IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CRI-2020-412-000044
[2021] NZHC 128	

BETWEEN	NICOLA MARY ANNGOW
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	2 February 2021	
Appearances:	J Lucas for Appellant
P A Norman for Respondent	
Judgment:	10 February 2021	

JUDGMENT OF DOOGUE J

Introduction

[1]	On 15 October 2020 the Appellant Ms Anngow pleaded guilty to three charges of driving whilst her licence was suspended, third or subsequent1, and one charge of failing to stop for red or blue flashing lights.2

[2]	Judge Turner sentenced Ms Anngow to 11 months’ imprisonment and disqualified her from holding or obtaining a motor vehicle drivers licence for a total of one year and six months.3

1 Land Transport Act 1998, ss 32(1)(c) and 32(4).
2 Sections 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2).
3 Police v Anngow [2020] NZDC 21151.

ANNGOW v NEW ZEALAND POLICE [2021] NZHC 128 [10 February 2021]

[3]	Ms Anngow’s notice of appeal was filed out of time. No opposition was raised to the appeal on that ground. In the circumstances of this case I am satisfied that leave to appeal out of time should be granted.

[4]	Ms Anngow appeals the Judge’s sentence on the grounds that the sentence is manifestly excessive.

Circumstances of the offending

[5]	On 17 April 2014 Ms Anngow was convicted and sentenced for driving while disqualified third or subsequent. In February 2020, her licence was suspended as a result of receiving excess demerit points. That suspension ended on 23 May 2020.

[6]	On 26 March 2020, Ms Anngow was driving in Timaru, bound for Dunedin, when she was stopped by police.

[7]	On 7 April 2020, Ms Anngow was again caught driving, this time in Mosgiel. As she exited a petrol station, police activated their lights and siren. Instead of stopping she accelerated hard away from the petrol station.

District Court Judge’s Decision

[8]	Judge Turner began by setting out the charges and the sentencing options available. He considered Ms Anngow’s previous convictions, noting that she had had four prior convictions for driving while suspended or disqualified4 and had breached court sentences on six previous occasions.5

[9]	Next, the Judge considered the pre-sentence reports. He noted Ms Anngow’s chaotic lifestyle and that she would not consent to home detention. He referred to the report writers who questioned Ms Anngow’s ability to comply with a lesser sentence like community detention.

4  Police v Anngow at [10].
5 Police v Anngow at [11] and [12].

[10]	The Judge acknowledged Ms Anngow’s personal circumstances, including solo parenting a 16-year-old child, her accommodation difficulties and the amount of her outstanding fines ($8,790.96) for which no payments had been received for over a year.6

[11]	The Judge then addressed the “gravity” of the offending, specifically stating:

[22]	… In my view this was a deliberate and persistent flouting of the notice suspending your licence. It had been served on you in February of this year. A month later you chose to drive a car to Dunedin in the course of your employment relocating cars. You were stopped in Timaru.

[23]	Less than two weeks after that offending, in Mosgiel you attempted to flee police and drove dangerously in a borrowed car. You had the car because you thought police might not recognise the vehicle or you. And less than four weeks later you were again caught driving another vehicle in Timaru, relocating that from Nelson.

[24]	This is your seventh conviction for like offending within eight years with three in three months.

[12]	The Judge adopted a starting point of 18 months’ imprisonment. He cited the case of Iwikau v Police7 as authority for the proposition that a sentence between six and ten months would be appropriate for a seventh offence, and noted that:

[t]he authorities establish a trend of substantial increases for subsequent offending between fifth and tenth sentences.8

[13]	The Judge did not impose an uplift for Ms Anngow’s earlier offending, noting this was taken into account in setting the starting point.

[14]	He gave a discount of 25 per cent for Ms Anngow’s guilty pleas.

[15]	The Judge granted a further discount of 10 per cent for Ms Anngow’s personal circumstances, though he noted “the information [was] somewhat sketchy and limited” in that regard.9

6 Police v Anngow at [19] and [20].
7 Iwikau v Police [2013] NZHC 2515.
8  Police v Anngow at [25].
9  Police v Anngow at [28].

[16]	The Judge thought imprisonment was appropriate because Ms Anngow had “deliberately and persistently ignored [her] legal obligations”. He noted that she had taken steps to conceal her offending and had fled from police.

[17]	In declining to grant leave to apply for a substituted sentence, the Judge commented that the persistent and deliberate nature of Ms Anngow’s offending meant that home detention would not hold her accountable or be sufficient deterrence.

[18]	Alongside imprisonment, the Judge disqualified Ms Anngow from driving for one year on the driving while suspended charges, and six months (cumulative) on the failing to stop charge. He also remitted the appellant’s fines of $8,780.96 in light of the sentence imposed.10

Principles on Appeal

[19]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011.

