Sykes v Police [2014] NZHC 2642 (28 October 2014)

Last Updated: 7 November 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-91 [2014] NZHC 2642

BETWEEN	GREGORY PAUL SYKES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 October 2014
Appearances:	A James for Appellant AMS Williams for Respondent
Judgment:	28 October 2014

_{JUDGMENT OF MANDER J}

[1] Mr Sykes was apprehended driving a motor vehicle whilst disqualified. The entry of a conviction for this latest episode represents Mr Sykes 40^th conviction for driving while disqualified between 1976 and 2005.

[2] In sentencing Mr Sykes, Judge Couch took a starting point of 21 months imprisonment. An uplift of three months was added for Mr Sykes previous offending which included 14 convictions for alcohol-related driving, and the fact that he was subject to release conditions at the time of the offending. Credit was extended for Mr Sykes prompt guilty plea, resulting in a sentence of 18 months imprisonment.

[3] Mr Sykes appeals the length of sentence on the basis it was manifestly excessive. In support of that ground, it was submitted that the starting point of

21 months was too high and that the sentencing Judge had failed to take into account personal mitigating circumstances which should have otherwise reduced the sentence. A contention that Judge Couch had not properly considered the discretion

_{available to him under s 94 of the Land Transport Act 1998 was abandoned.}

SYKES v NEW ZEALAND POLICE [2014] NZHC 2642 [28 October 2014]

Starting point

[4] On behalf of Mr Sykes it was submitted that a starting point of no more than one year was appropriate. It was emphasised that, apart from the act of driving while disqualified, no other aggravating factors applied. Mr Sykes was cooperative when apprehended and there were no aspects of his driving which caused concern.

[5] While the very large number of previous convictions for driving while disqualified was acknowledged, it was submitted that it had been over eight years since Mr Sykes had offended in this way. Reference was made to Peterson v Police,¹ where Duffy J allowed an appeal against a sentence of 18 months imprisonment for driving while disqualified and imposed a term of 1 year and 1 month with special release conditions. In that case, the appellant had been stopped

as part of a police random breath testing operation and, apart from the act of driving while disqualified, no other aggravating features were present. In that case a starting point of 10 months imprisonment was uplifted by a further seven months to reflect some 76 previous convictions in the last nine years, including five for driving while disqualified.

[6] Mr Sykes also relied on Tua v Police,² where Woodhouse J allowed an appeal against a sentence of 14 months imprisonment for the appellant’s eighteenth offence of driving while disqualified, substituting a sentence of community work. The Judge on appeal was critical of a failure to address other aspects of the offending beyond the bare number of previous convictions and a failure to consider the offender’s personal circumstances. A mitigating factor was considered to be a diminishing trend in the appellant’s reoffending. The fact that the appellant was in his first paid employment for many years was also considered a relevant mitigating factor.

[7] The Crown emphasised the application of relevant provisions of the Sentencing Act 2002 (the Act). As was referred to by Judge Couch, s 8(d) of the Act requires a sentencing Judge to impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which the penalty

_{is prescribed. The fact the present offending represents Mr Sykes’ 40}^th _conviction

¹ _{Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.}

² Tua v Police [2013] NZHC 2994.

for driving while disqualified means s 8(c) of the Act may well have application. It requires the imposition of the maximum penalty if the offending is within the most serious of cases for which the penalty is prescribed in the absence of circumstances relating to the offender which would make that inappropriate.

[8] The Crown submitted the primary objective of sentencing in cases of driving while disqualified was to punish and demonstrate that orders of the Court cannot be disregarded with impunity.³

[9] As was observed by Dunningham J in Keenan v Police,⁴ there is an apparent difference in the cases to the approach of setting a starting point in cases of aggravated driving while disqualified. The approach taken by Duffy J in Peterson v Police involved setting a starting point having regard to the circumstances of the specific offence of driving while disqualified and then uplifting that starting point in the usual way for relevant previous convictions, including prior driving while disqualified offences, as a personal aggravating factor. That is to be contrasted with the approach taken by Hansen J in Maxwell v Police,⁵ where the learned Judge

endorsed the approach taken by Ronald Young J in Drinkwater v Police.⁶ Hansen J

stated:⁷

The starting point should reflect not simply the fact of the more serious offence of driving on a third or subsequent occasion but the additional culpability arising from the number and frequency of previous convictions. Ronald Young J made the same point in Drinkwater v Police, an appeal against sentence for driving while disqualified on the eleventh occasion, six of them in the last ten years. The Judge had adopted a starting point for sentence of ten months with an uplift of six months for the appellant's past offending of driving while disqualified. Ronald Young J said the following:

I consider the proper approach in sentencing for a third or subsequent driving while disqualified charge is to reflect all of the appellant's previous convictions for driving while disqualified in the start sentence for the current offending. The increase in penalty passed by Parliament for a third or subsequent driving while disqualified charge, is intended to reflect the fact of the appellant's total previous driving while disqualified record. Accordingly it falls more naturally to consider his total previous driving record in the start sentence for a current driving while disqualified charge. The alternative approach would be to assume the offending was a third

³ _{R v Osmand CA79/82, 13 August 1982; R v Butterfield CA100/97, 23 July 1997.}

⁴ _{Keenan v Police [2014] NZHC 1894.}

⁵ _{Maxwell v Police [2013] NZHC 3172.}

⁶ _{Drinkwater v Police [2012] NZCA 592.}

⁷ Maxwell v Police, above n 5, at [13].

offence (the qualifying number), set a start sentence for such offending and then uplift the sentence to reflect the actual number of past disqualified driving offences. That approach would be wholly artificial. Any uplift for past offending would therefore relate to other offending and not the driving while disqualified charge.

