Afeaki v Police
[2021] NZHC 2644
•5 October 2021
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 appropriate response to the Jensen Report is the pathway provided under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) and the end sentence was neither manifestly excessive nor inconsistent with sentencing principles.
Leave to produce the Jensen report
[6] The appellant sought leave to adduce the Jensen Report. The respondent accepts that Ms Jensen’s report is credible, fresh and cogent. It does not oppose leave. Accordingly, I grant leave.
[7] I turn first to the facts of the offending before summarising the relevant procedural history.
The offending
30 April 2020
[8] Shortly before midnight on 30 April 2020, Mr Afeaki was pulled over after Police observed him driving erratically. There was a box of beer and three empty bottles in the passenger footwell. Police could smell alcohol on Mr Afeaki’s breath.
An evidential breath test returned a result of 765 micrograms of alcohol per litre of breath. Further checks showed that Mr Afeaki was disqualified from driving at the time, having been indefinitely disqualified on 28 May 2019 and 20 August 2012. By way of explanation, he stated that he had asked his sister if he could use her vehicle and initially stated that he had not been drinking.
[9] Mr Afeaki was subsequently charged with driving with excess breath alcohol (third or subsequent) and driving while disqualified (third or subsequent).
22 March 2021
[10] At around 11.00 pm on 22 March 2021, Mr Afeaki was driving through a residential area with a posted speed limit of 50 kilometres per hour. The road was dry, the streetlights were on and traffic was light. The victim was shortly ahead of Mr Afeaki and indicated right to turn into a driveway. Mr Afeaki drove his vehicle into the back of the victim’s vehicle after he failed to see her slow down to turn. This caused minor damage to the victim’s vehicle. The victim pulled her car over to the side of the road but Mr Afeaki failed to remain at the scene to ascertain if anyone was hurt or give details. He drove around the victim’s vehicle and sped off.
[11] The victim and a witness followed Mr Afeaki for some distance. Police arrived shortly after. Subsequent checks revealed that Mr Afeaki was disqualified from driving. His speech was slurred and he smelt of alcohol. An empty bottle of whiskey was located in the vehicle. An evidential breath test returned a result of 1,066 micrograms of alcohol per litre of breath, over four times the legal limit.
[12] The offending on 30 April 2020 and 22 March 2021 gave rise to Mr Afeaki’s eighth and ninth convictions for driving with excess breath or blood alcohol levels.
Procedural history
[13] Mr Afeaki first appeared in the Manukau District Court for the 30 April 2020 offending on 20 May 2020. He was remanded on bail with conditions not to drive and not to consume alcohol.
[14] Mr Afeaki appeared on 10 June 2020 before Judge McIlraith and entered guilty pleas to both charges. Judge McIlraith directed a pre-sentence report with appendices.
[15] The sentencing was scheduled for 4 August 2020 but was adjourned to allow Mr Afeaki to complete a Community Alcohol and Drug Services (CADS) programme. Ms Singh states that Mr Afeaki’s progress in the programme was being judicially monitored.
[16] Mr Afeaki appeared before Judge Moala on 20 October 2020. The sentencing was adjourned a second time. I understand that Mr Afeaki told the Judge that he did not go to CADS because he has a problem with reading and writing. He confirmed that he previously did such a course in 2017.
[17] Mr Afeaki next appeared before Judge Moala on 21 December 2020. His sentencing was adjourned for a third time, again to allow him to complete the CADS programme.
[18] Mr Afeaki appeared before Judge Moala again on 10 March 2021 for monitoring. A letter from Tupu Services, the Pasifika arm of CADS, confirmed that Mr Afeaki had completed six two-hour group sessions and needed to attend two more sessions to complete the programme. The sentencing was therefore adjourned for a fourth time so that Mr Afeaki could attend the final two sessions. A new sentencing date of 23 April 2021 was set.
[19] Mr Afeaki was arrested on 22 March 2021 for further offending. He was also in breach of his bail conditions not to drive or consume alcohol. He appeared before a Community Magistrate on 23 March 2021 and was remanded in custody by consent.
[20] He appeared before Judge McNaughton on 19 April 2021 and entered guilty pleas to all four charges arising from the 22 March 2021 offending. The charges were put through to the existing sentencing date of 23 April 2021.
[21] Mr Afeaki then appeared before Judge Moala on 23 April 2021 for sentencing on both sets of charges. He had been unable to complete his final two CADS sessions
due to his arrest on 22 March. Judge Moala adjourned the sentencing, indicating that she would grant Mr Afeaki bail to a residential treatment facility if a suitable facility could be found. Judge Moala scheduled a further mention before her on 5 May 2021 to enable counsel to make those inquiries.
[22] Mr Afeaki’s counsel filed a memorandum prior to the next monitoring date advising the Court that she was yet to hear back from potential residential treatment providers. She also advised that she had contacted a neuropsychologist to formally assess Mr Afeaki “for a developmental delay disorder or other cognitive defects”.
The decision under appeal
[23] On 5 May 2021, the matter was called before Judge Bouchier. Counsel for Mr Afeaki asked for a further monitoring appearance to find a suitable residential treatment facility. The Judge declined in view of the substantial period of time which had elapsed since the original offending on 30 April 2020. The Judge noted the further offending “at an even more serious level”.8 She proceeded with sentencing.
[24] The Judge observed that although a rehabilitative sentence may have been the focus for the first set of charges, the fact that Mr Afeaki had offended again at a serious level underscored a need for denunciation and deterrence. She adopted a global starting point of 22 months’ imprisonment to reflect the relatively serious nature of the offending. She then applied an uplift of three months for previous convictions and a further three months for offending whilst on bail. The Judge allowed a full discount of 25 per cent for Mr Afeaki’s early guilty pleas. There was no express discount for personal factors arising from the s 27 report before the Court although the Judge acknowledged the factors set out in the cultural report and counsel’s submissions drawn from that report. The Judge said:9
[7] So despite the factors that have been raised in those reports I am of the clear and firm view that the purposes and principles of [sentencing], which are the over-riding ones here are [sic] denunciation and deterrence of drink- driving which puts other innocent members of the public at risk particularly when there is a level as high as we have.
8 Sentencing notes, above n 1, at [4].
9 At [7] and [8].
[8] I, therefore, consider that the sentence must be a period of imprisonment and in calculating that sentence of imprisonment I note, as I have stated a couple of times or more, the serious levels, the fact that it was on bail, the fact that you were stopped for your manner of driving, the fact of your previous convictions are all matters which need to be taken into account.
[25] The result was an end sentence of 21 months’ imprisonment. Mr Afeaki was convicted and discharged on the charge of carelessly using a motor vehicle. There were also special post-release conditions including not to possess or consume any alcohol or non-prescribed drugs.
[26] There was no reference to the possibility of commuting the sentence to one of home detention or grant of leave to apply for home detention. Rejection of this potential is implicit in the Judge’s statement that the sentence “must be a period of imprisonment”.10
Completing the procedural background
[27] On 30 June 2021, after filing of the notice of appeal, this Court directed a specialist health assessor’s report under s 38(1)(c) and (d) of the CPMIP Act “at the request of counsel”. Subsequently, the parties jointly advised the Court that preparation of such a report had fallen between the remit of two different forensic services; it had been ascertained that there would be little benefit in a s 38 report which would likely adopt the findings in the Jensen Report and further that IQ testing should not be repeated within a short period of time if it is to give an accurate result. The direction for a s 38 report was recalled.
[28] At a call over on 13 August 2021, the possibility of an order for inquiries under s 35(1) and (4) of the CPMIP Act was raised. This was to cover off the necessary pre- condition so an order under s 34 can be made. However, counsel also alerted the Court to a fundamental practical problem under s 35(1) of the CPMIP Act in that such a report cannot be requested in relation to a sentenced defendant. I return to this point later in this judgment.
10 At [8].
Mr Afeaki’s personal circumstances
[29]I turn then to Mr Afeaki’s personal circumstances which underpin this appeal.
Relevant criminal and traffic history
[30] Mr Afeaki has a long list of driving convictions including, relevantly, seven prior convictions for driving with excess breath alcohol and one for refusing to provide a blood specimen. He also has 13 previous convictions for driving while disqualified or suspended. Those relevant excess breath alcohol convictions stretch back to 2001.
Cultural report
[31] A comprehensive cultural report by Dr Alvina Edwards dated 7 March 2021 was placed before the sentencing Judge. Mr Afeaki is 46 years of age and of Tongan descent. Although there is a close and supportive family relationship, the cultural report makes for grim reading insofar as life trauma suffered by Mr Afeaki is concerned. The factors identified as potentially relevant to the index offending are in summary:
(a)an inability to fully connect culturally and spiritually due to language and communication difficulties;
(b)developmental delay disorder which has left him illiterate and consequently alienated;
(c)unmanaged trauma after the sudden death of his mother when he was 17 at which time Mr Afeaki started to drink as a coping mechanism and, within a year, began offending;
(d)alcohol dependency which has never been dealt with;
(e)unresolved trauma after he witnessed a murder and was himself violently stabbed;11 and
11 The background to these events is set out in media reports of the prosecution.
(f)possible brain trauma evidenced by a scar to his left temple.
[32] Dr Edwards suggests that “chronic alcoholism” and possibly post-traumatic stress disorder may be attributable to the series of traumas throughout Mr Afeaki’s life.
[33] With respect to the potential nexus between Mr Afeaki’s offending and his background, Dr Edwards concluded:
Michael’s offending may be related to his untreated chronic alcoholism. This is correlated with his developmental delay disorder, illiteracy, the sudden loss of his mother, witnessing the murder, and the attempted murder on his own life; his brain/head trauma, which are equivalent experiences in their potential for generating massive intrapsychic conflict. There is an urgent need for intensive treatment and rehabilitation, or the future looks bleak for Michael. With the number of drunk driving offences, it is surprising that no one has ever become a victim of his actions. Michael does not comprehend the consequences of his actions, which could be related to his developmental delay disorder? Whatever is happening, more effect [sic] needs to be applied to find the right sentencing approach.
[34] Dr Edwards forcefully advocated against a sentence of imprisonment, asserting that another period in prison would “fail him”. Her recommendation was that he be immersed in a comprehensive rehabilitation programme to address his alcoholism and the underlying trauma which motivates his offending.
Jensen report
[35] Ms Jensen is a registered clinical psychologist and neuropsychologist with extensive experience in adult forensic services and intellectual disability among other mental health areas. She has been a specialist assessor appointed by the Ministry of Health under the IDCCR Act since 2012.
[36] Following an interview and cognitive assessment of Mr Afeaki, Ms Jensen described Mr Afeaki as “present[ing] as having limited insight and judgement consistent with his suspected low cognitive functioning”. Mr Afeaki reported that he has never held a driver’s licence but has owned cars or borrowed them from his family. He demonstrated “some understanding of the illegality of driving without a licence” but also appeared to have limited insight into the consequences for himself.
[37] Ms Jensen had access to medical records which refer to a number of serious accidents or incidents involving injury. These include burns to his face, arms and both legs in 2014 involving a two week stay in the National Burns Centre and admission to hospital for a traumatic head injury following an assault in 2018. Hospital records indicate that he has also presented several times in a state of intoxication, most recently in October 2017.
[38] Ms Jensen’s testing indicated that Mr Afeaki’s full scale IQ fell in the “extremely low” range; there is a 95 per cent likelihood that his intellectual functioning falls within the range of 54–62 and is below “99.8% of same aged peers” based on assessment with the Wechsler Adult Intelligence Scales-Fourth Edition.12 These results were, in Ms Jensen’s opinion, “consistent with a diagnosis of intellectual disability as defined by section 7 of the [Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003]”. She considered that Mr Afeaki has a “brain-based disability” and accordingly considerable rehabilitation and support needs in the long term. She commented:
86. Based on my understanding of what programmes can be offered to offenders like Mr Afeaki within the mainstream corrections system, I consider it unlikely that his rehabilitative needs can be met in prison. He would be unlikely to fully engage or benefit from the more standard approaches such as drug and alcohol programmes due to his intellectual disability. Mr Afeaki is also a vulnerable individual with a history of victimisation which could further reduce his rehabilitative options (e.g., if he remains segregated).
87. With regards to appropriate disability-specific rehabilitation, Mr Afeaki requires an intervention for his alcohol use and greater structure in his day. … Ideally, Mr Afeaki would be provided with interventions that are more at his level of cognitive ability or be transferred to another facility that can provide more rehabilitative options. Mr Afeaki could benefit from a Compulsory Care Order under the IDCCR Act 2003.
Approach on appeal
[39] To succeed on an appeal against sentence an appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different
12 This is described as a comprehensive psychological test of intelligence that measures overall cognitive functioning in adults. It is based on four indices: verbal comprehension index; perceptual reasoning index; working memory index; and processing speed index.
sentence should be imposed.13 In all other cases, the court must dismiss the appeal.14 In this respect, the court will not simply substitute its own view for that of the original sentencing judge.15 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.16 It will only intervene if the sentence is manifestly excessive or wrong in principle.17 The appeal court’s focus in this respect will be on the final sentence imposed rather than the process by which that sentence was reached.18
Submissions
Mr Afeaki
[40] Ms Singh submits that, because sentencing proceeded without the Jensen Report, information pertaining to Mr Afeaki’s particular vulnerabilities and cognitive impairments were not before the Court. Mr Afeaki’s brain-based disability and considerable long-term rehabilitation and support needs mean that an alternative therapeutic pathway is needed. Relying on the Jensen Report Ms Singh submits that a compulsory care order under the CPMIP Act is required with a care and rehabilitation plan for Mr Afeaki.
[41] Alternatively, Ms Singh contends that the end sentence is manifestly excessive. In particular, Ms Singh submits that a discrete reduction in sentence ought to have been allowed for the trauma described in the two reports before the Court. She submits that a global discount in the vicinity of 20 to 30 per cent is warranted.
[42] Related to this ground is Ms Singh’s assertion that Mr Afeaki’s personal circumstances, and in particular his intellectual disability,19 mean that a sentence of imprisonment is disproportionately severe.
13 Criminal Procedure Act 2011, s 250(2).
14 Section 250(3).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
16 At [36].
17 At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].
18 Tutakangahau, above n 15, at [36].
19 She refers in this respect to the decision in R v P (1993) 10 CRNZ 250 (HC) where a sentence of imprisonment was considered disproportionate and unsuitable for an intellectually handicapped offender convicted of raping a mentally disabled woman.
[43] Finally, Ms Singh submits that the sentence imposed was not the least restrictive outcome appropriate in the circumstances as required by s 8(g) of the Sentencing Act. Leave to commute the sentence to one of home detention or a combination of lesser sentences would be more consistent with Parliament’s intention that imprisonment be a measure of last resort.20
The respondent
[44] Mr Becroft submits that before any order can be made under s 34 of the CPMIP Act, s 35 requires the court to direct inquiries to determine the most suitable way of dealing with an offender. There is no jurisdiction until those inquiries have been made and they have not been completed in the present case.21 Moreover, those inquiries cannot be undertaken while Mr Afeaki is a sentenced prisoner.
[45] With respect to Judge Bouchier’s refusal to adjourn the sentencing to allow Mr Afeaki to be formally assessed by a neuropsychologist, Mr Becroft submits that this cannot be a discrete ground of appeal, relying on Brampton v New Zealand Police.22
[46] As to the separate question of whether an order under s 34(1)(b)(ii) of the CPMIP Act should have been made, Mr Becroft submits that such an order was inappropriate in the present case and the Judge was correct to sentence Mr Afeaki to a term of imprisonment. He makes three points.
[47] First, that s 34(2) provides that the court must be satisfied on the evidence that the offender’s mental impairment “requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for the safety of the public or for the safety of a person or class of person”.
[48] Second, that an order under s 34(1)(b)(ii) is a “benevolent” option reserved for less serious offending where deterrence and protection of the public are not
20 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
21 Port v R [2012] NZCA 429 at [34].
22 Brampton v New Zealand Police [2015] NZHC 2618 at [41].
imperative.23 A finding of intellectual disability does not compel the court to make an order under s 34.24 The language of s 34(1) is permissive rather than mandatory.
[49] Third, drawing a parallel with Laing v Police, a rehabilitative sentence is not appropriate where protection of the public is imperative.25
[50] Mr Becroft refers to the alternative means under s 29(1) of the IDCCR Act for Mr Afeaki to receive the care identified by the Jensen Report. This allows a prison manager to refer a prisoner for assessment under pt 4 of the IDCCR Act if there are reasonable grounds for believing that the prisoner has an intellectual disability. The process may culminate with a Family Court judge making a compulsory care order. Mr Becroft acknowledges that objectively speaking, the Jensen Report means there are reasonable grounds for such belief.
[51] As to the remaining subsidiary grounds of appeal concerning the length of Mr Afeaki’s sentence, Mr Becroft contends that although the Judge made no express allowance on account of personal factors outlined in the cultural report and Ms Jensen’s psychological report, the end sentence of 21 months’ imprisonment was not manifestly excessive.
Discussion
[52] The sentencing exercise in this case involves a difficult balancing act because of Mr Afeaki’s intellectual disability. He is a habitual drunk driver. He has been imprisoned for driving with excess breath or blood alcohol five times in the last 20 years. The periods between offending (once periods in custody are accounted for) appear to be lessening. A gap of around 12 months between offences in respect of the index offending is seriously concerning. He has been the subject of various court sanctions including home detention, periodic detention, supervision, to come up for sentence if called upon, community work, fines, reparation and disqualification from driving. He also has a long history of non-compliance with convictions for breaches of periodic detention (x 4), breach of court release conditions, failure to answer District
23 R v Satherley [2007] NZCA 381 at [29].
24 R v Goodlet [2011] NZCA 357, [2011] 3 NZLR 783 at [35].
25 See Laing v Police HC Wellington AP19/00, 28 March 2000.
Court bail (x 5), failure to answer Police bail (x 2) and failure to comply with prohibition by enforcement officer (x 3). He has 23 convictions for offences committed while he was on bail.
[53] The habitual offending and the level of blood alcohol at issue elevates the seriousness. Mr Afeaki is, and will continue to be, a risk to public safety unless effective intervention occurs. The question faced by the sentencing Judge, and now on appeal in light of the further information available, is how that intervention is to be achieved having regard to the principles set out in the Sentencing Act.
Alternative disposition – CPMIP Act and IDCCR Act
[54] The IDCCR Act creates a compulsory care and rehabilitation option to better recognise and safeguard the special rights of persons with intellectual disabilities who are charged with, or convicted of, an offence.26 As the Supreme Court recently observed, the IDCCR Act contains its own sophisticated system of checks and balances designed to protect care recipients and the community from harm while respecting the inherent dignity of such recipients.27
[55] The pathway into the IDCCR Act for offenders is through the CPMIP Act. Section 34 of the CPMIP Act empowers the Court to authorise a therapeutic response to a hospital or facility, either as a complement to sentencing an offender to a term of imprisonment or as an alternative to passing sentence.
[56] As there was no information before the sentencing Judge about Mr Afeaki’s eligibility (for the reasons already canvassed), disposition under s 34 of the CPMIP Act was not considered.
[57]Section 34 provides:
34 Power of court to commit offender to hospital or facility on conviction
26 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 3.
27 M v Attorney-General (in respect of the Ministry of Health) [2021] NZSC 118 at [8].
(1)If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—
(a)by sentencing the offender to a term of imprisonment and also ordering that the offender—
(i)be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(ii)be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
(b)instead of passing sentence, by ordering that the offender—
(i)be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(ii)be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(2)For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender’s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for the safety of the public or for the safety of a person or class of person.
(3)Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
(4)Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
(a)has an intellectual disability; and
(b)has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and
(c)is to receive care under a care programme completed under section 26 of that Act.
(5)No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.
