KING v NEW ZEALAND POLICE [2019] NZHC 1785

KING v NEW ZEALAND POLICE [2019] NZHC 1785 [26 July 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000060[2019] NZHC 1785BETWEEN MILES GORDON KINGAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2019Appearances: A N D Garrett for AppellantS Bicknell for RespondentJudgment: 26 July 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] Mr King, the appellant, pleaded guilty to three charges: unlawfully taking amotor vehicle; theft; and driving while his licence was revoked (third or subsequent).On 28 March 2019, Judge Couch sentenced the appellant to three years' imprisonmentand ordered him to pay $1,738.96 in reparation. The appellant appeals this sentenceon the basis that the cumulative sentence of 18 months is manifestly excessive for theuplift imposed on the driving whilst revoked. A shorter cumulative sentence to markthe driving would have been appropriate or, in the circumstances as described, aconcurrent sentence could have been imposed.Facts[2] In the afternoon of 9 January 2019, the appellant was a passenger in a vehicleon Travis Road, Christchurch. He and his companion saw a courier van deliveringparcels and decided to follow it. When the driver got out to deliver a parcel, theappellant got into the courier van and drove off in it. He took the van to a propertywhere he unloaded 40 or more parcels from it. At the time of this offending, theappellant's driver licence was revoked.District Court decision[3] Judge Couch approached the sentencing in two parts, beginning with thecharges for taking the van and the theft of the parcels. His Honour found theseproperty offences were opportunistic and involved no great degree of premeditation.For this offending the Judge adopted a starting point of two years and three months'imprisonment.[4] In regard to the charge of driving while his licence was revoked, the Judgeconsidered it was particularly serious that this was the appellant's 25th unlicenseddriving conviction. He therefore imposed an uplift of 18 months for this charge.Having regard to totality, Judge Couch then gave a discount of four months, whichresulted in an overall starting point of three years and five months.[5] The Judge imposed an uplift of two months to account for the fact that theoffending occurred while the appellant was subject to release conditions. The Judgealso applied a four month uplift to reflect the appellant's significant history ofdishonesty offending. This took the sentence to three years and 11 months.[6] Judge Couch then gave a 25 per cent discount for the appellant's guilty plea,resulting in an end sentence of three years' imprisonment. He also ordered theappellant to pay reparation of $1,738.96.Principles on appeal[7] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can be properly be justified by accepted sentencing principles".2 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.3SubmissionsAppellant's submissions[8] Mr Garrett, for the appellant, submits that the uplift of 18 months for the chargeof driving with a revoked licence was manifestly excessive. He points out that whilethis was the appellant's 25th unlicensed driving conviction, his last such convictionwas in October 2013. Mr Garrett submits this is a substantial gap in offending, albeitinterspersed with periods of imprisonment.[9] Mr Garrett also notes that the licence revocation was due to the appellantsuffering from seizures. He draws the Court's attention to a letter from the appellant'sgeneral practitioner, Dr McGinnity, which was provided to the Court on sentencing.Mr Garrett submits the letter states that the appellant had remained seizure free foralmost twelve months, meaning he was moving towards a possible review of themedical revocation. Furthermore, Mr Garrett contends there was no bad drivinginvolved in the present offending, but simply an impulsive taking of the van anddriving it only a few kilometres away.[10] In these circumstances, it is submitted for the appellant that a cumulativesentence of 18 months is excessive for the driving offence. Mr Garrett submits that aconsiderably shorter cumulative sentence would have been appropriate, or even aconcurrent sentence.1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].[11] Mr Garrett also raises the fact that the Judge omitted to impose a mandatoryperiod of disqualification from holding or obtaining a licence.Respondent's submissions[12] Ms Bicknell, for the respondent, submits that the starting point of 18 months'imprisonment for the driving offending was well within range. She refers to Opetaiav Police, which reviewed the various approaches to sentencing for driving whilstdisqualified or revoked.4 The first approach involves setting a starting point withreference to the instant offending and then uplifting it for previous offending,including convictions for driving while disqualified. Ms Bicknell says thatJudge Couch appears to have adopted the second approach laid out in Opetaia, whichinvolves setting a starting point with reference to the driving while disqualifiedoffences as well as any previous disqualified driving convictions. Both approachesshould lead to same result.5[13] Ms Bicknell refers to two cases to support her submission that the sentencewas within range. In Peterson v Police, Duffy J adopted a starting point of 10 months'imprisonment for an offence which was "not a grave case of driving whilstdisqualified" and had "no additional [aggravating] features".6 This was then upliftedto 17 months to reflect the fact that it was the defendant's seventh offence of this type,and that he had 76 prior convictions. In Drinkwater v Police, the appellate Courtupheld a starting point of 16 months for the appellant's 11th driving while disqualifiedoffence.7 Ronald Young J further stated that a starting point close to the maximum oftwo years' imprisonment could have been justified.8[14] Finally, Ms Bicknell points out that Judge Couch gave a four month discountfor totality in this case. She submits that the 18 month starting point for the appellant's25th offence of this nature was well within range.4 Opetaia v Police [2015] NZHC 2532.5 At [36].6 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009 at [9].7 Drinkwater v Police [2013] NZHC 1036.8 At [20].Analysis[15] On a review of the case law, I accept that a starting point of 18 months'imprisonment for a 25th charge of driving while disqualified or revoked is entirelywithin range. In addition to the cases referred to by Ms Bicknell, I note the following:(a) Stacey v Police: The defendant faced his 21st conviction for drivingwhile disqualified.9 The Court stated a 20 month starting point wouldhave been in range, but adopted a starting point of 18 months given thetime that had elapsed since his last relevant offence.(b) Garlick v Police: The defendant faced 12 charges, including his18th conviction for driving while disqualified or similar.10 The Judgeidentified driving while disqualified as the lead charge, and came to astarting point of 20 months on that charge.[16] I therefore cannot see that a starting point of 18 months for a 25th instance ofsuch offending was manifestly excessive. Indeed, the Judge could reasonably havetaken a slightly higher starting point than 18 months, given the number of prior suchoffences exceeds those in all the cases cited above.[17] The real issue is whether imposing that sentence cumulatively on the sentencefor taking the vehicle and theft fairly reflected the totality of the offending. WhileMr Garrett sought to minimise the offending on this occasion, describing it as, ineffect, part and parcel of an impulsive decision to take the van, I accept Ms Bicknell'ssubmission that it was a separate offence, in its own right. In any event, the Judgeappropriately moderated the effect of a cumulative sentence by giving a four monthdiscount, and in so doing had proper regard to the totality of the offending.[18] However, Mr Garrett was correct to point out that Judge Couch did not imposea period of disqualification. Section 32(4)(b) of the Land Transport Act 1998 requiredhim to order the appellant to be disqualified from holding or obtaining a driver licence9 Stacey v Police [2018] NZHC 3280.10 Garlick v Police [2016] NZHC 572.for one year or more. The appeal is therefore allowed in part, in order for this error tobe remedied. A disqualification period for the minimum 12 months is imposed.Outcome[19] The appeal is allowed in part. I am not persuaded that the sentence imposedwas manifestly excessive. However, the Judge erred in failing to impose a 12 monthperiod of disqualification as required under the Land Transport Act and a minimumperiod of disqualification of 12 months is imposed.Solicitors:A N D Garrett, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch