Afamasaga v Police

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…