LESTER v POLICE [2020] NZHC 1794

LESTER v POLICE [2020] NZHC 1794 [24 July 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000015CRI-2020-412-000016CRI-2020-412-000017[2020] NZHC 1794BETWEEN REGAN JAMES LESTERAppellantAND NEW ZEALAND POLICERespondentHearing: 14 July 2020Appearances: S A Saunderson-Warner for the AppellantC J Bernhardt for the RespondentJudgment: 24 July 2020JUDGMENT OF NATION JIntroduction[1] On 20 May 2020, Mr Lester was sentenced to 10 months' imprisonment and18 months' disqualification from driving on a number of charges: receiving, beingunlawfully in an enclosed yard, careless driving, dangerous driving, failing to stop,possession of methamphetamine utensils, possession of cannabis, possession ofMDMA and common assault.1 He also appeared for re-sentence on a charge ofbreaching a protection order due to a failure to complete 361 of the 380 hours ofcommunity work he was sentenced to on that charge and for the remission of unpaidfines.1 R v Lester [2020] NZDC 8895.Facts[2] On 19 March 2019, Mr Lester was sentenced to community detention for sixmonths and 200 hours' community work on a charge of breaching a protection order.At the time, Mr Lester had outstanding fines of $3,788.53. As a substituted sentencefor those fines, Mr Lester was convicted and sentenced to 180 hours' community workin addition to the 200 hours imposed for the breach of a protection order.[3] That protection order was for the benefit of Mr Lester's former partner (thevictim) and their children. They had been in a relationship from about 2011 until early2018 and had two children together. On 2 August 2018 the protection order was servedon Mr Lester. At the time of the offending, Mr Lester was serving a sentence of homedetention with a non-association condition in favour of the victim. On 3 January 2019,a birthday celebration was arranged for one of their children at Chipmunks in Dunedin.Due to a misunderstanding, both the victim and Mr Lester attended the birthday partyat the same time. There was no incident at the party. The victim then went to leaveand be picked up by her partner. Mr Lester was outside and became involved in anangry exchange with the victim's partner. The victim told him to leave her partneralone, and they drove off. Later that afternoon, someone drove Mr Lester to thevictim's house. The victim came out of her house and there was an angry verbalexchange between her and Mr Lester. She told him to leave, which he did after a shorttime.[4] On 4 September 2019, Corrections filed an application for review of the 19March 2019 sentence and for a substituted sentence because Mr Lester had completedvery little of the community work to which he was sentenced for the offending. Hiscounsel accepts that Mr Lester would have had notice of that application soon after itwas filed.[5] On 21 September 2019, Mr Lester and an associate were at a school fete inDunedin and attended the silent auction. Mr Lester spoke with a woman, asking herabout a painting and writing down his name and phone number while the associateexamined other items. He knew the associate took a number of items from one of theboarding-house dormitories including a wristwatch, Bluetooth speaker, a men'sfragrance, a Macpac jacket, hockey boots, hard drives, an acoustic guitar and amountain bike. Mr Lester left the College riding the bike, carrying the associate withthe items on the handlebars. Mr Lester helped the associate load the items into theassociate's vehicle parked nearby. Of all the items taken, Mr Lester received the bike,Bluetooth speaker and jacket, together valued at $750, knowing the items to be stolen.He pawned the bike and the speaker for $180 at Cash Converters in South Dunedinlater that day. Mr Lester appeared in the District Court on 3 October 2019 and wasremanded on bail.[6] On 16 November 2019, Mr Lester and two co-offenders were found by policeon private property on Mornington Road. They were found at the rear of the propertybeside a shed which was open with the lights on. They had no permission to be there.Mr Lester appeared in the District Court on 21 November 2019 on a charge arising outof those circumstances. He was again remanded on bail.[7] On 12 December 2019, Mr Lester was driving south on the Dunedin SouthernMotorway. He was travelling in the right lane and braked heavily as he approached avehicle travelling ahead of him in the same lane. He moved into the left lane and hitthe left metal crash cushion. He continued driving south on the Motorway and intoMosgiel. He stopped at the intersection of Tyne and Forfar Streets to assess thedamage.[8] In the early hours of 8 February 2020, police observed Mr Lester leaving theRegent Street Night 'n Day and getting into his vehicle. Police approached the vehiclebut Mr Lester drove off. The Police activated their lights and siren, signalling for MrLester to stop but he accelerated away. He turned left onto Cosy Dell Road, continuingto drive at speed despite the road being narrow, minimally lit, winding, bordered bytrees and heading up a hill. The Police abandoned the pursuit at this point. Mr Lestercontinued driving up Cosy Dell Road at speed, lost control of his vehicle and crashedinto a tree. Police came across the crash and found Mr Lester trying to extricatehimself from the driver's seat. However, as a result of the damage to the vehicle, hewas unable to do so. Mr Lester was arrested. Police searched the vehicle and found5.1 g of cannabis plant, 1.1 g of MDMA and a glass pipe used for smokingmethamphetamine. On charges arising out of all this, Mr Lester was again remandedon bail.