[58] Mr Afeaki seeks an order under s 34(1)(b)(ii) which would mean that he would no longer be subject to the criminal justice system. Care recipients are subject to
provisions in the IDCCR Act providing for regular reviews of the person’s care recipient status including as to whether the person should be released from the restraints under the Act.28
[59] The following threshold requirements must be met before any order can be made under s 34(1)(b)(ii). The court must be satisfied on the evidence of one or more health assessors:
(a)The defendant’s mental impairment requires compulsory treatment or care either in his interest, or for the safety of the public or for the safety of a person or class of person.29
(b)The defendant has an intellectual disability.30
(c)The defendant has been assessed under pt 3 of the IDCCR Act and is to receive care under a care programme completed under s 26 of that Act.31
[60] In addition, s 35 requires that when a court proposes to make an order under s 34, the court must order that inquiries be made to determine the most suitable method of dealing with the person. The s 35 inquiries can only be ordered pre-sentence as s 35(2) provides:
35 Inquiries about persons for whom orders under section 34 proposed
…
(2)For the purposes of the inquiries under subsection (1), the court must either—
(a)make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or
(b)remand the person to a hospital or a secure facility.
28 Intellectual Disability (Compulsory Care and Rehabilitation) Act, ss 77–79 and 82.
29 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34(2).
30 Section 34(4)(a).
31 Section 34(4)(b)–(c).
[61] Herein lies a significant problem. A prison is expressly excluded from the definition of “secure facility” and Mr Afeaki is currently in prison serving his current sentence.32 To overcome this, Ms Singh urges me to adopt the following course. First, to quash Mr Afeaki’s sentence. Secondly, to remit sentencing to the District Court under s 251(2)(c) of the Criminal Procedure Act 2011 with a direction that prior to imposing sentence, the District Court exercise the power in s 34 and 25 of the CPMIP Act and to remand Mr Afeaki in custody pending resentencing.
[62] Ms Singh relies on Marsh v New Zealand Police where this course was adopted by Davison J.33 The practical difference in Marsh however was that the term of imprisonment faced by the defendant was sufficiently long to enable resentencing to take place while the defendant was on remand. This is not necessarily the case with Mr Afeaki.
[63] Of the threshold requirements before orders can be made under s 34, only the second—evidence of an intellectual disability—is clearly met. The Jensen Report establishes that Mr Afeaki meets the definition of having an intellectual disability under s 7 of the IDCCR Act. This is not disputed.
[64] It is common ground that there has been no required assessment under pt 3 of the IDCCR Act as pt 3 is prescriptive in terms of what must be included in such assessment.
[65] It is worth noting that the Court of Appeal has said that orders under s 34(1)(b) are “a more benevolent option providing therapeutic disposal for less serious offenders, for whom punishment is a lesser priority”.34 This reasoning was subsequently endorsed by the Court of Appeal in R v Goodlet:35
[37] This Court in Satherley has held that orders under s 34(1)(b) should be reserved for offending at the less serious end of the scale where deterrence and protection of the public are not imperative. It follows that cases that can be characterised as more serious (and likely to call for deterrence and community protection) would normally warrant being dealt with under s 34(1)(a).
