ANNGOW v NEW ZEALAND POLICE [2021] NZHC 128

ANNGOW v NEW ZEALAND POLICE [2021] NZHC 128 [10 February 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000044[2021] NZHC 128BETWEEN NICOLA MARY ANNGOWAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2021Appearances: J Lucas for AppellantP A Norman for RespondentJudgment: 10 February 2021JUDGMENT OF DOOGUE JIntroduction[1] On 15 October 2020 the Appellant Ms Anngow pleaded guilty to three chargesof driving whilst her licence was suspended, third or subsequent1, and one charge offailing to stop for red or blue flashing lights.2[2] Judge Turner sentenced Ms Anngow to 11 months' imprisonment anddisqualified her from holding or obtaining a motor vehicle drivers licence for a totalof one year and six months.31 Land Transport Act 1998, ss 32(1)(c) and 32(4).2 Sections 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2).3 Police v Anngow [2020] NZDC 21151.[3] Ms Anngow's notice of appeal was filed out of time. No opposition was raisedto the appeal on that ground. In the circumstances of this case I am satisfied that leaveto appeal out of time should be granted.[4] Ms Anngow appeals the Judge's sentence on the grounds that the sentence ismanifestly excessive.Circumstances of the offending[5] On 17 April 2014 Ms Anngow was convicted and sentenced for driving whiledisqualified third or subsequent. In February 2020, her licence was suspended as aresult of receiving excess demerit points. That suspension ended on 23 May 2020.[6] On 26 March 2020, Ms Anngow was driving in Timaru, bound for Dunedin,when she was stopped by police.[7] On 7 April 2020, Ms Anngow was again caught driving, this time in Mosgiel.As she exited a petrol station, police activated their lights and siren. Instead ofstopping she accelerated hard away from the petrol station.District Court Judge's Decision[8] Judge Turner began by setting out the charges and the sentencing optionsavailable. He considered Ms Anngow's previous convictions, noting that she had hadfour prior convictions for driving while suspended or disqualified4 and had breachedcourt sentences on six previous occasions.5[9] Next, the Judge considered the pre-sentence reports. He noted Ms Anngow'schaotic lifestyle and that she would not consent to home detention. He referred to thereport writers who questioned Ms Anngow's ability to comply with a lesser sentencelike community detention.4 Police v Anngow at [10].5 Police v Anngow at [11] and [12].[10] The Judge acknowledged Ms Anngow's personal circumstances, includingsolo parenting a 16-year-old child, her accommodation difficulties and the amount ofher outstanding fines ($8,790.96) for which no payments had been received for over ayear.6[11] The Judge then addressed the "gravity" of the offending, specifically stating:[22] In my view this was a deliberate and persistent flouting of the noticesuspending your licence. It had been served on you in February of this year.A month later you chose to drive a car to Dunedin in the course of youremployment relocating cars. You were stopped in Timaru.[23] Less than two weeks after that offending, in Mosgiel you attempted toflee police and drove dangerously in a borrowed car. You had the car becauseyou thought police might not recognise the vehicle or you. And less than fourweeks later you were again caught driving another vehicle in Timaru,relocating that from Nelson.[24] This is your seventh conviction for like offending within eight years withthree in three months.[12] The Judge adopted a starting point of 18 months' imprisonment. He cited thecase of Iwikau v Police7 as authority for the proposition that a sentence between sixand ten months would be appropriate for a seventh offence, and noted that:[t]he authorities establish a trend of substantial increases for subsequentoffending between fifth and tenth sentences.8[13] The Judge did not impose an uplift for Ms Anngow's earlier offending, notingthis was taken into account in setting the starting point.[14] He gave a discount of 25 per cent for Ms Anngow's guilty pleas.[15] The Judge granted a further discount of 10 per cent for Ms Anngow's personalcircumstances, though he noted "the information [was] somewhat sketchy andlimited" in that regard.96 Police v Anngow at [19] and [20].7 Iwikau v Police [2013] NZHC 2515.8 Police v Anngow at [25].9 Police v Anngow at [28].[16] The Judge thought imprisonment was appropriate because Ms Anngow had"deliberately and persistently ignored [her] legal obligations". He noted that she hadtaken steps to conceal her offending and had fled from police.[17] In declining to grant leave to apply for a substituted sentence, the Judgecommented that the persistent and deliberate nature of Ms Anngow's offending meantthat home detention would not hold her accountable or be sufficient deterrence.[18] Alongside imprisonment, the Judge disqualified Ms Anngow from driving forone year on the driving while suspended charges, and six months (cumulative) on thefailing to stop charge. He also remitted the appellant's fines of $8,780.96 in light ofthe sentence imposed.10Principles on Appeal[19] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011.[20] Section 250(2) of the Act relevantly provides that the Court must allow anappeal if satisfied that:(a) For any reason there is an error in the sentence imposed; and(b) A different sentence should be imposed.