Vickery v Police [2019] NZHC 1315 (11 June 2019)

Last Updated: 14 June 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-255 [2019] NZHC 1315

BETWEEN	TIMOTHY DONALD VICKERY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 June 2019
Appearances:	P S Chamberlain and N D Bond for the Appellant M J Mortimer for the Respondent
Judgment:	11 June 2019

ORAL JUDGMENT OF PALMER J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland

VICKERY v NEW ZEALAND POLICE [2019] NZHC 1315 [11 June 2019]

What happened?

[1] Mr Timothy Vickery is a 27-year-old Australian citizen who had a New Zealand partner for several years in Australia. She returned to New Zealand when she became pregnant. Mr Vickery moved to New Zealand to be with her on 26 January 2019 after he was released from prison in Western Australia. He had a lengthy criminal history there including nine convictions for violence and six driving-related convictions.

[2] On 2 February 2019, Mr Vickery began drinking heavily. His presence in a paddock apparently agitated a new horse, leading his partner to ask him to get out of the paddock. He argued with his partner. He yelled abuse at her and threatened to break her jaw, once if she did not leave him alone and once when she refused to give him quad-bike keys. He also threatened to get a shot-gun and shoot her in the chest. When she gave him the keys he went fishing and she left. He came back to find they were gone and took a car owned by his partner’s mother without permission. He was stopped by the Police driving erratically. He told them to “get fucked” and tried to drive around them but was blocked. He tried to escape, did not and was found to be at twice the legal breath alcohol limit. He was charged with unlawfully taking a motor vehicle, driving with excess breath alcohol and intimidating behaviour. He pleaded guilty.

[3] In her original unsigned victim impact statement, Mr Vickery’s partner is reported to have said he is addicted to methamphetamine, heroin and cannabis and has assaulted her in the past. She is said to have requested a protection order against him, for her and her son. She and Mr Vickery are now separated but he apparently wishes to remain in New Zealand. He explained to the Department of Corrections that he was drinking that day to cope with withdrawal from methamphetamine which he began using from the age of 19 until he was 26. Corrections recommended a sentence of imprisonment with leave to apply for home detention at a residential rehabilitation facility.

Decision under appeal

[4] In sentencing Mr Vickery on 16 May 2019, Judge A-M J Bouchier considered a sentence of imprisonment was appropriate.¹ She set a starting point of six months’ imprisonment for dishonestly taking a motor vehicle, uplifted it by three months for the intimidating behaviour and excess breath alcohol and by another three months for his previous convictions. She gave a discount of 25 per cent for his guilty plea. That resulted in nine months’ imprisonment. She disqualified him from holding a driver’s licence for three months. The Judge ordered, after that, he must obtain an alcohol interlock device to be able to drive. She imposed conditions on Mr Vickery for six months post-imprisonment which included a protection order. Mr Vickery appeals his sentence.

Appeal

[5] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.

[6] Mr Chamberlin, for Mr Vickery, submits the Judge erred in several ways meaning the end sentence imposed was manifestly excessive. Mr Mortimer, for the Police, does not oppose the appeal in one respect but does otherwise. I deal with each issue in turn.

Sentence for motor vehicle offence

[7] Mr Chamberlin submits Mr Vickery’s case is similar in nature to Kingi v Police and R v R where, on appeal, the sentence for unlawfully taking a car belonging to people known to the offenders were 80 hours of community work and payment of witness expenses, and a starting point of four months’ imprisonment respectively.² He distinguished Ben-Kimi v Police where the starting point of 10 months’ imprisonment for taking a car was not interfered with on appeal.³ He submits a starting point of four months’ imprisonment would have been appropriate. Mr Chamberlin submits uplifts

¹ Police v Vickery [2019] NZDC 9184.

² Kingi v Police [2012] NZHC 1308 at [1], [26]; R v R [2012] NZHC 479 at [69].

³ Ben-Kimi v R [2014] NZHC 3157.

of three months’ imprisonment for the secondary charges and for the previous convictions were disproportionate. They were 50 per cent of the starting point and the maximum sentences for each of the secondary charges was three months. He submits an uplift of one month for the secondary offending was warranted. He submits Mr Vickery’s dishonesty convictions in West Australia were the only relevant convictions and justified only a one-month uplift. Accordingly, he submits the end sentence for the lead offence of unlawfully taking a motor vehicle should have been no more than four and a half months’ imprisonment.

