Sutherland v Police [2022] NZHC 2399 (19 September 2022)

Last Updated: 7 October 2022

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-425-10 [2022] NZHC 2399

BETWEEN	JAMIE MATHEW SUTHERLAND Appellant
AND	NZ POLICE Respondent

Hearing:	19 September 2022
Appearances:	J A T Ross for Appellant M B Brownlie for Respondent
Judgment:	19 September 2022

ORAL JUDGMENT OF OSBORNE J

This judgment was delivered by me on 20 September 2022 at 9.30 am

Registrar/Deputy Registrar Date:

SUTHERLAND v NZ POLICE [2022] NZHC 2399 [19 September 2022]

The sentence under appeal

• [1] On 17 January 2022, Jamie Sutherland pleaded guilty to and was convicted of one charge of driving a motor vehicle in a manner which was dangerous to the public,¹ one charge of refusing to accompany without delay an enforcement officer to a place when required to do so,² and one charge of failing to remain stopped when stopped by an enforcement officer.³ On 28 March 2022, Judge Walker sentenced Mr Sutherland to pay $2,500 in fines. He ordered him to pay $390 in court costs and Mr Sutherland was disqualified from holding or obtaining a driver licence for 18 months.⁴

• [2] He appeals against the period of disqualification. Mr Ross, for Mr Sutherland, submits the appropriate period was 12 months.

The facts of the offending

• [3] Mr Sutherland was driving in Queenstown. He failed to give way to a Police vehicle as he turned left onto a different road. He was followed by Police flashing their red and blue lights and stopped. Mr Sutherland was required to undergo a breath screening test which provided a positive result of alcohol over 250 micrograms.

• [4] Mr Sutherland was then required to accompany Police to the station for the purpose of an evidential breath test. He refused to do so and said he would follow Police in his own vehicle. Police warned him that refusing to accompany them would result in his being arrested. He persisted in his refusal to accompany them to the station.

¹ Land Transport Act 1998, s 35(1)(b): maximum penalty three months’ imprisonment or a fine of

$4,500, and a mandatory disqualification from holding or obtaining a driver licence for six months or more.

2. Section 59(1)(b): maximum penalty a fine of $4,500 and a disqualification from holding or obtaining a driver licence for such a period as the court thinks fit.
3. Sections 52A(1)(b) and 114: maximum penalty a fine of $10,000 and a mandatory disqualification of six months.
4. New Zealand Police v Sutherland [2022] NZDC 12479. The totals derive from the Judge’s separate sentences:

(a) for dangerous driving: $1,500 plus $130 court costs, and 12 months’ disqualification;

(b) for refusing to accompany: $500 plus $130 court costs and six months’ disqualification concurrently; and

(c) for failing to stop: $500 plus $130 court costs, and six months’ disqualification cumulative on the 12 months’ disqualification.

• [5] Mr Sutherland then reached for the keys in the ignition of his car in an attempt to turn the car back on. He was arrested. After a short struggle with the officer, he successfully turned the car on. Officers opened the driver’s-side door of his vehicle. Mr Sutherland responded by accelerating away from Police, driving erratically and at speed. Police did not pursue him because of the risk his driving posed to the public.

• [6] Mr Sutherland narrowly missed hitting another person’s vehicle as he pulled out and fled. He subsequently failed to negotiate a left-hand turn due to the speed at which he was travelling. He lost control of the vehicle while negotiating that bend. He skidded across the centre line and crashed his vehicle. His car was extensively damaged. Mr Sutherland left the scene.

• [7] About an hour later, Mr Sutherland was in contact with the Police. The Police summary said that he had contacted the Police. He corrected that in the course of sentencing to the Police having contacted him. He said to the Police that he was remorseful. He said he panicked because he did not want to go back to prison. He agreed to meet Police and was taken into custody. He was cooperative with Police for the remainder of the procedure. The eventual evidential breath test provided a result of 198 micrograms of alcohol per litre of breath.

The District Court decision

• [8] At sentencing Mr Ross appeared for Mr Sutherland, having not previously been his counsel.

• [9] The Judge began his sentencing remarks by summarising the facts of Mr Sutherland’s offending.