[21] The Court must dismiss the appeal in any other case.11[22] The appellate court should not intervene where the sentence is within theavailable range that can properly be justified by accepted sentencing principles.1210 Police v Anngow at [37].11 Criminal Procedure Act 2011 s 250(3).12 Tutakangahau v R [2014] NZCA 279 at [36].[23] However, the appeal court should substitute its own view if the sentence underappeal is "manifestly excessive" or one that cannot be justified on the application ofrelevant sentencing principles.13[24] The Court of Appeal has repeatedly held that the focus in sentence appealsremains on whether the sentence imposed is within range, rather than the process bywhich the sentence was reached.14 An appeal court should not engage in mere"tinkering".15Appellant's submissions[25] Mrs Campbell acknowledged that the starting point of 18 months'imprisonment was appropriate in the circumstances and in line with the caseauthorities.16 She did not challenge the various adjustments made by the Judge to thestarting point.[26] However, she submitted that the Judge paid no proper regard to the principlesunder ss 8(g) and 16 of the Sentencing Act. She submitted that the Judge's simplestatement "the only response open to the Court is a sentence of imprisonment"17demonstrated the Judge did not consider other less restrictive options such as acombination of significant community work and supervision. She acknowledgedhome detention was not advanced as Ms Anngow had no address suitable for anelectronically monitored sentence.[27] Mrs Campbell submitted that the Judge erred because he did not observe thatMs Anngow had never previously had the benefit of a rehabilitative sentence such assupervision (which was recommended by the pre-sentence report writer) and that sucha sentence would have provided her with skills to ameliorate her impulsivity, lack ofconsequential thinking and chaotic lifestyle.13 Ripia v R [2011] NZCA 102 at [15].14 Islam v R [2020] NZCA 140 at [32]; D (CA 197/2014) v R [2014] NZCA 373 at [18], Tutakangahauv R [2014] NZCA 279 at [36].15 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler vCommissioner of Inland Revenue [2017] NZHC 2888 at [16]; and Larkin v Ministry of SocialDevelopment [2015] NZHC 680 at [26].16 Police v Anngow at [25].17 Police v Anngow at [31].[28] In addition, Mrs Campbell submitted the Judge did not pay sufficient regard tothe impact of imprisonment on the relationship between Ms Anngow and her teenagedaughter.[29] Finally, Mrs Campbell submitted that a significant sentence of communitywork is viewed as a punitive sentence in the hierarchy of sentencing and should nothave been disregarded by the Judge. She referred to the statements of the Court ofAppeal in R v Rawiri that a sentence of imprisonment is a measure of last resort.18Respondent's submissions[30] Ms Norman for the respondent submitted that there was no error in the Judge'sdecision and a short a term of imprisonment was the least restrictive outcome in thecircumstances.[31] She also submitted that given Ms Anngow had received sentences ofcommunity detention before and gone on to reoffend, that it was appropriate for theJudge to go to the next level in the sentencing hierarchy, especially given the absenceof a suitable address for an electronically monitored sentence.[32] Further Ms Norman submitted that the Judge did expressly turn his mind to theprinciples in ss 8(g) and 16 because he specifically rejected that a sentence ofimprisonment was disproportionate to the degree of criminality in the offending.19[33] Later, in declining to grant leave to apply for a substituted sentence, the Judgeobserved:There is no address available but, in any event, given the persistent nature ofyour offending and its deliberateness, I do not consider that home detentionwould meet the purposes and principles of holding you accountable anddeterring you from driving whilst your licence was suspended.[34] Ms Norman submitted appropriately that s 16 must also be read alongside s 17of the Act which confirms the Court's discretion to impose a sentence of imprisonmenton an offender if the Court is satisfied on reasonable grounds that the offender is18 R v Rawiri [2011] NZCA 244 at para [18].19 Anngow v Police at [30].unlikely to comply with any other sentence that it could lawfully impose and thatwould otherwise be appropriate. After traversing Ms Anngow's criminal history,including her history of non-compliance, and the pre-sentence reports, Ms Normansubmitted it was well within the Judge's discretion to refuse a substituted sentence forthis precise reasoning.DiscussionWas a sentence of imprisonment the least restrictive outcome?[35] Section 10A(2) of the Sentencing Act provides the following hierarchy ofsentences:(a) discharge or order to come up for sentence if called on:(b) sentences of a fine and reparation:(c) community-based sentences of community work and supervision:(d) community-based sentences of intensive supervision and communitydetention:(e) sentence of home detention:(f) sentence of imprisonment.[36] A sentence of imprisonment is therefore the most severe sentence.