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Afeaki v Police

Afeaki v Police

Case [2021] NZHC 2644 5 October 2021

Sentencing

Intellectual Disability

Rehabilitation

Community Protection

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000215

[2021] NZHC 2644

MICHAEL GEORGE BROWN AFEAKI

v

NEW ZEALAND POLICE

Hearing: 27 September 2021

Appearances:

N Singh for the Appellant

S Becroft for the Respondent

Judgment:

5 October 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 5 October 2021 at 3 pm Registrar/Deputy Registrar

AFEAKI v NEW ZEALAND POLICE [2021] NZHC 2644 [5 October 2021]

Introduction

[1] Mr Afeaki appeals a sentence of 21 months’ imprisonment imposed by Judge Bouchier in the Manukau District Court on 5 May 2021.1 Mr Afeaki pleaded guilty to six driving related charges. These arose from two separate incidents, separated by nearly 11 months, namely:

30 April 2020

(a)driving with excess breath-alcohol (765 mcg/l) (third or subsequent);2

(b)driving while disqualified (third or subsequent);3

22 March 2021

(c)driving with excess breath-alcohol (1,066 mcg/l) (third or subsequent);4

(d)driving while disqualified (third or subsequent);5

(e)careless driving;6 and

(f)failing to stop and ascertain injury.7

[2] There are broadly three arguments advanced on appeal. The primary argument is that the sentencing process went awry when the Judge did not permit counsel further time to canvas suitable treatment/disposition options under ss 34, 38(1)(c) and (d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act). Had the report now available from clinical psychologist Ingalise Jensen (Jensen Report) been

1      See New Zealand Police v Afeaki [2021] NZDC 8513 [Sentencing notes].
2      Land Transport Act 1998, s 56(1) and (4): carrying a maximum penalty of two years’ imprisonment or a fine not exceeding $6,000, and the court must disqualify the person for more than one year.
3      Section 32(1)(a) and (4): carrying a maximum penalty of two years’ imprisonment or a fine not exceeding $6,000, and the court must disqualify the person for more than one year.
4      Section 56(1) and (4).
5      Section 32(1)(a) and (4).
6      Section 37(1): carrying a maximum penalty of a fine not exceeding $3,000 and whatever disqualification period the court thinks fit.
7      Section 35(1)(c): carrying a maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 and the court must disqualify the person for six months or more.

before the Judge there would have been jurisdiction to make an order under s 34(1)(b)(ii) of the CPMIP Act which recognised Mr Afeaki’s intellectual disability. The proposition now advanced is that, because that relevant information was not before the Court, the interests of justice were not met.

[3] The second, alternative, argument is that the Judge failed to take into account mitigating factors personal to Mr Afeaki with the result that the end sentence is manifestly excessive and disproportionately severe.

[4] The third argument is that imprisonment is not the least restrictive outcome appropriate in the circumstances and consideration ought to have been given to a community sentence with intensive supervision.

[5] The respondent argues that the threshold requirements for an order under the CPMIP Act are not met; the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Afeaki v Police

Details

AGLC: Afeaki v Police [2021] NZHC 2644
Case: [2021] NZHC 2644
Decision Date: 5 October 2021

CaseChat Overview and Summary

The case of Afeaki v Police involved an appeal by Michael George Brown Afeaki against a sentence of 21 months’ imprisonment imposed by Judge Bouchier in the Manukau District Court. Mr Afeaki pleaded guilty to six driving related charges stemming from two separate incidents. The primary arguments advanced on appeal were that the sentencing process was flawed because the Judge did not allow sufficient time to canvas suitable treatment options under the Criminal Procedure (Mentally Impaired Persons) Act 2003, and that the sentence was manifestly excessive given Mr Afeaki’s personal circumstances. The Court found that the Judge could not have considered an order under the CPMIP Act because there was insufficient evidence that Mr Afeaki’s mental impairment required compulsory treatment. However, the Court found that there were reasonable grounds to believe Mr Afeaki has an intellectual disability under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. The Court encouraged the prison manager to initiate an assessment under section 29 of the IDCCR Act. The Court also found that the sentence imposed was not manifestly excessive and was not an inappropriate outcome in the circumstances. However, the Court granted leave for Mr Afeaki to apply to commute his sentence to an electronically monitored sentence at a suitable rehabilitation facility. The Court directed that the Jensen Report be provided to the prison manager for consideration of the IDCCR Act assessment pathway.

In summary, the appeal was dismissed but leave was granted for Mr Afeaki to apply to commute his sentence to an electronically monitored sentence at a suitable rehabilitation facility, and the Jensen Report was directed to be provided to the prison manager for consideration of the IDCCR Act assessment pathway. The Court found that the sentence imposed was not manifestly excessive and was an appropriate outcome given the need for denunciation and deterrence of Mr Afeaki’s drink-driving offences. However, the Court highlighted the need for rehabilitation and care to address Mr Afeaki’s intellectual disability, trauma and alcohol dependency.

Orders