• [10] The Judge noted that Mr Sutherland had 30 previous convictions over a period of 22 years, but only one (in 2007) for driving offending. The Judge found Mr Sutherland to be unsuitable for community work with any agency in Queenstown by reason of a previous conviction for arson. The Judge also noted that Corrections were not sure that supervision would be a beneficial sentence because Mr Sutherland denied having any problems with alcohol and said he would if ordered to undertake drug and alcohol counselling do so only reluctantly.
• [11] The Judge considered the fact that Mr Sutherland’s driving had put other road users at actual risk as an aggravating feature of his offending.

• [12] The Judge recognised as mitigating features of Mr Sutherland his guilty pleas and his contacting the Police quickly after the offending.

• [13] The Judge noted that, but for the comments in the pre-sentence report, he would have not dealt with the offending through fines but he would however impose fines that reflected the seriousness of Mr Sutherland’s offending.

Principles on appeal

• [14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁵ As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁶ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁷

Submissions

Appellant’s submissions

• [15] Mr Ross, again for Mr Sutherland on appeal, submitted the total 18-months’ disqualification period was clearly excessive, and the disqualification should have been no longer than 12 months. He noted the disqualification period imposed for the dangerous driving charge was twice the mandatory minimum period. He submitted that neither Mr Sutherland’s conduct nor his driving record were bad enough to

⁵ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁶ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

⁷ Ripia v R [2011] NZCA 101 at [15].

warrant such a disqualification period. He also submitted that the Judge should also have considered totality principles.

• [16] Mr Ross cited the decisions of this Court in Robarts v Police, Richmond v Police and Kelly v Police.⁸

Respondent’s submissions

• [17] Mr Brownlie, for the Police, submitted the disqualification period was not manifestly excessive. He noted the Police could not follow Mr Sutherland due to the risk of his driving to the public. The Judge was required to order Mr Sutherland to be disqualified for six months in respect of the charge of failing to remain stopped.⁹ Mr Brownlie noted that six months’ disqualification for that charge under s 52A(6) Land Transport Act 1998 must be cumulative on any other disqualification imposed. He submitted that the focus of the appeal should not be on the totality of the twelve and six months’ periods, but rather on whether the period of disqualification for the charge of dangerous driving was manifestly excessive.

• [18] For the appropriateness of the twelve months’ disqualification period for the dangerous driving charge, Mr Brownlie drew support particularly from this Court’s decision in Lester v Police.¹⁰

• [19] He submitted that the sentencing Judge was clearly cognisant of the totality of the period of disqualification as between the charges of dangerous driving and of refusing to accompany because the Judge imposed one of those disqualification periods concurrently.

Analysis

• [20] This appeal was filed out of time because of complications with obtaining legal aid. The Police do not oppose the appeal proceeding. Leave to appeal will be granted.

⁸ Robarts v Police [2014] NZHC 666; Richmond v Police [2019] NZHC 2001; and Kelly v Police

[2020] NZHC 972.

⁹ Land Transport Act, s 52A(1)(b): see above n 3.

¹⁰ Lester v Police [2020] NZHC 1794.

• [21] The first issue is whether the appeal should progress based on a consideration that the total sentence was manifestly excessive and failed to take into account totality, or whether it should progress on the basis that the sentence for the dangerous driving charge was manifestly excessive. It had been noted by Ellis J in Robarts v Police, as cited for Mr Sutherland, that totality principles remain relevant regardless of the ability to impose cumulative sentences and the requirements of a cumulative sentence under s 52A.¹¹ I agree that the totality of the sentence therefore is to be considered.

• [22] That said, there is a mandatory total minimum disqualification period for Mr Sutherland arising from two of his offences. The dangerous driving conviction required disqualification for at least six months.¹² The conviction for failing to stop required an additional (cumulative) disqualification of at least six months.¹³ Therefore, the minimum total period for which Mr Sutherland could have been disqualified was 12 months.