[20]	Section 250(2) of the Act relevantly provides that the Court must allow an appeal if satisfied that:

(a)	For any reason there is an error in the sentence imposed; and

(b)	A different sentence should be imposed.

[21]	The Court must dismiss the appeal in any other case.11

[22]	The appellate court should not intervene where the sentence is within the available range that can properly be justified by accepted sentencing principles.12

10 Police v Anngow at [37].
11 Criminal Procedure Act 2011 s 250(3).
12 Tutakangahau v R [2014] NZCA 279 at [36].

[23]	However, the appeal court should substitute its own view if the sentence under appeal is “manifestly excessive” or one that cannot be justified on the application of relevant sentencing principles.13

[24]	The Court of Appeal has repeatedly held that the focus in sentence appeals remains on whether the sentence imposed is within range, rather than the process by which the sentence was reached.14 An appeal court should not engage in mere “tinkering”.15

Appellant’s submissions

[25]	Mrs Campbell acknowledged that the starting point of 18 months’ imprisonment was appropriate in the circumstances and in line with the case authorities.16 She did not challenge the various adjustments made by the Judge to the starting point.

[26]	However, she submitted that the Judge paid no proper regard to the principles under ss 8(g) and 16 of the Sentencing Act. She submitted that the Judge’s simple statement “the only response open to the Court is a sentence of imprisonment”17 demonstrated the Judge did not consider other less restrictive options such as a combination of significant community work and supervision. She acknowledged home detention was not advanced as Ms Anngow had no address suitable for an electronically monitored sentence.

[27]	Mrs Campbell submitted that the Judge erred because he did not observe that Ms Anngow had never previously had the benefit of a rehabilitative sentence such as supervision (which was recommended by the pre-sentence report writer) and that such a sentence would have provided her with skills to ameliorate her impulsivity, lack of consequential thinking and chaotic lifestyle.

13 Ripia v R [2011] NZCA 102 at [15].
14 Islam v R [2020] NZCA 140 at [32]; D (CA 197/2014) v R [2014] NZCA 373 at [18], Tutakangahau
v R [2014] NZCA 279 at [36].
15 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler v Commissioner of Inland Revenue [2017] NZHC 2888 at [16]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
16  Police v Anngow at [25].
17  Police v Anngow at [31].

[28]	In addition, Mrs Campbell submitted the Judge did not pay sufficient regard to the impact of imprisonment on the relationship between Ms Anngow and her teenage daughter.

[29]	Finally, Mrs Campbell submitted that a significant sentence of community work is viewed as a punitive sentence in the hierarchy of sentencing and should not have been disregarded by the Judge. She referred to the statements of the Court of Appeal in R v Rawiri that a sentence of imprisonment is a measure of last resort.18

Respondent’s submissions

[30]	Ms Norman for the respondent submitted that there was no error in the Judge’s decision and a short a term of imprisonment was the least restrictive outcome in the circumstances.

[31]	She also submitted that given Ms Anngow had received sentences of community detention before and gone on to reoffend, that it was appropriate for the Judge to go to the next level in the sentencing hierarchy, especially given the absence of a suitable address for an electronically monitored sentence.

[32]	Further Ms Norman submitted that the Judge did expressly turn his mind to the principles in ss 8(g) and 16 because he specifically rejected that a sentence of imprisonment was disproportionate to the degree of criminality in the offending.19

[33]	Later, in declining to grant leave to apply for a substituted sentence, the Judge observed:

There is no address available but, in any event, given the persistent nature of your offending and its deliberateness, I do not consider that home detention would meet the purposes and principles of holding you accountable and deterring you from driving whilst your licence was suspended.

[34]	Ms Norman submitted appropriately that s 16 must also be read alongside s 17 of the Act which confirms the Court’s discretion to impose a sentence of imprisonment on an offender if the Court is satisfied on reasonable grounds that the offender is

18 R v Rawiri [2011] NZCA 244 at para [18].
19 Anngow v Police at [30].

unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate. After traversing Ms Anngow’s criminal history, including her history of non-compliance, and the pre-sentence reports, Ms Norman submitted it was well within the Judge’s discretion to refuse a substituted sentence for this precise reasoning.

Discussion

Was a sentence of imprisonment the least restrictive outcome?

[35]	Section 10A(2) of the Sentencing Act provides the following hierarchy of sentences:

(a)	discharge or order to come up for sentence if called on:

(b)	sentences of a fine and reparation:

(c)	community-based sentences of community work and supervision:

(d)	community-based sentences of intensive supervision and community detention:

(e)	sentence of home detention:

(f)	sentence of imprisonment.

[36]	A sentence of imprisonment is therefore the most severe sentence.

