Gregoriadis v Police [2011] NZCA 419 (29 August 2011)

Court of Appeal of New Zealand

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Gregoriadis v Police [2011] NZCA 419 (29 August 2011)

Last Updated: 8 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA393/2011 [2011] NZCA 419

BETWEEN NICHOLAS GREGORIADIS Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: 23 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: P D Watts and R R Ward for Applicant A D King and L C Preston for Respondent

Judgment: 29 August 2011 at 2.30 pm

JUDGMENT OF THE COURT

A The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The applicant pleaded guilty to driving with excess breath alcohol (third or subsequent occasion), driving whilst disqualified, and aggravated careless driving causing injury. He was sentenced by Judge Farish in the District Court to three years three months’ imprisonment. On appeal French J reduced the sentence to three years.
[2] The applicant sought leave of the High Court to appeal to this Court on a question of law. That was declined by French J. The applicant now seeks special leave to appeal to this Court.

Background

[3] On 18 September 2009 the applicant was disqualified from driving for a period of one year, three months in the Christchurch District Court. It was his fifth such offence. On 20 February 2010 he was driving in breach of the disqualification and in excess of the speed limit on Salisbury Street, Christchurch. A police patrol activated its lights and followed him. To evade the police the applicant travelled through a red light at the intersection of Salisbury and Madras Streets striking a Mazda car travelling north on Madras on a green light. The driver of the Mazda, a 63 year old paraplegic, was injured. The applicant failed to stop and ascertain if the victim was injured. He continued to drive, at high speed, to his home. The police located him shortly thereafter and identified him as the driver. An evidential breath test returned a result of 922 micrograms of alcohol per litre of breath.
[4] Judge Farish imposed a sentence of 21 months’ imprisonment on the aggravated careless driving causing injury charge and added a cumulative sentence of 18 months on the other two charges. She also ordered reparation and disqualified the appellant.
[5] On appeal, French J reduced the sentence by three months. The Judge’s reason for doing so was that Judge Farish had failed to have regard to the totality principle:[1]

[30] Where, however, I think Mr Watts is on stronger ground is that the Judge has failed to have regard to the totality principle in imposing cumulative sentences. As I have said, the Judge cannot be criticised for the imposition of cumulative sentences, but having made the decision to approach the sentencing in that way, it was incumbent on her to apply the totality principle. She was required to look back and see whether the total sentence of three years, three months was a proportionate response to the overall gravity of the offending.

[31] In my view, looking at the overall criminality, a sentence of three years, three months could fairly be said to be out of line. I fully endorse all of the sentiments expressed by the Judge, but in my view, in order to achieve consistency and follow case law, I am constrained to hold that a sentence of three years, three months was manifestly excessive.

The application for special leave

[6] The application for special leave is pursuant to s 144(3) of the Summary Proceedings Act 1957. The applicant must satisfy this Court that there is a question of law, which, by reason of its general or public importance or for any other reason ought to be submitted to this Court.[2]

Decision

[7] The question of law the applicant seeks to advance is:

Having declared that the sentence was manifestly excessive did the [High Court] Judge give the appropriate reduction having regard to the plain meaning of the phrase “manifestly excessive”, the hierarchy of sentencing and the policy of sentencing enshrined in the legislation and case law?

[8] The applicant seeks to argue that, having found the sentence of the District Court was manifestly excessive the Judge failed to give effect to that by only reducing the sentence by three months, a little less than eight per cent of the sentence. Mr Watts submitted that was no more than “tinkering” with the sentence which could affect public confidence in the judicial system.
[9] While French J referred to the sentence as manifestly excessive, it is apparent the Judge allowed the appeal on the grounds the District Court Judge had failed to have regard to the totality principle in imposing the cumulative sentences. Essentially the Judge identified an error of principle by the District Court Judge by failing to take account of that totality principle. That error justified the adjustment French J made to the sentence.
[10] The hierarchy of sentencing does not arise in this case. Mr Watts accepted a term of imprisonment was available as a sentence. Given the offending in this case and the applicant’s record, a sentence of imprisonment was inevitable.
[11] French J’s decision does not raise any issues regarding policies of sentencing arising from the legislation and case law. Sentencing is an exercise of a judicial discretion informed by the Sentencing Act 2002 and case law. French J was quite entitled, in the exercise of her discretion, to adjust the sentence to address the error she had identified.
[12] The proposed question does not raise any arguable question of law.
[13] Even if it did, the question of law it is not one which has any general or public importance requiring it to be submitted to this Court. The Judges in the District Court and High Court considered the factual circumstances of the applicant and the principles relating to sentencing for similar offences. The approach of the Judges in both Courts was orthodox. The outcome of this case depended entirely on the particular circumstances of the offending and the applicant’s personal circumstances.
[14] The application for special leave to appeal is without merit. It is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Gregoriadis v Police HC Christchurch CRI-2011-409-21, 23 March 2011.
[2] R v Slater [1997] 1 NZLR 211 at 215 (CA).