[37] One of the purposes of sentencing is to assist in the offender's rehabilitationand reintegration.20 This purpose must be balanced against the purposes of promotingin the offender a sense of responsibility21, denouncing the conduct22, deterring20 Sentencing Act 2002, s 7(1)(h).21 Section 7(1)(b).22 Section 7(1)(e).Ms Anngow and others from offending in a similar manner23 and protecting thecommunity from the offender.24[38] Ms Anngow has not been sentenced to, nor had the benefit of, a sentence ofsupervision. She has been sentenced to community detention on two occasions. Hercriminal history records that in late 2016 she received a sentence of imprisonment forbreaching the conditions of community detention. She has breached sentence on sixoccasions.[39] The fact that Ms Anngow has repeatedly and deliberately driven whilesuspended is cause for concern. The pre-sentence report dated 7 July 2020 states sheborrowed a friend's car in an attempt to conceal her driving. Further, in the April 2020offending, Ms Anngow attempted to evade police by fleeing at speed. The pre-sentence report states there was "no indication of reflection on the potential impact onothers of her speeding".[40] Both pre-sentence reports state Ms Anngow lives a "chaotic lifestyle". Thebreaches of community work and of community detention are indicative of herinability to comply with community-based sentences. While Ms Anngow is engagedin a chaotic and transient lifestyle, I consider a sentence of supervision may be settingher up to fail to achieve her obligations under that sentence.[41] Based on the information available to the court, I consider it is unlikely thatMs Anngow is likely or able to comply with the sentence of supervision andcommunity work.[42] In my view, a custodial sentence is not disproportionate to the level ofcriminality. I agree with the District Court Judge that the deliberate, persistent andrepetitive nature of the offending means that a sentence of imprisonment is the leastrestrictive sentence that can be imposed in the circumstances. The sentence mustpromote a sense of responsibility in Ms Anngow, denounce her conduct and deterMs Anngow and others from committing similar offending.2523 Section 7(1)(f).24 Section 7(1)(g).25 Sentencing Act 2002 s 7 (1)(e) and (1)(f).The custodial sentence[43] It is common ground that the sentence starting point was appropriate. Thefollowing cases illustrate the range of starting points for offending of this kind:1. Iwikau v Police: a starting point of 10 months' imprisonmentfor the appellant's sixth conviction was imposed.262. R v Finch: an uplift of 14 months' imprisonment was appliedto the starting point for the offenders fifth, sixth and seventhdriving while disqualified convictions.273. Jonathan v Police: the offender was convicted of sixth andseventh charges of driving whilst disqualified. The DistrictCourt Judge adopted a starting point of 12 monthsimprisonment which was uplifted by four months, bringing thestarting sentence to 16 months' imprisonment.284. Jenkins v Police: on appeal a starting point of nine months'imprisonment was adopted for a seventh conviction of drivingwhile disqualified. This was uplifted by three months for asixth conviction, bringing the overall starting point for thedriving offending to 12 months imprisonment.29[44] In my view, in light of these authorities, the global starting point of 18 months'imprisonment was within the range available to the Judge.[45] Ms Anngow has a criminal history that records some 20 convictions between2008 and 2018. While the Judge could have applied an uplift in respect of this historyhe did not.26 Iwikau v Police [2013] NZHC 2515.27 R v Finch (DC Christchurch CRI-2011-009-010156, 21 June 2012). Upheld upon appeal in Finch vR [2012] NZCA 446.28 Jonathan v Police [2019] NZHC 1115 at [5].29 Jenkins v Police [2018] NZHC 2055 at [9].[46] In respect of mitigating factors personal to the offender the District Court Judgesaid:[28] Although the information is somewhat sketchy and limited, I amprepared to accept you have personal issues, including anxiety. You haveresponsibilities to a 16-year-old and I need to take [that] into account. I amprepared to allow 10 per cent for those matters which I consider generousgiven the girth of information.[47] Mrs Campbell's written submissions do not mention Ms Anngow sufferingfrom anxiety, nor was I able to locate any evidence of this in the court file. Iacknowledge Ms Anngow's responsibilities to her daughter, but I was advised byMrs Campbell in oral submissions that Ms Anngow's daughter is being well cared forby her grandparents.[48] In my view, a discount of 10 per cent for personal issues is extremely generous.A discount of 25 per cent was available and appropriate for Ms Anngow's guilty pleas.Accordingly, I consider the end sentence of 11 months' imprisonment was within rangeand the final outcome not manifestly excessive.[49] The Court must impose a disqualification period of one year or more where aperson is convicted of their third or subsequent conviction for driving whiledisqualified, accordingly the disqualification period of one year on each of the chargeswas appropriate.[50] I consider the disqualification period of six months for the failure to stop forred and blue flashing lights was appropriate.Conclusion[51] The sentence imposed by the Judge was well within the range available to himhaving regard to the circumstances of the case and was not manifestly excessive.Outcome[52] The appeal is dismissed.Doogue JSolicitors:Josh Lucas, ChristchurchRPB Law, Dunedin