Gray v Police [2014] NZHC 3218 (15 December 2014)

Last Updated: 18 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000367 [2014] NZHC 3218

BETWEEN	CHAREESE MORAHI GRAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 December 2014
Appearances:	P Jensen for Appellant J Murdoch for Respondent
Judgment:	15 December 2014

_{ORAL JUDGMENT OF VENNING J}

Solicitors: Meredith Connell, Auckland

Copy to: P Jensen, Napier

GRAY v NEW ZEALAND POLICE [2014] NZHC 3218 [15 December 2014]

[1] On 26 March 2014 Chareese Gray pleaded guilty to a charge of driving whilst suspended (third or subsequent). Judge J H Lovell-Smith in the District Court at Manukau convicted her and disqualified her from driving for 12 months and one day from 26 March 2014.¹ No other sentence was imposed.

[2] Ms Gray appeals against the sentence of disqualification. She seeks a community based sentence under s 94 Land Transport Act 1998.

[3] The charge was laid in the District Court at Napier. When she appeared before Judge Rea in that Court on 18 March 2014 the Judge noted that the file was to be transferred on the indication Ms Gray was going to plead guilty and recorded:²

[4] Mr Jensen advises that he has spoken with the police who would not be opposing a s 94 application. That, of course, will be a matter for the Judge in Manukau.

[4] The Judge then remanded Ms Gray’s file to the Manukau District Court.

[5] Ultimately, when Ms Gray was before the District Court on 26 March and following discussion with the police prosecutor, the probation officer and considering the matter herself, the Judge did not consider a s 94 community based sentence was available because of s 19 of the Sentencing Act 2002.

[6] When this appeal was before the Court on 28 November 2014 Thomas J granted leave for the late filing of the appeal and directed that it be heard today.³ She has also directed submissions were to be filed and served by 8 December 2014 in support of the appeal with any response by the respondent by 11 December 2014.

[7] Mr Jensen has filed a number of memoranda on behalf of Ms Gray and in support of the appeal.

[8] Initially Mr Jensen submitted that under the new procedures required by the

Criminal Procedure Act 2011, including case review hearings and case management memoranda, the process encourages discussion, indeed it requires discussion

¹ _{NZ Police v Gray DC Manukau, CRI-2014-041-000187, 26 March 2014.}

² _{NZ Police v Gray DC Napier CRI-2014-041-000187, 18 March 2014.}

³ Minute of 28 November 2014.

between prosecution and defence. He submitted the circumstances under which a decision of a Judge is contrary to what has been agreed in that process between the defendant and police is a matter that required further consideration.

[9] However, as discussed with counsel it is not for the defendant and the prosecuting authority to agree a sentence that will be imposed by the Court. At most they can make a joint recommendation to the Court but ultimately the sentence imposed is a sentence imposed by the Court in the exercise of the Judge’s discretion. The Court is not bound by arrangements or suggestions that counsel may have as to sentence.

[10] The Court is only bound by a sentence indication. If a Court is asked for a sentence indication, which is provided for by the relevant provisions of the Criminal Procedure Act, then those provisions set out a regime which ensures an indicated sentence, which is accepted, will be imposed.

[11] There was, however, no sentence indication given by the Court in this case. Judge Rea’s position was clearly recorded in his minute, namely that the ultimate sentence would be for the sentencing Judge in Auckland.

[12] Mr Jensen also emphasised in support of the appeal that having regard to the discussion between the Judge, the probation officer, the prosecuting Sergeant and Ms Gray on the day that she was sentenced, it would have been open for the Judge to have adjourned the sentencing for a week to follow the outcome of Ms Gray’s Parole Board hearing.

[13] Mr Jensen is correct to the extent that the Judge could have adjourned the sentencing exercise to follow the Parole Board hearing but it was not an error for the Judge to decline to or not to consider that matter further and to proceed with sentencing on the day. The position that the Judge was faced with on 26 March was that Ms Gray was a sentenced prisoner serving a term of imprisonment. Section 19 of the Sentencing Act applied. A community based sentence was not available to be imposed on Ms Gray as a serving prisoner.

[14] In the circumstances the sentence imposed of a disqualification was not in error. It is unnecessary for the Court to determine for the purposes of determining this appeal the other issue raised by Mr Jensen, namely if Ms Gray was in the community on parole, whether it would have been open to the Court to impose a community based sentence for this separate offending.

[15] Further, and in any event on the merits of this particular case, given the breaches of parole that had led to Ms Gray being recalled by the Parole Board, and the lack of any information concerning her financial position, any further community based sentence would not have been appropriate, having regard to s 94(1)(c) in this case.

_{[16] For those reasons the appeal is dismissed.}

Venning J