[37]	One of the purposes of sentencing is to assist in the offender’s rehabilitation and reintegration.20 This purpose must be balanced against the purposes of promoting in the offender a sense of responsibility21, denouncing the conduct22, deterring

20 Sentencing Act 2002, s 7(1)(h).
21  Section 7(1)(b).
22  Section 7(1)(e).

Ms Anngow and others from offending in a similar manner23 and protecting the community from the offender.24

[38]	Ms Anngow has not been sentenced to, nor had the benefit of, a sentence of supervision. She has been sentenced to community detention on two occasions. Her criminal history records that in late 2016 she received a sentence of imprisonment for breaching the conditions of community detention. She has breached sentence on six occasions.

[39]	The fact that Ms Anngow has repeatedly and deliberately driven while suspended is cause for concern. The pre-sentence report dated 7 July 2020 states she borrowed a friend’s car in an attempt to conceal her driving. Further, in the April 2020 offending, Ms Anngow attempted to evade police by fleeing at speed. The pre- sentence report states there was “no indication of reflection on the potential impact on others of her speeding”.

[40]	Both pre-sentence reports state Ms Anngow lives a “chaotic lifestyle”. The breaches of community work and of community detention are indicative of her inability to comply with community-based sentences. While Ms Anngow is engaged in a chaotic and transient lifestyle, I consider a sentence of supervision may be setting her up to fail to achieve her obligations under that sentence.

[41]	Based on the information available to the court, I consider it is unlikely that Ms Anngow is likely or able to comply with the sentence of supervision and community work.

[42]	In my view, a custodial sentence is not disproportionate to the level of criminality. I agree with the District Court Judge that the deliberate, persistent and repetitive nature of the offending means that a sentence of imprisonment is the least restrictive sentence that can be imposed in the circumstances. The sentence must promote a sense of responsibility in Ms Anngow, denounce her conduct and deter  Ms Anngow and others from committing similar offending.25

23  Section 7(1)(f).
24  Section 7(1)(g).
25 Sentencing Act 2002 s 7 (1)(e) and (1)(f).

The custodial sentence

[43]	It is common ground that the sentence starting point was appropriate. The following cases illustrate the range of starting points for offending of this kind:

1.	Iwikau v Police: a starting point of 10 months’ imprisonment for the appellant’s sixth conviction was imposed.26

2.	R v Finch: an uplift of 14 months’ imprisonment was applied to the starting point for the offenders fifth, sixth and seventh driving while disqualified convictions.27

3.	Jonathan v Police: the offender was convicted of sixth and seventh charges of driving whilst disqualified. The District Court Judge adopted a starting point of 12 months
imprisonment which was uplifted by four months, bringing the starting sentence to 16 months’ imprisonment.28

4.	Jenkins v Police: on appeal a starting point of nine months’
imprisonment was adopted for a seventh conviction of driving while disqualified. This was uplifted by three months for a sixth conviction, bringing the overall starting point for the driving offending to 12 months imprisonment.29

[44]	In my view, in light of these authorities, the global starting point of 18 months’ imprisonment was within the range available to the Judge.

[45]	Ms Anngow has a criminal history that records some 20 convictions between 2008 and 2018. While the Judge could have applied an uplift in respect of this history he did not.

26 Iwikau v Police [2013] NZHC 2515.
27 R v Finch (DC Christchurch CRI-2011-009-010156, 21 June 2012). Upheld upon appeal in Finch v R [2012] NZCA 446.
28 Jonathan v Police [2019] NZHC 1115 at [5].
29 Jenkins v Police [2018] NZHC 2055 at [9].

[46]	In respect of mitigating factors personal to the offender the District Court Judge said:

[28] Although the information is somewhat sketchy and limited, I am prepared to accept you have personal issues, including anxiety. You have responsibilities to a 16-year-old and I need to take [that] into account. I am prepared to allow 10 per cent for those matters which I consider generous given the girth of information.

[47]	Mrs Campbell’s written submissions do not mention Ms Anngow suffering from anxiety, nor was I able to locate any evidence of this in the court file. I acknowledge Ms Anngow’s responsibilities to her daughter, but I was advised by Mrs Campbell in oral submissions that Ms Anngow’s daughter is being well cared for by her grandparents.

[48]	In my view, a discount of 10 per cent for personal issues is extremely generous. A discount of 25 per cent was available and appropriate for Ms Anngow’s guilty pleas. Accordingly, I consider the end sentence of 11 months’ imprisonment was within range and the final outcome not manifestly excessive.

[49]	The Court must impose a disqualification period of one year or more where a person is convicted of their third or subsequent conviction for driving while disqualified, accordingly the disqualification period of one year on each of the charges was appropriate.

[50]	I consider the disqualification period of six months for the failure to stop for red and blue flashing lights was appropriate.

Conclusion

[51]	The sentence imposed by the Judge was well within the range available to him having regard to the circumstances of the case and was not manifestly excessive.

Outcome

[52]	The appeal is dismissed.

Doogue J

Solicitors:
Josh Lucas, Christchurch RPB Law, Dunedin