Whitley v Police [2016] NZHC 1025 (18 May 2016)

Last Updated: 3 June 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000084 [2016] NZHC 1025

BETWEEN	CHRISTOPHER EDWARD WHITLEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 May 2016
Appearances:	D M M Dickinson for Appellant S L McColgan for Respondent
Judgment:	18 May 2016

_{JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 18 May 2016 at 4.15 pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_{Date:..............................}

Solicitors/counsel:

D M M Dickinson, Auckland

Crown Solicitor, Auckland

WHITLEY v NEW ZEALAND POLICE [2016] NZHC 1025 [18 May 2016]

Introduction

[1] On 17 February 2016, the appellant, Mr Whitley, was sentenced by Judge G A Fraser in the District Court at Auckland, to 22 and a half months’ imprisonment, on three charges of driving while disqualified (third and subsequent).

[2] Mr Whitley appeals against the sentence arguing that it was manifestly excessive and/or that Judge Fraser failed to grant him leave to apply for home detention.

Background facts

[3] On 13 January 2015, Mr Whitley appeared in the Auckland District Court. He was convicted on a charge of driving while disqualified, and he was disqualified from driving for a further period of one year as from that date. On 8 July 2015, Mr Whitley again drove while disqualified. He made an application under s 94 of the Land Transport Act 1998 and he was convicted and sentenced to community work and intensive supervision. The earlier disqualification from driving remained in place.

[4] Notwithstanding the disqualification, on Wednesday 25 November 2015, Mr Whitley was apprehended while he was driving his motor vehicle on Royal Road. When he was spoken to by the police, he admitted that he was disqualified. In explanation, he said that he was driving because he was visiting his mother.

[5] At 10.15pm on 1 January 2016, Mr Whitley was again apprehended by the police while driving. When he was spoken to, he was cooperative. Again he admitted to driving while disqualified. He stated that he was driving his two children to their mother’s house.

[6] Finally, on 8 January 2016, Mr Whitley was stopped by the police while he was driving in central Auckland. When he was spoken to by the police, he stated that he knew that he was a disqualified driver, but that he was looking for his sister.

[7] There is no suggestion in the summaries of fact that public safety was in issue at any stage.

[8] Mr Whitley has since filed an affidavit. It seeks to explain the background from his perspective.

(a) Between the November 2015 and the January 2016 offending, there was a homicide at the family home that Mr Whitley and his 13 year old daughter lived in. His cousin was staying with him, along with a friend. The friend was assaulted and stabbed, and another person was badly injured. The friend died in front of Mr Whitley and his daughter.

(b) Mr Whitley said that after the homicide, his life “went off the rails”.

(c) Mr Whitley was bailed to the home address, pursuant to the 25

November 2015 offending, and following the homicide the property became a crime scene. Mr Whitley said that he ended up sleeping at a number of different houses and flats, and that he often slept in his car. He said that he had no choice but to drive.

(d) Mr Whitley was concerned for his daughter. She had to go and live with her mother, because Mr Whitley could no longer provide a stable address for her. Mr Whitley said that one of the January offences occurred because he had to pick up his children from his mother’s house, when she did not want to look after them.

(e) Mr Whitley acknowledged that around this time he “completely dropped the ball” and failed to comply with the community based sentences he was then subject to.

District Court’s judgment

[9] Judge Fraser noted that explanations had been proffered for the offending, but said that, in his view, they did not provide an excuse. He observed that Mr Whitley

has eight previous convictions for the same or similar offending. He noted that the most recent previous conviction was that in July 2015, and that Mr Whitley was then sentenced to community work and intensive supervision. Nevertheless, the November 2015 offending occurred within two months of the sentence date, while Mr Whitley was still subject to the disqualification that had been imposed in January

2015, and while he was subject to the community work and intensive supervision order imposed in October 2015. The Judge also observed that the offending in the early part of 2016 occurred while he was on bail for the November 2015 offending.

[10] The Judge commented on Mr Whitley’s criminal history. He noted that Mr Whitley has a large number of convictions for breaching bail and community based sanctions. He referred to the Provision of Advice for Courts report, and observed that it recorded that compliance with the sentence imposed in October 2015 had been poor. He considered that Mr Whitley exhibited a consistent pattern of failing to comply with court orders, and that that pattern had been ongoing for some time. The Judge considered that the Court had to have regard to denunciation and deterrence, and to the need to promote in Mr Whitley a sense of responsibility for what had occurred. He considered in the circumstances that the least restrictive outcome was a sentence of imprisonment.

