VICKERY v NEW ZEALAND POLICE [2019] NZHC 1315

VICKERY v NEW ZEALAND POLICE [2019] NZHC 1315 [11 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-255[2019] NZHC 1315BETWEEN TIMOTHY DONALD VICKERYAppellantAND NEW ZEALAND POLICERespondentHearing: 11 June 2019Appearances: P S Chamberlain and N D Bond for the AppellantM J Mortimer for the RespondentJudgment: 11 June 2019ORAL JUDGMENT OF PALMER JSolicitors:Crown Solicitor, AucklandPublic Defence Service, AucklandWhat happened?[1] Mr Timothy Vickery is a 27-year-old Australian citizen who had a NewZealand partner for several years in Australia. She returned to New Zealand when shebecame pregnant. Mr Vickery moved to New Zealand to be with her on 26 January2019 after he was released from prison in Western Australia. He had a lengthy criminalhistory there including nine convictions for violence and six driving-relatedconvictions.[2] On 2 February 2019, Mr Vickery began drinking heavily. His presence in apaddock apparently agitated a new horse, leading his partner to ask him to get out ofthe paddock. He argued with his partner. He yelled abuse at her and threatened tobreak her jaw, once if she did not leave him alone and once when she refused to givehim quad-bike keys. He also threatened to get a shot-gun and shoot her in the chest.When she gave him the keys he went fishing and she left. He came back to find theywere gone and took a car owned by his partner's mother without permission. He wasstopped by the Police driving erratically. He told them to "get fucked" and tried todrive around them but was blocked. He tried to escape, did not and was found to beat twice the legal breath alcohol limit. He was charged with unlawfully taking a motorvehicle, driving with excess breath alcohol and intimidating behaviour. He pleadedguilty.[3] In her original unsigned victim impact statement, Mr Vickery's partner isreported to have said he is addicted to methamphetamine, heroin and cannabis and hasassaulted her in the past. She is said to have requested a protection order against him,for her and her son. She and Mr Vickery are now separated but he apparently wishesto remain in New Zealand. He explained to the Department of Corrections that he wasdrinking that day to cope with withdrawal from methamphetamine which he beganusing from the age of 19 until he was 26. Corrections recommended a sentence ofimprisonment with leave to apply for home detention at a residential rehabilitationfacility.Decision under appeal[4] In sentencing Mr Vickery on 16 May 2019, Judge A-M J Bouchier considereda sentence of imprisonment was appropriate.1 She set a starting point of six months'imprisonment for dishonestly taking a motor vehicle, uplifted it by three months forthe intimidating behaviour and excess breath alcohol and by another three months forhis previous convictions. She gave a discount of 25 per cent for his guilty plea. Thatresulted in nine months' imprisonment. She disqualified him from holding a driver'slicence for three months. The Judge ordered, after that, he must obtain an alcoholinterlock device to be able to drive. She imposed conditions on Mr Vickery for sixmonths post-imprisonment which included a protection order. Mr Vickery appeals hissentence.Appeal[5] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there is a material error in the sentence and a different sentence should beimposed. The focus is on whether the end sentence is within the available range.[6] Mr Chamberlin, for Mr Vickery, submits the Judge erred in several waysmeaning the end sentence imposed was manifestly excessive. Mr Mortimer, for thePolice, does not oppose the appeal in one respect but does otherwise. I deal with eachissue in turn.Sentence for motor vehicle offence[7] Mr Chamberlin submits Mr Vickery's case is similar in nature to Kingi v Policeand R v R where, on appeal, the sentence for unlawfully taking a car belonging topeople known to the offenders were 80 hours of community work and payment ofwitness expenses, and a starting point of four months' imprisonment respectively.2 Hedistinguished Ben-Kimi v Police where the starting point of 10 months' imprisonmentfor taking a car was not interfered with on appeal.3 He submits a starting point of fourmonths' imprisonment would have been appropriate. Mr Chamberlin submits uplifts1 Police v Vickery [2019] NZDC 9184.2 Kingi v Police [2012] NZHC 1308 at [1], [26]; R v R [2012] NZHC 479 at [69].3 Ben-Kimi v R [2014] NZHC 3157.of three months' imprisonment for the secondary charges and for the previousconvictions were disproportionate. They were 50 per cent of the starting point and themaximum sentences for each of the secondary charges was three months. He submitsan uplift of one month for the secondary offending was warranted. He submitsMr Vickery's dishonesty convictions in West Australia were the only relevantconvictions and justified only a one-month uplift. Accordingly, he submits the endsentence for the lead offence of unlawfully taking a motor vehicle should have beenno more than four and a half months' imprisonment.[8] Mr Mortimer submits the end sentence of nine months' imprisonment waswithin the range available to the Judge. On the basis of Wood v Police and Muir vPolice, he submits the starting point of six months for unlawful taking was low, giventhe aggravating features.4 He says it could have been as high as 12 months and a four-month starting point for a standard offence where the maximum penalty is seven yearscannot be right. He submits the total uplift of three months for breath alcoholoffending and a serious instance of intimidation was well-justified. He submitsMr Vickery was fortunate not to be convicted of threatening to kill, with which he wasinitially charged. He acknowledges the three-month uplift for previous convictionsmay well be seen as high. But he submits the end sentence of nine months'imprisonment was not manifestly excessive.