[9] On 25 February 2019, Mr Lester was charged with driving offences relating tohis actions on 12 December 2019. He was remanded again on bail.[10] On 9 April 2020, there was an incident with Mr Lester's flatmate, resulting ina charge of assault. The victim and Mr Lester's father got into an argument over thevictim not cleaning up some glass he had broken. The victim yelled at Mr Lester'sfather. Mr Lester left his room, approached the victim and shoved the victim in theshoulders with both hands, causing him to fall to the ground. As the victim put hishand out to break his fall he cut his thumb and three fingers.District Court decision[11] Judge Crosbie took the receiving as the lead offence and adopted an overallstarting point of 12 months for that and the remaining charges. Included in that, wasan uplift of three months for the re-sentencing on the breach of protection order charge.His sentencing notes record he did so by adopting a starting point for that offence ofsix months' imprisonment. He discounted that by three months because of Mr Lester'scompliance with a sentence of six months' "supervision".[12] The Judge allowed a two month discount for totality. There was an uplift ofone month for Mr Lester's previous convictions and one month for his offending whileon bail. This brought the indicative sentence to 12 months. He made a further upliftof two months for the unpaid fines. Thus, he reached an adjusted starting point of 14months. Finally, the Judge applied a guilty plea discount of four months (or 28.57 percent) to produce an end sentence of 10 months' imprisonment.[13] Taking into account that the first six months of any period of disqualificationperiod would elapse while Mr Lester was in prison, the Judge imposed a "slightlylonger" disqualification period of 18 months for the driving offending.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.2As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court'sdecision, "[an appellate] court 'will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles'".3 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.4 The focus of an appellate court must "primarily be on the appropriatenessof the end sentence, not the means by which that end sentence has been reached".5Submissions[15] For Mr Lester, Ms Saunderson-Warner confined the appeal to two discretegrounds:(a) the Judge erred by making excessive uplifts of three months for the re-sentencing and two months for the unpaid fines; and(b) the Judge erred by imposing an excessive disqualification period.[16] As to the first ground, Ms Saunderson-Warner accepted there was no error inthe Judge indicating an appropriate starting point as being six months' imprisonmentfor the breach of protection order offence for which he had to re-sentence Mr Lester.She noted that offence was committed at a time when Mr Lester was already servinga sentence of home detention for breach of a protection order and he was also in breachof one of the conditions of his home detention sentence. Counsel accepted the Judgehad halved that starting point to arrive at an appropriate end sentence for that offenceof three months. In his sentencing notes, the Judge said he had reduced the starting2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Skipper v R [2011] NZCA 250 at [28].point to recognise Mr Lester had complied with and completed six months of asentence of supervision. In her submissions, Ms Saunderson-Warner thus assumed MrLester had been subject to a sentence of supervision and had complied with thatsentence.[17] Ms Saunderson-Warner said Mr Lester had also been sentenced to six months'community detention. She submitted that s 68(4) Sentencing Act 2002 required theJudge to give credit for Mr Lester having completed his sentence of communitydetention. She said the Judge had been in error in not doing this. The error had to becorrected on appeal.[18] The Court of Appeal has emphasised that, on a re-sentencing, a court is toproceed on the basis of all that was relevant for the original offence, without anyelement of punishment for a failure or inability to comply with the terms of a sentencewhich is under review.6[19] Section 68 Sentencing Act permits a court to vary or cancel a sentence ofcommunity work when an offender has not completed the work required. On a reviewof such a sentence, s 68(4) requires the Judge to take into account the portion of theoriginal sentence of community work that remains unserved at the time of the re-sentencing. Arguably, that did not require the Judge to give Mr Lester credit forcomplying with a sentence of supervision, but I need not determine that question.