(Citations omitted)

[10] I prefer the approach in Maxwell v Police. Intrinsic to an offence of driving while disqualified being a third or subsequent offence is the recidivism inherent in the offender’s conduct. The seriousness of the offence and the need to set a higher starting point derives from the repetition of the prohibited driving. The seriousness of the offender’s conduct directly relates to the number of previous occasions the driver has flouted disqualification orders. That is not to suggest that other circumstances of the offender’s conduct in committing the offence, as considered in Peterson and Tua, ought not to be taken into account in the assessment of the seriousness of the offence, but, in my view, they ordinarily pale in comparison to the significance of the number of previous convictions for driving while disqualified when assessing the seriousness of the index offending.

[11] In the present case, Mr Sykes had 39 previous convictions of driving while disqualified. I accept that a conclusion that Mr Sykes is a hopeless recidivist is tempered by the fact that his last conviction for driving while disqualified was entered in March 2006, and he has therefore managed over some eight years to avoid breaching a disqualification order. This was acknowledged by Judge Couch who recognised the significant gap since the last similar conviction.

[12] The difficulty for Mr Sykes however is that during that period he has incurred a further 19 convictions for dishonesty, and a total of 23 sentences of imprisonment have been imposed in the last nine years. In July 2013 and February 2011, he was convicted of breath/blood alcohol offences for which he received sentences of one year and one month’s imprisonment and eight months imprisonment, respectively. There have been other lengthy and discrete terms of imprisonment over this period.

[13] In the absence of such offending, a sentencing Judge would have been obliged to recognise the relative success that an offender has achieved in curbing his recidivism and, notwithstanding the number of previous convictions for disqualified

driving, the starting point reduced to reflect that feature. Arguably, Judge Couch did that by taking a starting point of 21 months. This was three months less than the maximum which might otherwise have been thought an appropriate starting point in Mr Sykes’ case having regard to the principle that the maximum penalty prescribed should be imposed for offending in the most serious of cases.

[14] Judge Couch uplifted the starting point by three months to take into account the aggravating personal features which included Mr Sykes’ other previous offending. This included 14 convictions for alcohol-related driving and the fact that Mr Sykes offended while he was subject to release conditions. This took the starting point, before review of any mitigating factors, to 24 months imprisonment.

[15] I have not been brought to the position where I can conclude that the sentencing Judge erred in taking a starting point of 21 months, before adding three months for personal aggravating features of the type described in the Judge’s sentencing remarks. As I have already referred, while there has been an eight year hiatus in driving while disqualified offending, Mr Sykes was subject throughout this period to lengthy periods of incarceration. I also note the remarks made by Mr Sykes in the presentence report, where he admits he has “an entrenched pattern of driving while disqualified, and it was only a matter of time before he was caught again and charged”.

Personal circumstances

[16] Mr Sykes received a 25 percent reduction in the starting point for his early guilty plea. He however did not receive any further discount for personal mitigating features. On appeal it was submitted that, at the age of 56 years, Mr Sykes had managed to secure employment and had been working for some five weeks prior to sentencing. That was to be contrasted with little or no history of prior employment.

[17] Mr Sykes is reported to have had a positive attitude in terms of his compliance with his release conditions and had commenced a “driving change” programme at Odyssey House. He was unable to complete that programme because of the sentence of imprisonment imposed upon him. It was submitted on his behalf that he should have received some discount to reflect that he was in employment,

had started a driving change programme and was complying with his release conditions. It was submitted that these were signs of making some efforts to rehabilitate himself.

[18] I do not consider compliance with release conditions provides a firm base for a plea in mitigation. While I accept that Mr Sykes obtaining employment should be viewed positively, apart from the fact of securing employment, he declined to provide any other details regarding his employer or information pertaining to his employment to the pre-sentence report writer. Similarly, on appeal no greater information was furnished, other than counsel being able to advise that Mr Sykes has reported that his employer is willing to re-employ him upon his release.

[19] On behalf of Mr Sykes it was submitted that while the sentence imposed reflected the principles of deterrence and denunciation, it had not adequately taken into account the need for rehabilitation and reintegration. The fact remains however that when a sentencing Court is faced with an offender who comes before it on his

40^th conviction for driving while disqualified, it is unsurprising that a sentence near

to the maximum is imposed.

[20] As I have acknowledged, had the eight year interlude been capable of confidently being interpreted as a reflection of Mr Sykes having curbed his pattern of driving while disqualified a more lenient approach could appropriately have been taken. His drink-driving offending, and more importantly the frequent and not insubstantial periods of imprisonment which he has been subjected to throughout that time, tells against affording Mr Sykes the credit which might otherwise have been able to have been extended to him.

[21] I have concluded that the sentencing Judge did not err in the imposition of the

18 month sentence of imprisonment and the appeal is therefore dismissed.

Solicitors:

Alister James Barrister, Christchurch

Raymond Donnelly & Co, Christchurch