J ROES V NEW ZEALAND POLICE HC AK CRI 2009-404-000171 [2009] NZHC 814 (14 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CRI 2009-404-000171



                                    JOHANNUS ROES
                                       Appellant



                       
                          v



                                NEW ZEALAND POLICE
                                     Respondent



Hearing:         14 July 2009

Appearances: J J Corby for the Appellant
             N M H Whittington for the Respondent

Judgment:
       14 July 2009


                          [ORAL] JUDGMENT OF WYLIE J
                              [Appeal against sentence]




Solicitors:

J J Corby, Barrister, P O Box 105 495, Auckland
Crown Solicitor, P O Box 2213, Auckland


J ROES V NEW ZEALAND POLICE
HC AK CRI 2009-404-000171 14 July 2009

[1]    The appellant, Mr Roes was sentenced to 6 months' imprisonment and
disqualified for
driving for 12 months after pleading guilty to various charges laid
against him. He was sentenced by Judge E P Paul in the District
Court at Papakura
on 4 June 2009. The charges to which Mr Roes pleaded guilty were driving while
his licence was suspended, driving
while suspended on a third or subsequent
occasion (there were three charges in this regard), failing to return his licence,
providing
false information, and failing to supply particulars.


[2]    The driving related offending occurred on a number of occasions, namely
11
September 2008, 25 October 2008, 2 November 2008 and 18 January 2009.


[3]    Mr Roes lodged a notice of appeal on 4 June 2009.
The appeal is against
sentence only. He asserts in the notice of appeal that the District Court Judge erred
in fact and law in sentencing
him.


[4]    Mr Corby appearing for Mr Roes has submitted that the sentence of
imprisonment was manifestly excessive given Mr Roes
particular health
circumstances.


[5]    Mr Roes suffers from poorly controlled insulin dependent diabetes. His
condition has deteriorated
in recent years and he has had surgery to excise and
debride a wound to his foot. It is clear from the materials which have been
put
before me that Mr Roes is having difficulty adjusting to the significant loss of
function he is experiencing and that he can
react inappropriately.


[6]    Mr Corby on his behalf suggested that in the circumstances the sentence
imposed by Judge Paul was
disproportionately severe on Mr Roes, and that the
Judge should have imposed the least restrictive outcome that was appropriate in
the
circumstances. He relied on s 8(g) and (h) of the Sentencing Act 2002.


[7]    Mr Whittington, appearing for the Police, noted
that Mr Roes has a long
criminal history going back to 1973. He has 12 previous convictions for driving
while disqualified. In addition,
he has committed other driving related offences and
various dishonesty offences. He has been sentenced to imprisonment before for

driving while disqualified ­ in August 1999 ­ and over the years he has faced the full
gamut of sanctions available to the Court.
He submitted that Mr Roes' history
tended to indicate a blatant lack of consideration for others, and a disregard for the
safety
of other road users and for the authority of the Court. Mr Whittington
suggested that there was no error in principle in the Judge's
approach, and that the
end sentence fixed by him was not manifestly excessive.


[8]    Judge Paul, in his sentencing notes, recorded
the factual background. He
referred to Mr Roes' current medical condition and he discussed whether or not a
sentence of home detention
would be appropriate. He considered that Mr Roes is
unlikely to be compliant and that a sentence of home detention was likely to
set him
up to fail. The Judge concluded that the only realistic option open to him was a
sentence of imprisonment.


[9]    Judge
Paul adopted a starting point of 6 months' imprisonment. He imposed
an uplift to take account of Mr Roes' criminal history, and the
fact that several of the
offences in respect of which he was being sentenced were committed while he was
on bail or subject to a sentence of community
work. He allowed a discount of 2
months for Mr Roes' guilty plea, but that discount was cancelled out by the uplift
applied by the
Judge.


[10]   Having considered the Judge's sentencing notes, it is clear to me that
Mr Roes' medical condition was discussed before
and considered by Judge Paul.
There were various reports from Mr Roes' medical specialists available to the Judge.
Mr Roes' medical
condition was referred to in the pre-sentence report, and the Judge
stood the matter down on two occasions to enable him to read
and digest all the
relevant information which had been put before him.


[11]   I cannot conclude that the Judge erred in principle.


[12]   I accept that a sentence of imprisonment will be hard on Mr Roes, but in my
view the alternative of community work or community
detention, or a combination
of both, would not satisfy the purposes and principles of sentencing set out in ss 7
and 8 of the Act.
Mr Roes is a man who has offended consistently over the years.

He has repeatedly failed to show any respect for the road rules,
or the land transport
enforcement regime set up in this country. He has failed to comply with numerous
Court orders. In my view the
Judge had no alternative but to sentence Mr Roes to a
term of imprisonment for the purposes of denunciation and deterrence.     
         A
community based sentence would have failed to hold Mr Roes accountable for the
harm done to the community by his offending,
and it would not have promoted in
him a sense of responsibility for and acknowledgement of that harm.


[13]   Further, I cannot
conclude that the sentence was manifestly excessive. I note
that there are a number of cases where offenders have been sentenced
to very much
longer terms of imprisonment in not dissimilar circumstances. I refer by way of
example to R v Butterfield CA 100/97,
23 July 1997, Gibson v Police HC ROT CRI
2007-470-20, 18 May 2009, Lang J, and Lee v Police HC AK CRI 2006-4040-
000251, 24 August
2006, Venning J. I accept that Mr Roes has a medical condition,
and I have sympathy for him in that regard. Nevertheless in my view
that condition
was before Judge Paul, and it was taken into account by him in imposing what, in the
circumstances, was a relatively
lenient sentence.


[14]   The appeal is dismissed.




                                               Wylie J