[9] Downs J's judgment in Wood v Police contains a useful overview of startingpoints for unlawfully taking a car. He states, "a single unlawful taking can give riseto a starting point of at least 18 months' imprisonment, if the offence has a significantaggravating feature or features".5 I agree there were aggravating features here, ofbreaching the trust of his partner's mother in taking the car and in pursuing someonehe had threatened to kill. The aggravating factors are not as serious as those in thecases Downs J reviewed, but the starting point is also significantly lower. I do notconsider the cases cited by Mr Chamberlin contradict that. I consider the starting pointwas well within the range available to the Judge and I consider it was generous.4 Wood v Police [2018] NZHC 1629; Muir v Police [2015] NZHC 1425.5 At [24].[10] I do not consider the uplift for the other offending was too high. Theintimidation was serious and that, together with the excess breath alcohol offence, wasproperly reflected in an uplift of three months, despite that being a high proportion ofthe starting point. The uplifts for the previous convictions were also high. But, asMr Mortimer submits, I consider the overall end sentence of nine months'imprisonment was not manifestly excessive for Mr Vickery who, with a lengthycriminal history, engaged in sustained domestic intimidation, stole a car to pursue hisvictim, drove it while heavily intoxicated and ended up in a confrontation with thePolice.Sentence for breath-alcohol offence[11] Mr Chamberlin submits a first-time excess breath alcohol offender is routinelydealt with by way of a fine and disqualification. He submits three months'imprisonment is unheard of for such an offence. But Mr Vickery has no means to paya fine. Mr Chamberlin submits conviction and discharge and disqualification wouldbe appropriate. Mr Chamberlin accepts Mr Vickery falls into the alcohol interlockregime but submits Mr Vickery is subject to a mandatory exception unders 65AB(2)(c) of the Land Transport Act 1998. Instead, he submits Mr Vickery shouldhave been disqualified from holding a driver's licence for six months and authorisedto apply for a zero-alcohol licence after that, as is required. Mr Mortimeracknowledges the alcohol interlock order was made in error and should be replacedwith an order authorising Mr Vickery to apply for a zero-alcohol licence after that.[12] I agree the alcohol interlock element of the sentence should be quashed.Instead I disqualify Mr Vickery from holding or applying for a driver's licence for sixmonths under s 56(3)(b) of the Land Transport Act. I also agree the three months'concurrent imprisonment sentence for a first-time excess breath alcohol offence isexcessive. I uphold that aspect of the appeal and reduce it to one month, concurrentlywith the other sentences. That will not make a difference to the overall sentence.Sentence for intimidation and protection order[13] Mr Chamberlin submits the sentence of three months for intimidation ismanifestly excessive and one month, concurrent with the lead charge, is appropriate.He submits the Judge did not have sufficient information to order a protection orderunder s 123B of the Sentencing Act 2002 because the original victim impact statementwas un-signed, the updating report did not address the issue and the victim has notsigned her most recent email. He submits for that reason the court should not giveweight to it under s 22B of the Victim Rights Act 2002.[14] Mr Mortimer applies to admit a recent updating email from the victim thismorning, reiterating her desire for the protection order. That is not opposed. I grantthe application. He accepts he is labouring under the disadvantage of the implicationof s 22B of the Victim Rights Act. But he submits the documentation provides a degreeof assurance the victim has been contacted. He submits the protection order is themost pressing concern of the Police and any shortcoming in the form of the evidencecan be remedied by remission to the District Court.[15] I do not interfere with the concurrent sentence of three months. Theintimidation was serious and could easily have resulted in more serious charges. Theprotection order I think was justified. I do not consider the Judge erred. I considerthe order was necessary to protect the victim here and there is no evidence she objectedto it. I do not rest that conclusion on the victim's reported views but on the summaryof facts which were the basis of the plea.Result[16] The overall result is that I uphold the appeal in the following respects:(a) I quash the alcohol interlock order and replace it with an orderdisqualifying Mr Vickery from holding or applying for a driver'slicence for six months as well as an order authorising Mr Vickery toapply for a zero-alcohol licence at the end of his period ofdisqualification if he wishes;(b) I quash the concurrent sentence of three months' imprisonment forexcess breath alcohol and instead impose a concurrent sentence of onemonth's imprisonment.[17] Otherwise I dismiss the appeal.Palmer J