SHIRLEY v NEW ZEALAND POLICE [2022] NZHC 986

SHIRLEY v NEW ZEALAND POLICE [2022] NZHC 986 [10 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-45[2022] NZHC 986BETWEEN NATHAN WILLIAM SHIRLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 5 May 2022Appearances: C G Nolan for AppellantJ H Whitcombe for RespondentJudgment: 10 May 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 10 May 2022 at 2.30 pmRegistrar/Deputy RegistrarDate:Introduction[1] Nathan Shirley was sentenced, in the District Court, to three months'community detention and six months of supervision. He was disqualified fromholding or obtaining a driver's licence for a period of one year, one month.1 Mr Shirleywas also to attend an assessment for a Corrections Department programme andcomplete any programme recommended by a probation officer. The sentence was ona charge of driving while disqualified (third or subsequent). 2[2] Mr Shirley appeals his sentence.Facts[3] Mr Shirley had been disqualified from driving for three months on 20September 2021. On 8 October 2021, police found him driving on Fitzgerald Avenue,Christchurch. He faced the aggravated charge because of convictions in 2005 and2008 for driving while disqualified.Principles on appeal[4] 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.3 The focus is not on the process by which the sentence was reached, buton the correctness of the end result.4 In making this assessment, appellate courts donot interfere with the legitimate exercise of judicial discretion or indulge in meretinkering with the sentence.1 New Zealand Police v Shirley [2022] NZDC 4526.2 Land Transport Act 1998, ss 32(1)(c) and 32(4); maximum penalty 3 months' imprisonment or a$6,000 fine.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Ripia v R [2011] NZCA 101 at [15].District Court decision[5] The sentencing Judge's comments were understandably brief. In adopting thesentence detailed above at [1], the Judge clearly treated Mr Shirley's previous drivingconvictions as historic. His Honour considered straight supervision would beinappropriate, leading to the additional imposition of community detention at anaddress which appeared acceptable to the Corrections Department. The Judge did notstate a reason for imposing, as the period of disqualification, 13 months rather than12 months.SubmissionsAppellant's submissions[6] Mr Nolan, appearing for Mr Shirley, acknowledged the lack of a tariff case forsentencing on cases of driving while disqualified (third or subsequent). He contendedthe Courts had nevertheless found the number of previous convictions to be relevantin assessing the starting point.[7] Mr Nolan cited several cases where sentences of imprisonment have beenimposed. He concluded a starting point of five months' imprisonment would beappropriate, leading ultimately to a period of community detention or supervision. MrNolan submitted a sentence of supervision or community detention, but not both,would have been appropriate.[8] On the disqualification, Mr Nolan submitted the minimum period (12 months)should have been imposed. He observed the disqualification period of one year andone month meant Mr Shirley would have to re-sit his driver's licence test, havingreferred to the courts' recognition that disqualification orders should be as short aspossible having regard to the underlying goal of road safety.55 Duncan v Police HC Christchurch CRI-2003-409-000034, 17 July 2003 at [10].Respondent's submissions[9] Mr Whitcombe submitted the sentence was not manifestly excessive. Citingcases where greater sentences, including imprisonment, were imposed, he submittedcommunity detention of three months was well within range.6 He referred also to therehabilitative considerations highlighted by the pre-sentence report, the rehabilitativeimplications of supervision, and the inability to impose supervision for a term less thansix months as reinforcing that community detention was appropriate.[10] Mr Whitcombe noted that disqualification may not be ordered for less than 12months.7 As such, he submitted that any reduction from the sentence of one year andone month would be tinkering.Analysis[11] When sentencing recidivist offenders, particularly where offending pertains toa breach of Court imposed orders, a Court may impose a stern sentence where adeliberate and flagrant breach is at hand. Repeated failure to abide by disqualificationorders undermines a central means of achieving compliance with land transport laws.8[12] While recognising this purpose, any sentence must also reflect principles of theSentencing Act 2002. That includes taking into consideration the goals ofaccountability and whether deterrence can be achieved by way of a less restrictivesentence.9[13] There is no tariff case. Rather there have been a wide range of sentences foranalogous offending.10 The Judge's sentence of three months' community detentionand six months of supervision can be seen as being within range. The sentence ofcommunity detention speaks to principles of accountability and deterrence. The6 Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009 saw a sentence of 10months' imprisonment for the appellant's sixth conviction for driving while disqualified; andMcGill v Police [2021] NZHC 2020 involved a sentence of five months' community detention inresponse to a third conviction of driving while disqualified.7 Land Transport Act 1998, s 32(4)(b).8 For example: Lord v Police [2015] NZHC 1756 at [11].9 Sentencing Act 2002, s 8.10 Lord v Police, above n 8; Burgess v Police [2021] NZHC 362; Muhinda v Police [2015] NZHC2024; McGill v Police [2021] NZHC 2020;period of supervision, and accompanying programme, is not onerous (indeed it is theminimum period available) and may prove to be the step that leads Mr Shirley toaddress the intermittent offending which has marred an otherwise encouraging declinein his offending.[14] As noted by the Court of Appeal in Hitchens v R, the competing considerationsin addressing a period of disqualification are:11(a) long periods of disqualification typically leave little hope for offenders;and(b) it is incumbent on the Courts to keep dangerous drivers off the road foras long as reasonably possible.[15] As Mr Nolan raised, however, disqualification orders are to be kept as short aspossible to achieve the goal of road safety.12[16] Given the imposed period of disqualification, Mr Shirley would need to re-sitall the relevant tests required to obtaining a driver's licence. The process of regainingfull entitlement to drive is likely to take a significant period, even if all goes well inthat process.[17] Mr Shirley does not have an unblemished record. However, his last offence ofdriving while disqualified (before this) occurred in March 2008. A disqualification ofone year on this occasion would have sufficed to achieve the aims of road safety andto bring home to Mr Shirley the consequences of his offending. The longerdisqualification, with its implications, would have a significant and disproportionateimpact. Making an adjustment to the length of disqualification does not, in thosecircumstances, amount to tinkering.11 Hitchens v R CA380/03, 25 March 2004 at [10].12 Duncan v Police, above n 5. See also Leaupepe v Police [2015] NZHC 1766 at [10].Outcome[18] The appeal will be allowed in relation to the period of disqualification butotherwise dismissed.Order[19] I order:(a) the appeal is allowed in relation to the sentence of disqualification fromholding or obtaining a driver's licence for a period of one year and onemonth (the period of disqualification);(b) the period of disqualification is quashed and substituted by a period of12 months; and(c) the appeal is otherwise dismissed.Osborne JSolicitors:Crown Solicitor, ChristchurchBarrister:C G Nolan, Barrister, Christchurch