Afamasaga v Police

[2013] NZHC 2763

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-454-23 [2013] NZHC 2763

ALAN RAY AFAMASAGA Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   22 October 2013

Counsel:                  P Knowsley for Appellant

D J Flinn for Respondent

Judgment:                22 October 2013

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      This is an appeal against a sentence of seven months’ imprisonment for a fifth offence of driving while intoxicated.1   The offence occurred on 9 November 2012.  It was accompanied by dangerous driving on an open road, and then driving on a footpath within the town environs.  Mr Afamasaga’s breath alcohol reading was 1147 micrograms per litre of breath.

[2]      Mr Afamasaga’s earlier offending involved:

1979 – no level known;

1995 – 956 mg;

2005 – 1137 mg;

2005 – 630 mg.

1      Police v Afamasaga DC Levin CRI 2012-031-001410, 26 June 2013, Judge Ross.

Mr Afamasaga was sentenced to disqualification for 18 months.

[3]      Mr Afamasaga has previously been sentenced to imprisonment but not for this offending.  On the occasion of his last drink driving conviction he was sentenced to supervision and community work, with a warning that a harsher penalty was likely next time.

[4]      On sentencing Judge Ross considered it an occasion to focus on deterrence. He noted the level of intoxication, the demonstrated bad driving, the defendant’s lack of insight, and the previous offences.  His Honour considered that home detention would be insufficient denunciation, and not convey sufficient “personal or wider” deterrence.  It was noted that some cases of drink driving had been met with a home detention sentence, but Judge Ross considered them more benign cases than the present.

[5]      Mr Afamasaga is a sickness beneficiary.   He moved to Levin so he could assist his elderly mother who lives in a Home in Levin.  The appeal focuses on the decision to decline home detention.  It is submitted it was wrong to allow the need to deter to control the home detention decision,2 and the Judge failed to consider all the purposes  of  the Act,  including  rehabilitation  and  the  need  to  impose  the  least restrictive sentence.

[6]      Matters telling in favour of home detention were submitted to be: (a) the fact that the previous offence was seven years ago;

(b)      consistency with other decisions;

(c)       the fact that home detention is not a soft option; (d)    the other penalty involved in disqualification.

[7]      The comparable authority relied upon is Carran v Police.3     In that case a

sentence of seven months’ imprisonment was quashed and Whata J substituted one

of six months’ community detention.   It was  Mr Carran’s fifth offence, and his

2      R v Minikpersadh [2011] NZCA 452 being cited.

3      Carran v Police [2013] NZHC 1450.

reading was 1266 mg.   His driving, however, was innocuous; his previous offence had  been  10  years  ago  and  the  one  before  that  a  further  10  years  ago.    Here Mr Afamasaga has two convictions that are seven years old, and was driving in a manner that put the community at great risk.   More importantly, Carran does not purport to be a tariff case, or to curtail the exercise of the home detention discretion in a particular case.  Here Judge Ross was alert to the option of home detention and that it had been imposed in other cases.  His Honour recognised its availability but considered it inadequate to meet the Act’s needs in the particular case.

[8]      It is not as if Mr Afamasaga brought a compelling case to the table.   An assessment had been arranged for the Salvation Army Bridge Programme but he chose not to go as he was looking for work.  He claimed to have stopped drinking but the report writer noted he said the same thing following his offending in 2007. A condition imposed at that time to drug and alcohol counsellors was not complied with.  Mr Afamasaga did not attend the appointments.

[9]      On the morning of the appeal hearing, a report was received from MidCentral Health.     Mr Afamasaga  had  arranged  an  assessment.     To  the  report  writer Mr Afamasaga acknowledged an  alcohol problem and presented  to two separate professionals as having insight and commitment.   The service is optimistic about Mr Afamasaga turning up for further appointments.  He has also filed a letter today expressing remorse.

[10]     In my view it was open to Judge Ross to conclude that Mr Afamasaga needed a more direct message than a sentence of home detention would afford.  For myself I would also have emphasised his poor response to previous opportunities.   People ought not to assume they will continue to be offered.

[11]     The sole issue is whether the current report changes matters.  It could be that the reality of a prison term has hit home, and the threat of it has had the effect that it was intended to.

[12]     Mr Afamasaga was assessed as suitable for home detention.  While I would otherwise have dismissed the appeal, and find no error in the sentencing exercise, I

am satisfied the new evidence supports Mr Afamasaga having one more chance. Mr Afamasaga  is  advised  that  the  authorities  can  apply  for  the  sentence  to  be cancelled if the conditions are not complied with.  I emphasise that any signs of not attending counselling or courses should result in such an application.

[13]     The sentence of imprisonment is quashed.  In its place I impose a sentence of four months home detention.  Mr Afamasaga is:

(a)       to reside at 15 Forth Street, Levin, and is to be there from 9.00 a.m.

Thursday,  24 October 2014  to  await  the  imposition  of  monitoring arrangements;

(b)to undertake an assessment for a Departmental Medium Intensity Rehabilitation Programme and if found suitable complete the programme   to   the   satisfaction   of   your   Probation   officer   and Programme Provider;

(c)      to attend, participate in and adhere to the rules of a maintenance group once you have completed the Department Medium Intensity Rehabilitation  Programme  to  the  satisfaction  of  your  Probation Officer and Programme Provider;

(d)to attend a drug and alcohol assessment and attend and complete any counselling/education, including residential treatment, recommended to the satisfaction of your Probation Officer and Treatment Provider. In regards to courses,  I draw to the Service’s attention the report receiving today from MidCentral Health and its suggestions;

(e)      to attend any other counselling/programme or education designed to reduce your risk of re offending to the satisfaction of the Programme Provider and your Probation Officer;

(f)      to abstain from the consumption and/or possession of alcohol for the duration of the home detention sentence.

[14]     I impose for six months as special post detention conditions, conditions (b) to

(f) as above.

Simon France J

Solicitors:

P Knowsley, Barrister & Solicitor, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North