[11] The Judge considered that each offence should attract a discrete and cumulative sentence. He adopted a starting point of 10 months’ imprisonment for the November 2015 offending, and uplifted that starting point by six months for the

1 January 2016 offending, and then by a further six months for the 8 January 2016 offending. The Judge then (erroneously) stated that this took the starting point to 24 months’ imprisonment. He imposed an additional uplift of six months for Mr Whitley’s previous criminal history. He expressed the view that, in terms of totality, a 30 month starting point was not inappropriate. He deducted 25 per cent for Mr Whitley’s guilty pleas, giving an end point sentence of 22 and a half months. In addition, the Judge imposed a 15 month period of disqualification from driving. The Judge also cancelled the community work sentence which had been imposed in July

2015.

The appeal – relevant statutory provisions

[12] Mr Whitley has a right of appeal against his sentence pursuant to s 244 of the

Criminal Procedure Act 2011.

[13] As the first appeal court, this Court’s powers on appeal are set out in s 250 of the Act. The Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. In any other case, the Court must dismiss the appeal.

[14] In Tutakangahau v R,¹ the Court of Appeal confirmed that s 250 of the Criminal Procedure Act was not intended to change the approach taken to sentence appeals under now repealed provisions in the Crimes Act 1961 and in the Summary Proceedings Act 1957. Rather, the Court must proceed on an “error principle”. The discretion to vary a sentence is not unfettered, and the Court does not embark upon the sentencing afresh, nor substitute its own opinion for that of the original sentencing Judge. There must be an error vitiating the exercise of the original

sentencing discretion.²

[15] Furthermore it is the end sentence which is important from the appellate perspective, and not the method by which it was reached. Sentence appeals generally turn on the question of whether or not the final outcome is manifestly excessive. The route by which the Judge reached that outcome will be relevant to the analysis, but it is seldom, in itself, pivotal.³

Submissions

[16] Mr Dickinson, appearing on Mr Whitley’s behalf, submitted that:

(a) the Judge erred by conflating two different methodologies in setting the starting point;

¹ _{Tutakangahau v R [2014] NZCA 279 at [26].}

² _{R v Shipton [2007] 2 NZLR 218 (CA) at [138].}

³ Ripia v R [2011] NZCA 101 at [15].

(b) the Judge erred when he imposed cumulative sentences for all three offences;

(c) the Judge erred by failing to recognise that it was a mitigating factor applicable to the second and third offences, that Mr Whitley was of no fixed abode and was sleeping in his car;

(d) the Judge failed to recognise the profound effect that a homicide and serious assault in Mr Whitley’s family home had had on him and his family;

(e) the Judge erred by overstating Mr Whitley’s inability to comply with

sentences, particularly electronically monitored sentences; and

(f) the Judge erred by not considering s 94 of the Land Transport Act

1998.

No issue was taken by Mr Dickinson with the starting point for the offending which occurred in November 2015, the uplift for Mr Whitley’s prior offending, or the discount given for the guilty pleas.

[17] Mr McColgan for the Crown, submitted that Judge Fraser did not err, and that the sentence was not manifestly excessive. He noted that the offending for which Mr Whitley was being sentenced represented his ninth, 10th and 11th convictions for driving either whilst disqualified or whilst suspended. He noted that Mr Whitley had not responded to the Court’s previous efforts to prevent such offending by him, and that when considered in its totality, the sentence handed down by Judge Fraser was stern, but not excessive. He submitted that the Judge took Mr Whitley’s personal circumstances into account, along with all other relevant factors. He did acknowledge that there had been a miscalculation in the structure of the sentence and that the end point should have been 21 months’ imprisonment.

Analysis

[18] Against this background, I deal with the arguments raised for Mr Whitley.

The starting point – competing methodologies?

[19] In recent case law it has been suggested that two different methodologies have been applied to sentencing for the offence of driving whilst disqualified (third or subsequent).

[20] In Drinkwater v Police,⁴ Ronald Young J considered that the proper approach in sentencing for a third or subsequent driving while disqualified conviction is to reflect all of a defendant’s previous convictions for driving while disqualified in the start sentence for the offending being considered. He observed that the increase in penalty for a third or subsequent driving while disqualified charge allowed for in the statute is intended to reflect a defendant’s total previous driving while disqualified record, and that accordingly, it falls more naturally to consider a defendant’s total previous driving record in the start sentence for a current driving while disqualified

charge.⁵

[21] In Peterson v Police,⁶ Duffy J preferred an approach which takes the starting point for the specific offence of driving while disqualified which is being considered, and then uplifts that starting point for a defendant’s previous convictions, including prior convictions for driving while disqualified. The Judge expressed her view that this approach is consistent with the sentencing methodology discussed by the Court of Appeal in R v Taueki.⁷

[22] Other Judges have also considered this issue. Moore J observed in Opetaia v

Police,⁸ that the Drinkwater approach appears to have more judicial support. [23] In the present case Judge Fraser adopted the Peterson approach.

