Ropiha v Police [2016] NZHC 839 (29 April 2016)

Last Updated: 23 May 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-15 [2016] NZHC 839

BETWEEN	RICHARD ERNEST ROPIHA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 April 2016
Appearances:	K Paima for the Appellant S E Burdes for the Respondent
Judgment:	29 April 2016

_{JUDGMENT OF DAVIDSON J}

Introduction

[1] This appeal is against sentence imposed by His Honour Judge MacAskill on

28 January 2016.¹ The appeal is filed out of time but leave is not opposed, and is given.

[2] The sentence imposed included 12 months imprisonment on a range of offences, including the driving charges to which this appeal relates. Forfeiture and disqualification orders were made. The appellant was sentenced on three charges of driving while suspended, which occurred on different days within a two-week period.

• Driving while suspended (3^rd or subsequent).² Date of offence

_{2 October 2015.}

¹ _{Police v Ropiha [2016] NZDC 1277.}

² _{Land Transport Act 1998, s 32(1) and (4).}

ROPIHA v NZ POLICE [2016] NZHC 839 [29 April 2016]

• Driving while suspended (1^st or 2^nd).³ Date of offence 7 October

2015.

• Driving while suspended (3^rd or subsequent).⁴ Date of offence

16 October 2015.

[3] Mr Ropiha was also found in possession of 7.7g of methamphetamine⁵ and a needle for injecting for his own use⁶ when he was stopped on 16 October 2015, something that the appellant did not think was of consequence and that he “just gave himself a birthday present”. He was also found in possession of a firearm.⁷

[4] He has multiple prior convictions for driving with a suspended licence. These charges fell for consideration in terms of the penalties for a “third or subsequent offence”, for which a maximum term of imprisonment of 2 years, and a non-discretionary disqualification order for “1 year or more” are stipulated.

Grounds of appeal

[5] The appellant was sentenced to concurrent disqualification periods of

18 months which he submits was manifestly excessive.

[6] He also submits that Judge MacAskill failed to give reasons for sentence, and that he should have done so, as to why a disqualification period greater than the minimum of 1 year was imposed.

Relevant Principles on appeal

[7] The appeal against sentence is brought under s 244 of the Criminal Procedure

_{Act 2011.}

³ _{Section 32(1) and (3).}

⁴ _{Section 32(1) and (4).}

⁵ _{Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a).}

⁶ _{Section 13(1)(a) and (3).}

⁷ Arms Act 1983, s 45(1).

[8] This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.⁸

[9] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said in Larkin v Ministry of Social Development:⁹

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

For the Appellant

[10] The applicable law relating to this appeal and in particular s 32 of the Land Transport Act 1998 is correctly advanced by the Appellant, including the principles stated in Leaupepe v Police,¹⁰ and Hitchens v R.¹¹

[11] Section 32(4) of the Land Transport Act 1998 provides:

(4) If a person is convicted of a third or subsequent offence against subsection (1) (whether or not of the same kind of offence as the previous offences), -

(a) ...

(b) The court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.

[12] Mr Paima for the appellant submits that the authorities demonstrate that public safety considerations are at the heart of the sentencing exercise.

⁸ _{Criminal Procedure Act 2011, s 250(2).}

⁹ _{Larkin v Ministry of Social Development [2015] NZHC 680 citing Ripia v R [2011] NZCA 101.}

¹⁰ _{Leaupepe v New Zealand Police [2015] NZHC 1766.}

¹¹ Hitchens v R CA 380-03, 25 March 2004.

[13] In Leaupepe v New Zealand Police, the court said:¹²

[8] The principle objective of disqualification is public safety. Many of the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act

2002 can have little application when assessing the length of disqualification

and others must receive limited weight because of public safety concerns.

...

[10] The Court of Appeal has provided some guidance to when a period of disqualification will be manifestly excessive. In Hitchens v Police the Court noted two competing considerations.

(a) long periods of disqualification typically leave little hope for offenders; and

(b) it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

[11] The task of the sentencing Judge, and an appellate Court on review, is to effect an appropriate balance between those considerations. The fixing of that balance depends upon the circumstances of the particular case.

[14] The Court in Leaupepe doubted the utility of comparable cases in this context:

[9] The extent of the discretion available to the sentencing Judge is...less fettered that that in respect of a conventional sentencing decision. A comparison with other cases is therefore a less reliable guide than is the case for a conventional sentencing.

[15] Mr Paima says that the appellant has no prior convictions for driving with excess breath alcohol or driving while impaired, but rather, two reckless driving offences and failure to stop and ascertain injury. He was sentenced to concurrent terms of imprisonment (a lead charge of burglary and nine months disqualification). In 2010 he was convicted of careless driving and was fined and disqualified for three months. In 2011 he drove in breach of a suspension notice and received a fine with the statutory minimum six months disqualification. He then drove in breach of that disqualification and was convicted and disqualified for one year. A third offence of the same kind was committed in February 2013 and he received a community based sentence in lieu of disqualification. He failed to reinstate his licence before he drove

_{and a further conviction in 2014 and fines were imposed.}

¹² Leaupepe v New Zealand Police, above n 10.

[16] Mr Paima acknowledged that there are matters of record which are relevant to road safety but emphasises that they are “dated”. He submits that driving in breach of a suspension notice is not the equivalent of breaching a court order, and there are no aggravating features to the offending. Mr Ropiha did not drive in a risky fashion or under some unlawful influence. Mr Paima accepts that the timing of the offending, three offences over a 14 day time span, are aggravating but says that should not lead to an increased disqualification period beyond the 12 month minimum given that the principal objective is road safety. Counsel submits that there are no significant public safety concerns in relation to this offending.

[17] Counsel is arguably correct that the unlawful presence of a firearm in the vehicle on the occasion of one of the offences here (the subject of a separate charge) is in principle not a matter of “public safety” to be addressed when sentencing for driving while suspended. This is not to rule on the point, but an observation.

[18] “Public safety” should not be understood purely in the context of dangerous driving. The mandatory application of at least one year disqualification suggests that Parliament intended the disqualification order to fulfil a public safety response of stopping people who are subject to suspension or disqualification from driving.

Submissions for Police (Respondent)

[19] The Court of Appeal in Hitchens v Police, identified the competing considerations that:¹³

(a) long periods of disqualification typically leave little hope for offenders; and

(b) it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

[20] In Duncan v Police, Panckhurst J addressed the matter in this way:¹⁴

As a matter of policy disqualification orders should be kept as short as is possible in relation to achievement of the underlying end of road safety.

[21] In the two year period prior to suspension on 26 August 2015, the appellant had accumulated 175 demerit points in the two years prior for excess speed; use of a mobile phone while driving; driving too close to another vehicle and being unable to stop in time; and driving an unlicensed vehicle.

[22] The proposition that the disqualification period imposed was too long and left little hope for the appellant was rejected by Mr Burdes who said this was such close repeated offending that it was a straightforward rejection of the sanctions imposed on Mr Ropiha.

Requirement to give reasons

[23] A sentencing Judge is under a general requirement to provide reasons when imposing a sentence. The comparatively brief sentencing notes provide no specific reasons for the imposition of 18 month disqualification periods. The notes read:¹⁵

[21] On each of the three driving while suspended charges, you are disqualified from holding or obtaining a driver’s licence for 18 months commencing today.

[24] Clearly, however, the Judge had in mind the totality principle during sentence. In determining the appropriate sentence of imprisonment, the Judge took as the lead charge the charge of driving while suspended, and sentenced on that charge “on a totality basis”.¹⁶ It is a reasonable inference that he also took into account the totality principle when making the disqualification orders.

[25] The exercise on appeal is not in any event thwarted by the lack of more particularised reasons. This Court will consider the sentence against its own conclusion as to the range of sentence available. The Appellant must show that the sentence was, in the result, “manifestly excessive”.

Manifestly excessive

[26] A further six months beyond the minimum disqualification is, in this Court’s

view, a lenient response to the matters before the Court.

[27] The relevant suspension was imposed for driving with excess demerit points, which had accrued for a range of driving matters which had a distinct road safety element to them.

[28] The unlawful carriage or possession of items unlawfully found in the motor vehicle is submitted by the appellant not to impact on road safety without more. Mr Burdes for the New Zealand Police disagrees. The pre-sentence report indicated Mr Ropiha lacked impulse control and had difficulty making sound decisions. The Court can hardly ignore the multiplicity of offending, and defiance of the suspension which related to road safety. His defiance indirectly reflected those events and to be found driving in possession of methamphetamine and a needle for its use is distinctly relevant to road safety.

Decision

[29] I consider that Mr Burdes for the Police is correct in saying that Mr Ropiha was suspended for good reason, associated with driving offences which were related to public safety considerations. He should have stayed off the road. His offending reflected his failed response to measures imposed to keep him off the road, and is closely connected with public safety considerations.

[30] The discretion in relation to disqualification under s 32 is “less fettered” than conventional sentencing and the Court on appeal should be less ready to interfere. Indeed, nothing less than a “manifestly excessive sentence” will suffice.

[31] This case involved three discrete incidents of driving whilst suspended occurring over a two-week period. The Judge was clearly entitled to take the several, proximate, and defiant breaches into account.

[32] The learned Judge has not erred in sentencing by failing to provide reasons for the sentence imposed. Otherwise, the sentence imposed was not, in the circumstances, manifestly excessive as to warrant the intervention of this Court on appeal.

Disposition

_{[33] The appeal is dismissed.}

......................................
Davidson J

Solicitors:

Better Lawyers Limited (Christchurch)

Crown Solicitor’s Office, Raymond Donnelly & Co (Christchurch)