) A sentence of 10 months' imprisonment be confirmed in relation to the appellant's conviction for refusing an officers request for a bloodsample.(c) The appellant's sentences of community work be cancelled andsubstituted for another sentence of four months' imprisonment. Thissubmission was to be treated as an unopposed application under s 68 of the Act.(d) An effective end sentence of 14 months' imprisonment be confirmed.Determination[14] I confirm my minute of 20 June and allow the appeal. Judge Couch erred in his application of s 78 of the Act, however his intention was clear and I agree with that intent. Instead of remitting the matter back to the District Court for Mr Gavigan to be resentenced, I quash the 14 month sentence on the charge of refusing to permit a specimen of blood for the purpose of alcohol testing procedures and substitute itwith a sentence of 10 months' imprisonment.[15] In response to the unopposed s 68 application made by counsel, I cancel Mr Gavigan's outstanding sentences of community work and substitute them for asentence of four months' imprisonment, to be served cumulatively. This leaves a total end sentence of 14 months' imprisonment, consistent with Judge Couch'soriginal sentence.[16] The conviction and discharge on the charge of failing to provide a name and address when requested by police is undisturbed.Solicitors:Rupert Glover Barrister, ChristchurchGresson Dorman & Co, Timaru