Mehrtens v Police HC Christchurch CRI 2011-409-000071 [2011] NZHC 1606 (19 August 2011)

Last Updated: 22 November 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI 2011-409-000071}

DEAN RICHARD MEHRTENS

Appellant

v

POLICE

Respondent

Hearing: 19 August 2011

Counsel: A M McCormick for Appellant

M Zintl for Respondent

Judgment: 19 August 2011

_{JUDGMENT OF FOGARTY J}

[1] This is an appeal against a judgment of Judge Erber sitting in the District Court, imposing a sentence of imprisonment, on a burglar who went on a spree, to imprisonment for two years nine months and to a term of 12 months’ disqualification from driving a motor vehicle starting from the date of sentence.

[2] There is no appeal against the prison term. The appeal is against the disqualification. There is no doubt the Judge had the jurisdiction to impose that disqualification because the burglaries were carried out with the assistance of the use of a car. The critical paragraph of the Judge’s reasoning is paragraph [17]:

[17] Having regard to the term that you will have to serve in any event and the matter having to go before the Parole Board a disqualification of

_{12 months may not actually have a particularly considerable effect upon you}

MEHRTENS V POLICE HC CHCH CRI 2011-409-000071 19 August 2011

because you are unlikely to be in prison for 12 months. The disqualification commences from today.

[3] Having studied that paragraph I am satisfied that the Judge would have said or was intending to say “you are to be in prison for 12 months”. Otherwise, the sentence does not make sense. Taking that construction it seems to me that the Judge would have been perfectly aware that the sentence of 13 months would result in an entitlement to parole at the end of 11 months but was forming a judgment that he was likely to be in prison for 12 months. So the Judge clearly had in mind that this penalty of disqualification from driving would likely be served during the period of imprisonment.

[4] This appeal is really motivated by the fact that the appellant is a professional driver and had been assigned work in prison driving trucks and heavy machinery. The Corrections Department then became aware of his disqualification. The real goal of this appeal is to have the disqualification removed so that he can get back to the work he was deployed upon at prison.

[5] I have considered reducing the period of disqualification to 11 months but having studied paragraph [17] of the judgment, I am of the view that Judge Erber did intend to run the risk that he might be released at 11 months but considered that risk low. Certainly, there is nothing in the judgment which would suggest that Judge Erber intended in any way to harm the prospects of this man getting employment upon release. Getting employment upon release is always a goal of the Parole Board in order to facilitate the offender’s re-introduction into the community.

[6] Mr Zintl cautioned me against tinkering with the decision. I need to be satisfied there is an error in principle or that the decision is manifestly wrong. Having analysed the judgment of Judge Erber I can see neither error and I am not going to tinker. I think the judgment that the Judge made was one well within his discretion in light of the facts of this case.

[7] Accordingly the appeal is dismissed.

Solicitors:

Brandts-Giesen McCormick, Rangiora, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent