Russell v Police [2018] NZHC 858 (30 April 2018)

Last Updated: 10 May 2018

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-18 [2018] NZHC 858

BETWEEN	AIDAN DOUGLAS RUSSELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 April 2018 (Heard at ROTORUA)
Appearances:	W Nabney for Appellant S J P Davison for Respondent
Judgment:	30 April 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

RUSSELL v NEW ZEALAND POLICE [2018] NZHC 858 [30 April 2018]

[1] Mr Russell pleaded guilty in the District Court to a charge of driving whilst disqualified in its aggravated form. He has seven previous convictions for driving whilst disqualified. He also pleaded guilty to a charge of giving false details as to his identity. That is a fine only offence.

[2] On 19 February 2018, Judge Coyle sentenced Mr Russell to nine months imprisonment.¹ In doing so he rejected a submission by his counsel that a sentence of home detention was appropriate. Mr Russell contends the Judge erred in principle when fixing the starting point and adding an uplift for previous convictions. He also contends the Judge erred in imposing a sentence of imprisonment rather than home detention.

The facts

[3] The facts of the offending are unremarkable. Mr Russell was disqualified from driving for a period of six months on 9 June 2017. At 3 am on 19 September 2017 the police stopped Mr Russell whilst he was driving a motor vehicle in Mt Maunganui. When asked for his details, Mr Russell gave a false name and date of birth. When the police discovered his true identity, he told him he was on his way to meet his brother.

The Judge’s decision

[4] The Judge took a starting point of nine months imprisonment to reflect the gravity of the offending. He then added an uplift of three months to reflect the fact Mr Russell has been convicted on seven previous occasions of similar offending. He gave Mr Russell a discount of three months, or 25 per cent, to reflect early guilty pleas. This resulted in the end sentence of nine months imprisonment.

The appeal

[5] On Mr Russell’s behalf, Mr Nabney contends the Judge erred in two respects. First, he submits there was no need to apply an uplift to reflect previous convictions because the previous convictions were already reflected in the starting point of nine months imprisonment. Secondly, he contends the Judge erred in principle in rejecting

¹ New Zealand Police v Russell [2018] NZDC 3038.

the proposition that a sentence of home detention was appropriate. Mr Nabney bases one aspect of this submission on the fact that the Judge did not give express recognition to the fact that Mr Russell’s last conviction for similar offending had been in 2008. Mr Nabney contends that if the Judge had given weight to this factor, he ought to have decided that a sentence of home detention was appropriate.

Decision

[6] I uphold Mr Nabney’s submission in relation to the first ground of appeal. The starting point of nine months imprisonment reflected the fact that Mr Russell has seven previous convictions for similar offending on several occasions. The first of these was in December 2004, when he was sentenced to two months imprisonment on a charge of driving whilst disqualified. He was then sentenced to five months imprisonment on 23 January 2007 on the same charge. On 26 May 2008, he was sentenced to seven months imprisonment for driving whilst disqualified. Then, on 24 June 2008, he received a cumulative sentence of three months imprisonment on the same charge. That charge related to offending that had occurred just two days before he was due to be sentenced on the previous charge.

[7] Having regard to that background it is no surprise the Judge selected a starting point of nine months imprisonment, notwithstanding the fact that the present offending occurred some nine years after Mr Russell’s last conviction for the same type of offending. I consider, however, that the starting point of nine months imprisonment adequately reflected the fact that Mr Russell has not learned from previous sentences. There was no need for the Judge to add an uplift of three months to reflect that factor.

[8] The second issue relates to the Judge’s decision to impose a sentence of imprisonment rather than home detention. Mr Nabney submits that the Judge placed undue weight on three factors. The first is that the Judge was under the impression Mr Russell’s partner would need to leave the address at which Mr Russell proposed to serve the sentence of home detention. At the time of the offending Mr Russell was subject to a protection order in favour of his partner who lived at that address. The protection order remained in existence at the date of sentencing, and observations
made during the Judge’s sentencing remarks indicate he did not consider Mr Russell would be able to live at the address whilst serving a sentence of home detention.

[9] As it transpires, Mr Russell had been living at that address with his partner’s consent for some months prior to the present offending. His partner has now consented to the protection order being discharged. It follows that there is now no impediment to Mr Russell serving a sentence of home detention at his partner’s address.

[10] Mr Nabney also contends the Judge may have given undue weight to observations made in the pre-sentence report regarding Mr Russell’s failure to attend appointments arranged for the purpose of providing advice regarding sentencing options. Mr Russell’s partner has provided an affidavit in which she explains why the person who prepared the report was not able to speak to her or Mr Russell prior to the preparation of the report. Finally, Mr Nabney contends the Judge failed to take into account the fact that Mr Russell’s last conviction for driving whilst disqualified occurred some nine years ago in 2008.

[11] I consider the first two arguments to be largely neutral in effect. The Judge was clearly aware of the protection order, but it is clear that his decision was not predicated on the basis that Mr Russell’s partner would be required to leave the address. The Judge referred extensively to Mr Russell’s previous convictions for breaching Court orders and sentences. The most relevant of these for present purposes are two convictions entered in December 2015 for breaches of a sentence of home detention. That sentence was imposed on 30 January 2015 on a charge of contravening a protection order. It seems that Mr Russell left the address at which he was serving the sentence of home detention on 4 November 2015, and committed a burglary on the same date. He then breached his home detention conditions in another way just four weeks later. In addition, Mr Russell has other convictions for breaching protection orders, failing to answer District Court bail and driving whilst disqualified. The fact that Mr Russell was prepared to give false particulars to the police on the present occasion suggests he continues his attitude of defiance towards those in authority.
[12] Having regard to those factors, I do not consider a sentence of home detention was a viable option in Mr Russell’s case. The Judge cannot be criticised for electing instead to impose a sentence of imprisonment.

Result

[13] The appeal is allowed to the extent that I consider it is necessary to rectify the Judge’s error in imposing an uplift to reflect previous convictions. Taking a starting point of nine months imprisonment, I reduce that sentence by two months two weeks, or 25 per cent, to reflect Mr Russell’s guilty plea.

[14] I therefore quash the sentence of nine months imprisonment. In its place I impose a sentence of six months two weeks imprisonment.




Lang J

Solicitors:

Crown Solicitor, Tauranga W T Nabney, Tauranga