[24] I do not need to decide which approach I prefer, because Mr Dickinson did

_{not challenge the starting point adopted by Judge Fraser for the November 2015}

⁴ Drinkwater v Police [2013] NZHC 1936; approved in Maxwell v Police [2013] NZHC 3172 and

_{Sykes v Police [2014] NZHC 2642.}

⁵ _{At [18].}

⁶ Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009; and see Keenan v

_{Police [2016] NZHC 816.}

⁷ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).}

⁸ Opetaia v Police [2015] NZHC 2532.

offending. I agree with a comment made by Dunningham J in Keenan v Police.⁹

Both approaches should lead to the same result and Mr Dickinson properly accepted that, on the authorities, a sentence of 10 months’ imprisonment was appropriate for Mr Whitley’s November 2015 offending.

[25] Mr Dickinson did however challenge the uplift of six months given for each of the January 2016 offences and the fact that they were treated on a cumulative basis, rather than on a concurrent basis.

Cumulative/Concurrent Offending

[26] Mr Dickinson submitted that the January offending was part of a connected series of events, and that therefore s 84(2) of the Sentencing Act 2002 applied. Section 84 provides as follows:

84 Guidance on use of cumulative and concurrent sentences of imprisonment

(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a) the time at which they occurred; or

(b) the overall nature of the offending; or

(c) any other relationship between the offences that the court considers relevant.

[27] Judge Fraser treated the offending on a cumulative basis. In my view he was entitled to do so. While the offending on 1 January and on 8 January 2016 was the same in kind, it was not offending which was part of a connected series of events. The two offences were a week apart. Both occurred relatively late at night and both

_{occurred approximately a month after the homicide and the serious assault witnessed}

⁹ Keenan v Police [2014] NZHC 1894.

by Mr Whitley and his daughter. There is however no factual connection between the offences, and the explanations offered by Mr Whitley when spoken to by the police for each offence were different. I do not consider that the offences were part of a connected series of events. Judge Fraser clearly had jurisdiction to impose cumulative sentences, and I do not consider that he erred in principle in doing so.¹⁰

[28] In any event, the fundamental requirement is that the overall sentence should reflect the totality of the offending. If cumulative sentences are imposed, they must not result in a total sentence wholly out of proportion to the gravity of the offending.¹¹

[29] There have been a number of decisions considering offending of this kind. Many of them were considered by Moore J in Opetaia v Police,¹² and I adopt his analysis. There are others, e.g.

(a) Wilson v Police,¹³ where a sentence of two years and four months’ imprisonment was upheld on appeal in relation to four charges of driving while disqualified (third or subsequent).

(b) O’Docherty v Police¹⁴ where a starting point of 18 months’ imprisonment for three charges of driving while disqualified (third or subsequent), uplifted by five months for previous offending and because the offending occurred while the appellant was on bail, was overturned on appeal. A starting point of 12 months was adopted with an uplift of three months.

(c) Farrell v Police,¹⁵ where the appellant pleaded guilty to four charges of driving while disqualified, one of breaching periodic detention, and one of unlawfully taking a motorcycle. The four charges of driving

_{while disqualified related to four separate incidents that occurred over}

¹⁰ _{And see Hughes v R [2012] NZCA 388 at [19]- [20]; R v McQuillan CA129/04, 12 August 2004.}

¹¹ _{Sentencing Act 2002, s 85(2); Hughes v R, above n 10 at [26].}

¹² _{Opetaia v Police, above n 8, at [37].}

¹³ _{Wilson v Police [2016] NZHC 506.}

¹⁴ _{O’Docherty v Police [2012] NZHC 3043.}

¹⁵ Farrell v Police HC Tauranga AP31/02, 27 March 2003.

a four month period. Concurrent sentences of 18 months’ imprisonment were imposed in the District Court. The offender had been through traumatic personal circumstances – he and his partner had lost a child as a result of a cot death, and the appellant’s partner’s mother had died. These were said to have brought about significant changes in the appellant’s attitude to life. On appeal, Heath J considered that a sentence in the range of six to nine months was appropriate, and he reduced the sentence imposed in the District Court from 18 months’ to 8 months’ imprisonment.

[30] I agree with the observations made by Moore J in Opetaia v Police, namely that the authorities make it plain that it is the number of previous convictions for driving while disqualified, or driving while suspended, which are directly relevant in setting the starting point for offending of this kind.¹⁶ While a mathematical or formulaic approach is not to be commended, a starting point of 10 months’ imprisonment is appropriate for an eighth conviction, and the fact that multiple convictions are sentenced together inevitably justifies the imposition of a harsher sentence.