[20] At the time Ms Saunderson-Warner filed her written submissions and on thehearing of the appeal, she did not have the sentencing notes from 19 March 2019 whenthe original sentence was imposed. Those notes were made available to me from theDistrict Court only after the hearing of the appeal.7 They disclose, first, that JudgeTurner then considered an appropriate period of imprisonment for breach of aprotection order offence would have been nine months' imprisonment (eight-monthstarting point, four-month uplift for offending whilst on home detention and forprevious convictions, and a three-month discount for mitigating factors), not the sixmonths Judge Crosbie arrived at on the re-sentencing. It can thus be said that, on the6 R v Morgan [2008] NZCA 232 at [13].7 Police v Lester [2019] NZDC 26696.re-sentencing, Judge Crosbie arrived at an adjusted starting point which was on thegenerous side as far as Mr Lester was concerned.[21] It is additionally apparent there is a discrepancy between the sentencesostensibly imposed by Judge Turner and the sentences Judge Turner noted on therecord of hearing sheet for the breach of protection order charge and in Mr Lester'scriminal and traffic history report produced for Judge Crosbie by the Ministry ofJustice. Judge Turner appears in his sentencing notes only to have sentenced Mr Lesterto community work and community detention. Whereas the record of hearing clearlyshows the Judge having stamped, annotated and signed three separate sentences ofcommunity work, community detention and supervision. The supervision sentenceentry is particularised as being for a term of six months and "as per post detentionconditions". Moreover, a pre-sentence report produced on 26 November 2019 only inrelation to the contemplated re-sentencing on 28 November 2019 on the breach ofprotection order charge records "[Mr Lester] has successfully completed both theSupervision and Community Detention sentences".[22] Mr Lester was evidently not sentenced on 28 November 2019. There was thena further pre-sentence report produced on 12 May 2020 for the re-sentencing as wellas the other offending committed between 21 September 2019 and 9 April 2020. Thisappears to have been the principal pre-sentence report before Judge Crosbie (it isunclear whether he had access to the 26 November 2019 report). Curiously, that reportmakes no mention of a sentence of supervision and mentions the sentence ofcommunity detention only in passing: "[h]is time of most stability was during HomeDetention in 2018 but even then required changes of address between his mother andfather's separate home's [sic] due to behaviours he was exhibiting at the time and thiscontinued throughout Community Detention in 2019" (emphasis added). It thusappears that Corrections and Mr Lester must have both considered that Mr Lester hadalso been subject to a sentence of supervision.[23] Ms Saunderson-Warner could thus responsibly submit that Judge Crosbie hadfailed to give Mr Lester credit for the completion of his sentence of communitydetention in addition to complying with a sentence of supervision.[24] Despite this, there is nothing to indicate that the term of Mr Lester'ssupervision was particularly onerous. It also seems that during the time he was undersupervision (at the same time he was subject to community detention), he wasexhibiting problematic behaviours. The sentence of community detention required MrLester to be subject to a curfew only between 7.00 pm Friday and 7.00 am Monday sothat penalty was not particularly onerous given the offence for which communitydetention had been imposed. The adoption of a starting point of six months for thebreach of the protection order on the re-sentencing was on the generous side. Iconsider the three months credit Judge Crosbie gave Mr Lester against a starting pointof six months would have been significant credit for Mr Lester's compliance withsentences of both six months' community detention and six months' suspension hadthe Judge referred to both on the re-sentencing.[25] Furthermore, on an appeal, the focus overall must be on the end sentenceimposed. Even with Mr Lester having earlier complied with a sentence of communitydetention, I would not have found Mr Lester's end sentence of 12 months to have beenmanifestly excessive for all the offending for which he was being sentenced given thecircumstances of that offending.[26] Ms Saunderson-Warner also suggested the uplift of two months for the unpaidfines of $3,788.53 was excessive relative to the total value of the fines. However, sheacknowledged there is no formula for arriving at an appropriate sentence insubstitution for fines. She suggested the sentence of two months' imprisonment shouldhave some correlation to the 180 hours' community work imposed for non-paymentof those fines.[27] With the sentence of community work being cancelled, the Judge however hadto put that sentence aside and decide an appropriate uplift in the term of imprisonmentin substitution for non-payment of the fines. The total of unpaid fines wasconsiderable. The information before the Court disclosed that the fines had beenaccumulated regularly over a period between 27 June 2015 and 2 August 2018. Mostof the fines were for offences which indicated Mr Lester had no regard to hisresponsibilities as a driver or the owner of a car. There were fines mainly for drivingwithout a warrant of fitness, failing to comply with various rules for a learner licenseeand driving when unlicensed. I do not consider the uplift of two months for the non-payment of fines in these circumstances was out of range.