Fox v Police

[2017] NZHC 573

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000077 [2017] NZHC 573

BETWEEN

JOSHUA CHARLES FOX

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 March 2017
Counsel:	S Bhardwaj for Appellant ML Dillon for Respondent
Judgment:	28 March 2017

ORAL JUDGMENT OF DOWNS J

Solicitor/Counsel: Bridge Law, Hamilton. Crown Solicitor, Hamilton.

FOX v POLICE [2017] NZHC 573 [28 March 2017]

[1]      This is a sentence appeal.  On 12 December 2016, Judge Connell sentenced the appellant to a term of 18 months imprisonment in relation to a raft of offences committed between October 2015 and May 2016.1    In concise written submissions, Mr Bhardwaj candidly acknowledged the appeal was pursued “on instructions” and “challenging”, and in oral submissions he refocused the appeal to a challenge to the exercise of a discretion in relation to home detention.  More about this point shortly.

[2]      On 31 August 2015, the appellant drove while disqualified.  He did likewise on 6 October 2015.  On this occasion he failed to stop.  Police gave pursuit.  The appellant was promptly arrested and searched. A small amount of methamphetamine was found on him.  So too ammunition.  On 3 May 2016, the appellant went to a car yard.  He took a car (the keys had been left in the ignition).  He then went to a petrol station and stole $111 worth of petrol.  The car was found by Police (undamaged) several days later.   All of the offending was committed while the appellant was sentenced to a term of community work, of which he had completed little.

[3]      The Judge adopted a starting point of 10 months’ imprisonment in relation to the unlawful taking of the motor vehicle.  His Honour deducted three months for the appellant’s early guilty plea.  After totality adjustment, the Judge adopted a starting point  of  14  months’ imprisonment  in  relation  to  the  driving  while  disqualified offences, which constituted the appellant’s fourth and fifth of that type.  The Judge uplifted  the  starting  point  by  one  month  to  reflect  the  appellant’s  previous convictions.  His Honour then mitigated the sentence by five months in light of the guilty pleas.

[4]      The Judge imposed a term of one month’s imprisonment for the breach of community work.   That term was made cumulative upon the driving while disqualified offending, in turn made cumulative on the sentence for the unlawful taking of the motor vehicle; an overall sentence of 18 months’ imprisonment.

[5]      The Judge declined to impose home detention.   His Honour regarded the appellant’s criminal history as decisive, particularly his poor compliance with Court orders.

[6]      Mr Bhardwaj abandoned a contention the sentence was manifestly excessive because the Judge adopted an unduly high starting point in relation to the driving while disqualified offending.   That concession was responsibly made because reference to Apiata v Police2  and the cases mentioned therein reveals the starting point  adopted  by  Judge  Connell  in  relation  to  the  driving  while  disqualified offending was towards, and possibly at, the bottom end of the available range for that

offending as a third or subsequent offence.

[7]      Mr  Bhardwaj  focused  attention  on  the  proposition  the  Judge  erred  in declining to impose home detention.  No recitation of authority is required for the proposition intervention in this context requires error on the part of the Court below. The appellant has a not in-extensive criminal history which includes both serious offending (for example, wounding with intent to cause grievous bodily harm and kidnapping), and relatively less serious offending, such as driving while disqualified. As observed, the index offending was committed while the appellant was in breach of a sentence of community work.  It was open to the Judge to place considerable weight on this consideration.   So too risk of re-offending; the probation service assessed the appellant as being at a high risk of re-offending.

[8]      Mr Bhardwaj submitted the appellant had not previously been sentenced to home detention.  I accept that submission.  It does not follow, however, the Judge was obliged to pass a sentence of that nature.

[9]      The appeal is dismissed.

……………………………..

Downs J