[31] The 10 month starting point adopted by Judge Fraser was appropriate. However, the six month uplift for each of the January 2016 offences led to a total sentence which was, in my view, too high. There were aggravating features to the offending. Both offences were committed while Mr Whitley was on bail in relation to the November 2015 offending. Mr Whitley was clearly aware that he was disqualified. His answers to the police when questioned suggest that he was simply flouting the disqualification which had been imposed on him. While I agree with Moore J in Opetaia that the breach of disqualification or suspension order must be treated with the seriousness it deserves, in my judgment, the appropriate sentence to impose for each of the January offences was an additional four months’ imprisonment. This recognises that the offences were committed while Mr Whitley was on bail, and that they were his 10th and 11th offences of this kind. That takes

_{the starting point to one of 18 months’ imprisonment.}

¹⁶ Opetaia v Police, above n 8, at [38].

Aggravating/mitigating Features

[32] Mr Whitley has an appalling criminal history. Much of it demonstrates that he has persistently failed to obey court orders. He has eight convictions for driving while either disqualified or suspended, six convictions for failing to answer District Court bail, nine convictions for breach of community work orders, a conviction for breach of a court release condition and three convictions for breach of periodic detention. All of this offending was committed over the period 2001 through to

2015. In my judgment, this justifies an additional uplift. Judge Fraser imposed an uplift of six months, and this was not challenged on appeal. Further, an uplift of six months or more has been imposed in similar cases.¹⁷ Because of this I do not propose to alter this uplift, but I do have some reservations. An uplift of one third for past offending seems disproportionate to me.

[33] Mr Dickinson suggested that Judge Fraser failed to take into account all relevant mitigating factors. He pointed specifically to the fact that Mr Whitley as, at the time, had no fixed abode, and that he was sleeping in his car.

[34] I am sympathetic to the circumstances which Mr Whitley faced. I have no doubt that witnessing a homicide and a serious assault, in his family home, must have had a profound effect on him and his family. I accept that those events would have placed Mr Whitley under considerable personal stress, and that that stress would have been compounded, at least while the house was being treated as a crime scene, with the consequence that he could not provide a home for his 13 year old daughter. I agree with Judge Fraser that these explanations do not justify the offending. They do however place it in context. I would allow Mr Whitley a discount of four months to recognise these mitigating factors.

[35] It was agreed between counsel that Mr Whitley should be entitled to a full 25 per cent discount for his guilty pleas.

_{[36] That means that the end point sentence is one of 15 months’ imprisonment.}

¹⁷ E.g. Wilson v Police [2016] NZHC 506; Peterson v Police, above n 6; Finch v R [2012] NZCA

446.

Section 94 of the Land Transport Act 1998

[37] Mr Dickinson submitted that Judge Fraser erred in not tempering the sentence he imposed, by failing to take into account s 94.

[38] Section 94 of the Land Transport Act provides as follows:

94 Substitution of community-based sentences

(1) This section applies if—

(a) the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b) the court, having regard to—

(i) the circumstances of the case and of the offender;

and

(ii) the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii) the likely effect on the offender of a further order of disqualification; and

(iv) the interests of the public,— considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c) the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2) Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

(3) If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a) the court must impose a community-based sentence on the offender; and

(b) the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and

(c) in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

...

[39] I have difficulty with Mr Dickinson’s submission. There was no application under s 94 when the matter was before Judge Fraser. Nor was there any application to invoke s 94 when the matter was before me. Further, and in any event, Mr Whitley had been granted an application under s 94 as recently as October 2015, in relation to the identical offending which had occurred in July 2015. He failed to take advantage of the opportunity which was afforded to him by the Court at that point, and simply went on to offend again in November 2015. I do not consider that there was any error by the Judge, or that s 94 had any application on the facts of this case.

Home Detention?

[40] Clearly home detention was an option available to Judge Fraser. He did not consider it appropriate to grant leave to Mr Whitley to apply for home detention. Nor do I. As I have noted above, Mr Whitley has an appalling record of failing to comply with court orders. A relatively short and sharp sentence of imprisonment was the best and likely to be the most effective solution. It not only denounces Mr Whitley’s conduct, but it should also act as a deterrent to ensure that he does not re- offend in a similar way in the future.

Result

[41] The end sentence I have reached is considerably less than the end sentence imposed in the District Court. It follows that I consider that the sentence imposed by the District Court was manifestly excessive, and that the appeal against sentence should be allowed.

[42] The appeal against the sentence of 22 and a half months’ imprisonment

imposed in the District Court is allowed, and the sentence is quashed.

[43] For the three offences of driving while disqualified (third and subsequent), I

impose a sentence of 15 months’ imprisonment.

[44] The period of disqualification – namely 15 months – imposed by Judge

_{Fraser remains in place. So do the post release conditions imposed by the Judge.}

Wylie J