[28] As to the disqualification period, Ms Saunderson-Warner submitted there wasno need to impose a disqualification for more than a cumulative minimum of 12months (six months for dangerous driving and six months for failing to stop). Inmitigation, she said the dangerous driving incident occurred at 3.35 am when therewas likely to be very few other road users, and the period of driving must have beenrelatively short having travelled a distance of 650 m at most.[29] Counsel also submitted it was not usual for a court to defer the start date of adisqualification period, under s 85(1) Land Transport Act 1998, where the offender issubject to a short term sentence.8 Further, she submitted the Judge did not actuallyapply s 85(1), which left the disqualification period excessively long. She suggestedMr Lester's limited driving offence history counted against an 18 month period ofdisqualification.[30] I do not accept that a period of 18 months' disqualification was excessive forthe dangerous driving and failing to stop charges. The Judge correctly described theincident as a "very dangerous chase". It resulted in the car crashing, which is why thedistance travelled was not longer. The car was being driven so dangerously that thePolice withdrew from the chase. The driving was on a narrow and winding suburbanroad. Mr Lester had failed to stop and tried to flee from the Police to avoidapprehension and the detection of his offences, namely his possession of cannabis,MDMA and a methamphetamine pipe in his vehicle at the time.[31] This was a case of dangerous driving that would reasonably have called for aperiod of disqualification above the minimum 12 months. Twelve months was thecumulative mandatory minimum with both the dangerous driving and failing to stopconvictions. The Judge however did have a sound basis for extending the term ofdisqualification to allow for the time Mr Lester would be in prison so as to ensure thedisqualification would have effect for the period the Judge considered appropriate.8 See for examples of deferral in relation to long-term sentences: Matangi v Police [2018] NZHC1479; and Taiapa v R [2019] NZCA 524.[32] In Work v Police, Heath J said "in my view it is appropriate for a sentencer toimpose a period of disqualification that will have some effect on the prisoner,notwithstanding the term to be served."9 The District Court Judge sentenced Mr Workto 18 months' imprisonment on a variety of charges, the most serious being receivingstolen property. Judge Kellar also imposed an 18-month disqualification period ontwo charges of driving while disqualified. The Judge ordered that the disqualificationperiod commence "on the date[he was] released from prison". Mr Work appealedon the basis the District Court should have ordered it commence on the date hisprevious disqualification period was to end.10 Heath J accepted s 85(3) was to be givenprimacy to s 85(1) Land Transport Act such that the start date should be set as the enddate of the previous disqualification period not the prison release date. However,Heath J was concerned that if the disqualification period started on that date, up to onehalf of the disqualification period could expire while he was in custody. To avoid thatand to ensure the disqualification would affect Mr Work for the 18 months thesentencing Judge had said was appropriate for his offending, Heath J increased thedisqualification period to 21 months.11 He noted, for reasons of uncertainty as to anoffender's release date, it may not be appropriate to set the disqualification period asbeginning from the release date.[33] Work has direct application to the present case. It is authority for a sentencingcourt to extend a period of disqualification to recognise that some of thedisqualification period will elapse while the offender is in prison. Judge Crosbie'sextension of the period without explicitly relying on s 85(1) Land Transport Act isconsistent with the approach Heath J took. Section 85(1) permitted this approach. Itstates: "the period of disqualification starts on the day the order is made unless thecourt otherwise directs ". The sentencing Judge thus had an unfettered discretion.This would have allowed him to direct the period of disqualification should begin atthe end of the prison sentence to ensure the offender was penalised to the extent theJudge considered appropriate. The way Heath J and Judge Crosbie extended the9 Work v Police HC Dunedin CRI-2008-412-11, 5 June 2008 at [13].10 Arguing subs (3) has primacy over subs (1) of s 85 Land Transport Act 1998.11 Citing s 121(4)(c) of the Summary Proceedings Act 1957, which has since been repealed andreplaced by the power to increase a sentence on appeal inherent in the broad terms of s 250(2) ofthe Criminal Procedure Act.period of disqualification instead of doing that, was consistent with the way they couldhave exercised the discretion available under s 85(1).[34] Ms Saunderson-Warner told me that Mr Lester is likely to be released inSeptember 2020. If that is the case, with a disqualification for 18 months from 20May 2020, Mr Lester will be effectively disqualified from driving for approximately14 months. That would not be an excessive period of disqualification given theoffending for which the disqualification was imposed.Conclusion[35] I have not been persuaded that either the sentence of imprisonment or theperiod of disqualification was manifestly excessive.[36] The appeal is dismissed.Solicitors:S Saunderson-Warner, Barrister, DunedinCrown Solicitor, Dunedin.