• [23] The appeal was pursued on the basis that the period of disqualification was inconsistent with case law. The cases cited by the appellant and respondent were:

(a) Robarts v Police:¹⁴ Mr Robarts was convicted of two charges of dangerous driving, two charges of failing to stop, one charge of wilful damage and one charge of excess breath alcohol (under 20). Mr Robarts drove away from Police after they had flashed their red and blue lights. He initially drove at approximately 80 km/h in a 50 km/h zone. He overtook vehicles erratically on the wrong side of the road. He increased his speed to 100 km/h and crashed into a parked car. He then ran away from Police. In another incident, Mr Robarts drove away from Police after they activated their red and blue lights when they tried to do a breath screening test. Police gave chase, and Mr Robarts drove away at approximately 100 km/h. Mr Robarts then deliberately reversed his car into the Police car, and attempted to do this again.

¹¹ Robarts v Police, above n 8, at [23]. Her Honour referred to s 52 in her judgment, as it then was. That part of the former s 52 (s 52(3)–(5) has now been incorporated into s 52A: see ss 40–41 of the Land Transport Amendment Act 2017.

¹² Land Transport Act, s 35(2)(b).

¹³ Section 52A(3) and (6).

¹⁴ Robarts v Police, above n 8.

When he was eventually found, his breath alcohol level was above that of an under-20 year old, but under the limit for an adult. Mr Robarts was disqualified for 21 months, which was reduced to 16 months on appeal. The Judge on appeal took account of Mr Robarts’ youth and the other sentences imposed on him of 240 hours’ community work, 18 months’ intensive supervision and a payment of $5,690 in reparation.

(b) Richmond v Police:¹⁵ Mr Richmond pleaded guilty to charges of threatening to kill, dangerous driving, failing to stop and failing to answer court bail. For the driving offending, Mr Richmond accelerated away from Police when they flashed him with their red and blue lights. There was an hour-long car chase, regularly above the speed limits. Mr Richmond often drove on the wrong side of the road. Part way through, Mr Richmond swapped to the passenger’s seat and his associate drove the car. The chase stopped when the car crashed into a fallen pine tree, and then Mr Richmond and his associate fled into the forest. The period of disqualification was lowered on appeal from 18 months to nine months. The Judge’s main reasoning for this was to achieve parity between his sentence and his associate’s sentence of six months’ disqualification.

(c) Kelly v Police:¹⁶ Mr Kelly was convicted of a charge of wilfully attempting to defeat the course of justice, two charges relating to an unlawful use of radio equipment, a charge of dangerous driving and a charge of driving while suspended. One driving incident related to his driving his vehicle on the wrong side of the road at approximately 90- 100 km/h towards a Police officer. The officer had to take evasive action. Mr Kelly did not stop when the officer followed him with his lights flashing. Mr Kelly drove at approximately 200 km/h and swerved onto the wrong side of the road. The constable abandoned the pursuit. On appeal, the Judge considered that a starting point of 12 months for the dangerous driving charge was appropriate, with a six-

¹⁵ Richmond v Police, above n 8.

¹⁶ Kelly v Police, above n 8.

month uplift to reflect the fact that this was his third offence. The Judge did not consider there needed to be an uplift to account for Mr Kelly failing to stop,¹⁷ as that was reflected in the penalty for defeating the course of justice.

(d) Lester v Police:¹⁸ Mr Lester was convicted of careless driving, dangerous driving, failing to stop, and a number of property and drug offences. He had travelled in the wrong lane on the motorway. He braked suddenly when a car approached him head on in that lane. He moved into the left lane and hit the left metal crash cushion. The Police activated their lights to signalled him to stop. He accelerated away and drove at speed despite the road being narrow, minimally lit, winding, up a hill and bordered by trees. He crashed into a tree. He was unable to remove himself from the vehicle. The Judge on appeal accepted that a period of 18 months disqualification was appropriate. It had been a dangerous chase. The Judge found a period of disqualification over the minimum 12 months was required. This also took into account that for four months of the disqualification Mr Lester would be in prison.

