IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-50 [2013] NZHC 1740

BETWEEN	ANDREW HARRE Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	10 July 2013

Appearances:	R Gowing for appellant
J Rhodes for respondent

Judgment:	10 July 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ANDREW HARRE v NEW ZEALAND POLICE [2013] NZHC 1740 [10 July 2013]

[1]       Mr  Harre  pleaded  guilty  in  the  District  Court  at  Opotiki  to  charges  of aggravated disqualified driving, failing to stop when followed by a red and blue flashing  lights,  driving  a  vehicle  in  a  dangerous  manner  and  failing  to  remain stopped for an enforcement officer.   On 13 June 2013, Judge Wolff sentenced Mr Harre to 15 months imprisonment.   He also disqualified Mr Harre from driving for periods that are not in dispute on the present appeal.

[2]       Mr Harre appeals to this Court against the sentence of imprisonment the Judge imposed.  He says that the Judge erred in the manner in which he constructed the sentence, with the result being a sentence that is manifestly excessive.

Background

[3]       All of the charges arose as a result of an incident that occurred in the early hours of 14 March 2013.  At about 11.55 pm the previous evening, Mr Harre was driving his vehicle along a suburban street in Manurewa when he encountered a police alcohol checkpoint.  After speaking to a constable at the checkpoint, he then reversed away at speed and left the scene.   A police patrol vehicle followed Mr Harre’s vehicle with both its red and blue flashing lights and siren in operation.  Mr Harre refused to stop, and instead drove around the Manukau urban area for approximately 15 minutes.  During this time he was travelling at speeds at up to 50 to 60 kilometres per hour over the posted speed limits.   When he was eventually stopped,  Mr Harre attempted  to  evade arrest  by running from  his  vehicle.    He candidly acknowledged that he was a disqualified driver, and that he had driven away from the checkpoint because of that fact.

The structure of the sentence

[4]       Counsel for Mr Harre contends that the sentencing structure adopted by the Judge  meant  that  previous  convictions  were  double-counted  when  fixing  the sentence to be imposed on Mr Harre.   He relies in this context on the following
passages from the Judge’s sentencing remarks:

[9]     The lead sentence is the charge of driving whilst disqualified, which carries a two year imprisonment.   Given that disqualified driving is disqualified driving there could be no really more aggravating feature than the number of previous times you have done it. Aggravating features such as having alcohol as well, or dangerous driving, would usually be added.  So starting from the Sentencing Act 2002 consideration that the Court needs to consider the maximum sentence in some cases if it is a serious case of its type, I am satisfied that this is near to the need for a maximum sentence and start on the charge of driving whilst disqualified at 18 months.

[10]   I  now  consider  whether  there  are  any  mitigating  or  aggravating features.  One mitigating feature is that you have left Auckland and returned now to Opotiki, thus reducing the serious lifestyle or bad lifestyle that you were leading then.   You also have been in full-time employment.   That would  result  in  an  allowance  on  the  positive  side  but  without  double counting your previous history means that there should be an uplift, particularly for  the  dangerous  driving,  and for  the failing to  stop.   The sentence of 18 months then is after a small reduction for mitigating factors and  a larger increase for the features that I have  mentioned by way of aggravation is a sentence of 18 months from which I am required to give you a discount for your early plea of guilty.   The end sentence, therefore, is a sentence of 15 months’ imprisonment.   That is imposed on the charge of driving whilst disqualified.  It is a sentence of short duration in the meaning of the Sentencing Act 2002 and brings into play a consideration of a sentence of home detention.   The home detention address offered is not a suitable address and neither would it be a suitable deterrent to you or to other repeat disqualified   drivers   to   sentence   you   to   home   detention   in   these circumstances.

[5]       Counsel for Mr Harre contends that at [9] the Judge set a starting point of 18 months  imprisonment  that  reflect  Mr  Harres’ culpability  and  also  his  previous convictions on all of the charges.  He then added a further uplift at [10] to reflect previous convictions.   This resulted, counsel submits, in a sentence that was manifestly excessive.

[6]       I agree that it is somewhat difficult to ascertain from the paragraphs set out above the precise manner in which the Judge constructed his sentence.  In the end, however,  I consider that, on any view, this was serious offending.   It  involved complete disregard of the fact that Mr Harre was subject to an order disqualifying him from driving.  It also involved him deliberating leaving a police checkpoint, and then leading the police on a pursuit through an urban area at speed considerably in excess of the posted speed limits.  In those circumstances, I do not see how a starting point of 15 months imprisonment could be criticised to reflect Mr Harre’s culpability on all charges.  This is particularly so given the fact that he has now been convicted of driving whilst disqualified on no fewer than seven occasions.

[7]       To that starting point must be an uplift to reflect previous convictions for failure to stop and driving with excess breath alcohol.  Those could easily justify an uplift of three months imprisonment, leading to an end starting point of 18 months imprisonment before taking into account mitigating factors.

[8]       The Judge applied a discount for mitigating factors of three months.   This equates to roughly 17 per cent.  The Judge was not necessarily required to apply the maximum discount permitted in Hessell v R of 25 per cent.   In Hessell the Supreme Court emphasised that a sentence is entitled to take a robust view of the discount to be given for guilty pleas.  The fact that guilty pleas are entered early is but one of the factors to be taken into account.    Other factors, such as the strength of the prosecution case, may also be taken into account.

[9]       In  the  present  case,  however,  Mr  Harre  appeared  for  the  first  time  on

14 March  2013.    On  9  May 2013,  his  counsel  asked  for  the  proceeding  to  be transferred from Manukau to Opotiki on the basis that guilty pleas would be entered following transfer.   He then appeared in the District Court at Opotiki on 16 May
2013 and entered guilty pleas.  On this basis it must be accepted, as the Judge rightly acknowledged, that he entered his pleas at a very early stage.

[10]     In addition, the Judge identified two further mitigating factors.  These were the fact that Mr Harre had left Auckland and returned to Opotiki in order to get away from the bad lifestyle he had been leading in Auckland.   The second mitigating factor was that Mr Harre has been in full-time employment.  When those two factors are taken into account, I consider that a discount of at least 25 per cent ought to have been applied.  This means that the end starting point of 18 months should have been reduced by approximately four and a half months.  Applying a rounding process, I consider that an end sentence of 13 months imprisonment was therefore appropriate.

[11]     Although this is just two months less than the Judge imposed on Mr Harre, I
consider as a matter of principle that it is important for Mr Harre to receive the benefit of the three mitigating factors the Judge identified.

Result

[12]	For these reasons, the appeal is allowed to the extent that the sentence of 15 months imprisonment is quashed.   In its place I impose a sentence of 13 months
imprisonment. All of the other orders that the Judge made remain intact.

Lang J

Solicitors:
Gowing & Co, Whakatane
Crown Solicitor, Tauranga