[8] Mr Mortimer submits the end sentence of nine months’ imprisonment was within the range available to the Judge. On the basis of Wood v Police and Muir v Police, he submits the starting point of six months for unlawful taking was low, given the aggravating features.⁴ He says it could have been as high as 12 months and a four- month starting point for a standard offence where the maximum penalty is seven years cannot be right. He submits the total uplift of three months for breath alcohol offending and a serious instance of intimidation was well-justified. He submits Mr Vickery was fortunate not to be convicted of threatening to kill, with which he was initially charged. He acknowledges the three-month uplift for previous convictions may well be seen as high. But he submits the end sentence of nine months’ imprisonment was not manifestly excessive.

[9] Downs J’s judgment in Wood v Police contains a useful overview of starting points for unlawfully taking a car. He states, “a single unlawful taking can give rise to a starting point of at least 18 months’ imprisonment, if the offence has a significant aggravating feature or features”.⁵ I agree there were aggravating features here, of breaching the trust of his partner’s mother in taking the car and in pursuing someone he had threatened to kill. The aggravating factors are not as serious as those in the cases Downs J reviewed, but the starting point is also significantly lower. I do not consider the cases cited by Mr Chamberlin contradict that. I consider the starting point was well within the range available to the Judge and I consider it was generous.

⁴ Wood v Police [2018] NZHC 1629; Muir v Police [2015] NZHC 1425.

⁵ At [24].

[10] I do not consider the uplift for the other offending was too high. The intimidation was serious and that, together with the excess breath alcohol offence, was properly reflected in an uplift of three months, despite that being a high proportion of the starting point. The uplifts for the previous convictions were also high. But, as Mr Mortimer submits, I consider the overall end sentence of nine months’ imprisonment was not manifestly excessive for Mr Vickery who, with a lengthy criminal history, engaged in sustained domestic intimidation, stole a car to pursue his victim, drove it while heavily intoxicated and ended up in a confrontation with the Police.

Sentence for breath-alcohol offence

[11] Mr Chamberlin submits a first-time excess breath alcohol offender is routinely dealt with by way of a fine and disqualification. He submits three months’ imprisonment is unheard of for such an offence. But Mr Vickery has no means to pay a fine. Mr Chamberlin submits conviction and discharge and disqualification would be appropriate. Mr Chamberlin accepts Mr Vickery falls into the alcohol interlock regime but submits Mr Vickery is subject to a mandatory exception under s 65AB(2)(c) of the Land Transport Act 1998. Instead, he submits Mr Vickery should have been disqualified from holding a driver’s licence for six months and authorised to apply for a zero-alcohol licence after that, as is required. Mr Mortimer acknowledges the alcohol interlock order was made in error and should be replaced with an order authorising Mr Vickery to apply for a zero-alcohol licence after that.

[12] I agree the alcohol interlock element of the sentence should be quashed. Instead I disqualify Mr Vickery from holding or applying for a driver’s licence for six months under s 56(3)(b) of the Land Transport Act. I also agree the three months’ concurrent imprisonment sentence for a first-time excess breath alcohol offence is excessive. I uphold that aspect of the appeal and reduce it to one month, concurrently with the other sentences. That will not make a difference to the overall sentence.

Sentence for intimidation and protection order

[13] Mr Chamberlin submits the sentence of three months for intimidation is manifestly excessive and one month, concurrent with the lead charge, is appropriate.
He submits the Judge did not have sufficient information to order a protection order under s 123B of the Sentencing Act 2002 because the original victim impact statement was un-signed, the updating report did not address the issue and the victim has not signed her most recent email. He submits for that reason the court should not give weight to it under s 22B of the Victim Rights Act 2002.

[14] Mr Mortimer applies to admit a recent updating email from the victim this morning, reiterating her desire for the protection order. That is not opposed. I grant the application. He accepts he is labouring under the disadvantage of the implication of s 22B of the Victim Rights Act. But he submits the documentation provides a degree of assurance the victim has been contacted. He submits the protection order is the most pressing concern of the Police and any shortcoming in the form of the evidence can be remedied by remission to the District Court.

[15] I do not interfere with the concurrent sentence of three months. The intimidation was serious and could easily have resulted in more serious charges. The protection order I think was justified. I do not consider the Judge erred. I consider the order was necessary to protect the victim here and there is no evidence she objected to it. I do not rest that conclusion on the victim’s reported views but on the summary of facts which were the basis of the plea.

Result

[16] The overall result is that I uphold the appeal in the following respects:

(a) I quash the alcohol interlock order and replace it with an order disqualifying Mr Vickery from holding or applying for a driver’s licence for six months as well as an order authorising Mr Vickery to apply for a zero-alcohol licence at the end of his period of disqualification if he wishes;

(b) I quash the concurrent sentence of three months’ imprisonment for excess breath alcohol and instead impose a concurrent sentence of one month’s imprisonment.
[17] Otherwise I dismiss the appeal.





Palmer J