• [24] Another case of assistance is Stewart v Police.¹⁹ Ms Stewart was charged with possession of methamphetamine utensils, driving while impaired, operating a motor vehicle carelessly, dangerous driving and driving while suspended. She drove while impaired and drove erratically. She continually crossed the centre line and travelled into the left-hand bus lane, narrowly missing other vehicles. She drove similarly twice more, although there was no evidence of her then being impaired. She hit a concrete barrier and a pole in the process. For the latter two occasions, Ms Stewart was charged with careless driving. She was convicted on all charges. She was sentenced to 12 months’ supervision and was disqualified for two years. On appeal, the disqualification period was reduced to 18 months — the Judge on appeal found a period of two years was manifestly excessive, but there needed to be an uplift on the

¹⁷ Mr Kelly was charged with wilfully attempting to defeat the course of justice instead of failing to stop when he sped away from the police officer. This has a higher maximum penalty for imprisonment, but does not require a mandatory disqualification.

¹⁸ Lester v Police, above n 10.

¹⁹ Stewart v Police [2017] NZHC 2775.

dangerous driving conviction from the mandatory disqualification period of six months.

• [25] The offending in Robarts v Police was more serious than in this case. There were two separate incidents leading to two convictions of dangerous driving and there was the aspect of Mr Robarts deliberately ramming Police cars. But the two cases in my view do have comparable features otherwise. Additionally, Mr Robarts was ordered to undertake 240 hours of community work. Mr Robarts’ period of disqualification was adjusted, as I have noted, on appeal to a total of 16 months. Of that, ten months related to the dangerous driving charges (six months on one, four months on the other). In fact, Mr Brownlie has noted, the second period of disqualification ought to have been the same minimum of six months as required under the legislation. That would have led to a total of 18 months’ disqualification.

• [26] Furthermore, at the time of Mr Robarts’ sentence, the mandatory minimum period of disqualification for failing to stop was three months, rather than six as the law now stands. (Mr Robarts was convicted of two incidents of failing to stop). His period of disqualification was discounted for his youth. With the minimum period as it now stands, Mr Robarts’ convictions, if arising today, and adjusted to take account of the required six months of disqualification on each dangerous driving charge, would have been significantly more than 18 months.

• [27] Apart from Robarts, I also find the total sentence of 18 months’ disqualification imposed on Mr Sutherland to have been within the range, albeit at the uppermost end of the range, that is supportable when cases such as Lester, Kelly and Stewart are considered.

• [28] Mr Sutherland’s offending in this case was serious. The Police had to discontinue the chase because of the danger it posed to the public. Mr Sutherland almost hit another car when fleeing. Mr Sutherland eventually crashed his own car in the course of executing a turn at speed. It was by luck, not Mr Sutherland’s management, that no one else was hurt through his driving and, as Mr Brownlie noted, but for Mr Sutherland’s crashing his car, it can be anticipated that the driving in the way he was doing so would have continued appreciably longer.
• [29] The primary purpose of a disqualification is to protect the public, while also reflecting the seriousness of the offending.²⁰ In reflecting the seriousness of Mr Sutherland’s offending, it is important to consider Mr Sutherland’s total sentence. In this case (unlike Robarts), the only sentences other than disqualification imposed on Mr Sutherland were fines. Fines represent the second lowest sentence in the hierarchy of sentences, above only a discharge or order to come up for sentence if called upon.²¹ The sentencing Judge was clearly minded to sentence Mr Sutherland to community work, which would have been called for in terms of the gravity of the offending, but that was not possible in his case. Mr Sutherland was fortunate that he received only fines in addition to his period of disqualification. The fact that Mr Sutherland did not receive a sentence of community work meant that it was appropriate that the Judge, in reaching an appropriate period of disqualification, adjusted that period to account for the seriousness of the offending.

• [30] Even had the 18 months’ period of disqualification been excessive standing alongside a sentence such as community work (which I do not consider it would have been), it was certainly within range when the accompanying penalties were fines only.

Outcome

• [31] I grant Mr Sutherland leave to appeal.

• [32] The appeal is dismissed.

Osborne J

Solicitors:

J A T Ross, Barrister, Invercargill Crown Solicitor, Invercargill

²⁰ Tohu v Police [2015] NZHC 2009 at [27].

²¹ Sentencing Act 2002, s 10A.