YAN v NZ POLICE [2017] NZHC 1435

YAN v NZ POLICE [2017] NZHC 1435 [27 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000132CRI-2017-404-000133[2017] NZHC 1435IN THE MATTER OF an appeal against sentenceBETWEEN TO YANAppellantAND NEW ZEALAND POLICERespondentHearing: 19 June 2017Counsel: P J Kaye for the AppellantG A Barkle for the RespondentJudgment: 27 June 2017JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 27 June 2017 at 11.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: P J Kaye, AucklandSolicitors: Meredith Connell, AucklandIntroduction[1] Mr Yan appeals against his sentence of 16 months' imprisonment for thefollowing charges:(a) Two charges of driving while suspended or revoked (third orsubsequent);1(b) One charge of driving while suspended or revoked;2(c) One charge of possession of a class A drug (methamphetamine);3(d) One charge of possession of utensils;4(e) One charge of driving while impaired.5[2] The appeal originally extended to a second one month cumulative sentenceimposed for other driving and drugs charges. The appeal grounds advanced alsoincluded an error by the District Court Judge in not imposing home detention, and afailure to apply the full 25 per cent discount for the guilty pleas.[3] However, by the time of the hearing, the appeal grounds had narrowed. Theappeal was only advanced in respect of the first sentence of 16 months' imprisonment,and is confined to claims that the starting point adopted was too high and the upliftswere excessive.1 Land Transport Act 1998, ss 32(1)(c) and 32(4). Maximum penalty two years' imprisonment or afine not exceeding $6,000.2 Land Transport Act 1998, ss 31(1)(c) and 32(3). Maximum penalty three months' imprisonmentor a fine not exceeding $4,500.3 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2). Maximum penalty six months' imprisonment.4 Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3). Maximum penalty one year's imprisonment.5 Land Transport Act 1998, s 57A(1). Maximum penalty three months' imprisonment or a fine notexceeding $4,500.The offending[4] The charges relate to two separate sets of offending. The first set occurred inApril 2016. Mr Yan was charged with driving whilst suspended (third or subsequent)on 18 April 2016. This was his seventh offence of this nature. On 27 April 2016, hewas charged with driving whilst suspended. It appears that it was an oversight that hewas not charged with the more serious third or subsequent offence at this time, becausethis was the eighth charge of this nature.[5] The second, and more serious, set of offending occurred on 31 August 2016.Mr Yan was stopped by police due to his erratic driving. He was charged with drivingas a suspended driver (third and subsequent) – his ninth such offence. Subsequenttesting revealed the presence of methamphetamine in his blood, and he was chargedwith driving while impaired. Mr Yan was also found to be in possession ofmethamphetamine and a methamphetamine pipe on this occasion. The Augustoffending was committed whilst the April charges were still before the Court.[6] Mr Yan's criminal history includes a number of driving related and drug relatedconvictions. As already noted, the April offending involved the seventh and eighthdriving while suspended (third or subsequent) offences. The August offendingrepresented the ninth conviction of this type.[7] In addition, Mr Yan has a number of convictions for being an unlicensed driverand failing to comply with a prohibition, operating a vehicle carelessly, driving a motorvehicle in a dangerous manner, and failing to stop when followed by red and blueflashing lights.[8] Mr Yan also has a number of drug related convictions, including possession ofmethamphetamine utensils, production and manufacture of ecstasy, possession ofcannabis, and possession of ecstasy.District Court sentence[9] Mr Yan appeared for sentence in the Auckland District Court on 20 February2017.[10] The District Court Judge took the August offending as the lead charges. Hereferred to the case of Apiata v Police, in considering an appropriate starting point.6That case concerns the approach to be followed in cases involving multiple charges ofdriving whilst disqualified (third and subsequent), where there is prior history of suchconvictions.[11] The Judge adopted a starting point of 12 months' imprisonment for all of theAugust offending, that is, including the drug related offending committed that sameday. He then applied an uplift of six months for the 18 April 2016 offence, and afurther uplift of two months for the 27 April 2016 offending. That brought the totalstarting point to 20 months' imprisonment.[12] The Judge found there to be no other aggravating factors or mitigating factorsof the offending. The only personal mitigating factor was the guilty pleas. He alloweda credit of four months for that plea (approximately 20 per cent) to reach an endsentence of 16 months' imprisonment.Approach to appeal[13] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[14] In any other case, the Court must dismiss the appeal.7 An appeal court will notintervene unless there is a material error, and if so, the appeal Court will then go on toform its own view of an appropriate sentence.86 Apiata v Police [2016] NZHC 3119.7 Criminal Procedure Act 2011, s 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].Was the starting point too high and the uplifts excessive?[15] I have approached this question by:(a) considering the appropriate starting point for all of the driving whilstdisqualified or suspended charges; and then(b) considering the appropriate uplift for the balance of the offending.[16] As noted in Keenan v Police, and Opetaia v R, there appears to be two differentapproaches to setting a starting point for multiple charges of driving whilst disqualified(third or subsequent).9 The first approach involves setting a starting point for the indexoffending, and then uplifting it for prior charges, and prior relevant convictions.10 Thesecond approach involves setting a starting point which reflects the degree ofrecidivism inherent in the charge.11 A starting point is fixed which reflects both thenumber of charges and the number of relevant prior convictions. Uplifts for the othercharges for sentence are then applied. As Dunningham J noted in Keenan v Police,both approaches should result in the same starting point.12[17] In assessing the relevant starting point, I apply the second approach and notethe following:(a) There were three charges before the Court for sentencing. Theyrepresent charges 7 to 9 for this type of offending (with the proviso thatthe 27 April 2017 charge is a lesser offence, having not been chargedas a third and subsequent offence).(b) There was only a matter of months between the April and August 2016offending. The next most recent charge occurred in 2010, with two9 Keenan v Police [2014] NZHC 1894 at [20]–[23]; and Opetaia v Police [2015] NZHC 2532 at[36].10 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009, endorsed in Keenan vPolice, above n 9, at [23].11 Drinkwater v Police [2013] NZHC 1936, endorsed in Maxwell v Police [2013] NZHC 3172; Sykesv Police [2014] NZHC 2642; and Apiata v Police, above n 6, at [15].12 Keenan v Police, above n 9, at [20]–[22].charges in 2009, and three in 2008. The total period of offending spansnine years.(c) As the 31 August 2016 driving charge involves the greatest extent ofrecidivism, being the ninth charge of this type, I fix a starting point forthat charge first, with uplifts to be applied for charges 7 and 8.[18] In Whitley v Police, a starting point of 10 months for charge 11 was adoptedon appeal, with two uplifts of four months each for the other charges.13 That led to astarting point of 18 months. In Opetaia, a 10 month starting point for the eighth chargewas selected, with a three month uplift applied for each of charges 5, 6 and 7.14[19] On the basis of those cases, and the others set out in the schedule to Apiata, Iconsider a starting point of 10 months for the ninth charge on 31 August 2016 wasappropriate. I apply an uplift of three months for the first of the April charges, and anuplift of one month for the 27 April 2016 charge (which reflects the lesser chargehaving been laid). That brings the starting point for the driving whilst disqualifiedoffences to 14 months.[20] An uplift must then be applied for the balance of the August offending, that is,the possession of methamphetamine and utensil charges, and the charge of drivingwhile impaired. I consider an uplift of between two and four months is justified forthat offending. That would bring the total starting point to within the range of 16 to18 months' imprisonment which is just under the starting point of 20 months'imprisonment adopted by the Judge.[21] However, whilst the prior convictions for driving whilst suspended ordisqualified have already been taken into account in setting a starting point for thoseoffences, a further uplift for prior drug offending and other driving related offencescould have been applied. Mr Yan has five relevant drug related offences and a numberof other driving related offences. A further uplift of between one to two months forprior relevant convictions was also available in my view. That would lead to a notional13 Whitley v Police [2016] NZHC 1025.14 Opetaia v Police, above n 9.sentence of between 19 to 21 months' imprisonment, before credit for the guilty pleawas applied.[22] The Judge's starting point of 20 months, although arrived at by a differentroute, is accordingly within range. There is no challenge to the adjustments made bythe Judge. I am satisfied that the Judge did not err and that the sentence imposed wasnot manifestly excessive. The appeal must therefore be dismissed.Result[23] The appeal is dismissed.Edwards J