32 Intellectual Disability (Compulsory Care and Rehabilitation) Act, s 9(4).
33 Marsh v New Zealand Police [2020] NZHC 2368.
34 Satherley, above n 23, at [29].
35 See Goodlet, above n 24.
[66] Although acknowledging that the assessment is in every case fact dependent, the Court in Goodlet identified the factors that “should be taken into account when deciding whether an offence is serious enough to warrant an order under s 34(1)(a)”:36
(a)First, the nature of the offence, including whether it forms part of the “three strikes” regime in ss 86A–86I of the Sentencing Act. The Court commented that offences “involving the intentional infliction of grievous bodily harm, for example, will almost always be serious”.37
(b)Second, the circumstances of the offending.38
(c)Third, the circumstances of the offender which impact on the seriousness of the offending such as the offender’s previous record and history of similar offending, and “any effect the offender’s mental impairment has on the seriousness of the offending”.39
(d)Finally, the Court should consider whether the case calls for a sentence requiring deterrence or denunciation or community protection, as opposed to rehabilitation alone being the appropriate objective. The Court noted that a “risk of reoffending that gives rise to a need to protect the public” may well warrant an order under s 34(1)(a).40
[67]The Court of Appeal accordingly concluded:
[45] Measured against the factors set out above, the less serious the offending the more likely it is that the case could fall within s 34(1)(b), which involves the imposition of no sentence on the offender. What is required is an evaluation of relevant factors as part of the exercise of the Court’s broad discretion under s 34. In most cases of serious offending, use of the powers under s 34(1)(a) will be appropriate. We should add, however, that there might be a case involving exceptional circumstances where, despite serious offending, the power under s 34(1)(b) might be used.
36 At [40].
37 At [41].
38 At [42].
39 At [43].
40 At [44].
[68] The crux of the appeal on the issue of disposition is whether Mr Afeaki’s mental impairment requires compulsory treatment. I have no doubt that such an order would be in Mr Afeaki’s best interests. Similarly, I consider that the community protection interest would benefit from ensuring that Mr Afeaki enters into rehabilitative programmes which address his apparent alcohol dependency at a level appropriate to his disability. “Require” can mean “to need or want” depending on context. I consider that this context demands that it mean “to need” for the stated purposes, in contradistinction to such care being merely desirable, for instance.
[69] I have concluded that the mere desirability of such an order in this case does not reach the threshold level of a requirement. I consider this is clear from the conclusions in the Jensen Report where the writer states only that “Mr Afeaki could benefit from a Compulsory Care Order under the IDCCR Act 2003.”
[70] I also draw support from the decision of the Court in Appeal in R v Elliot.41 The case concerned a man who had been found guilty of common assault. He was ordered to be detained in a mental hospital as a committed patient under s 39J of the Criminal Justice Act 1954. That section provided that the court could order that a person convicted of an offence be detained in a hospital “on being satisfied by the production of a certificate by 2 medical practitioners that he is mentally disordered, and that his mental condition requires that he should be detained in a hospital either in his own interest or for the safety of the public”. As with s 34(1)(b), this was an alternative to passing sentence on the offender. Richardson J emphasised the high threshold for an order, given the use of the term “requires” in the section and the emphasis on the safety of the public.
[71] The case of Elliot was dealing with a different (earlier) regime. There are some significant differences between that regime and the framework in issue in the present case. Nevertheless, the emphasis on the high threshold represented by the word “requires” informs my approach in this case.
[72] It follows that I conclude that the sentencing Judge could not have considered a s 34 order even with the Jensen Report so there is no error on that basis.
41 See R v Elliot [1981] 1 NZLR 295 (CA).
[73] I record that there is an alternative pathway to a compulsory care order for a sentenced prisoner which appears to be the more appropriate course in this case. This viable alternative to orders under s 34 of the CPMIP Act is to be found in s 29(1) of the IDCCR Act. The different framework has the advantage that the threshold for initiating such an order is lower. There is also the advantage of statutory timeframes for completion of each step in the process. Section 29(1) reads:
29 Application for assessment of prisoner or former special patient
(1) A manager of a prison may apply to the co-ordinator to have a prisoner assessed under this subpart, if there are reasonable grounds for believing that the prisoner has an intellectual disability.
[74]The effect of s 29(1) is succinctly described by Miller J in R v Chisnall:42
[36] The order is initiated by the prison manager but made by a Family Court Judge on the application of a compulsory care co-ordinator. Accordingly, one of the options … is a determinate sentence during which an application might be made for a compulsory care order as a means of providing you with close supervision and treatment. The effect of these provisions is that your status as a person detained under a compulsory care order may be extended past the date when you cease to be liable to be detained under a sentence of imprisonment, where a compulsory care order is made under [s 45]. Such an order has a maximum term of 3 years although it may be extended under [s 85].
[75] There are objectively reasonable grounds for belief in this case given the Jensen Report. While acknowledging that the discretion lies with the manager of the prison, this is the appropriate step and I encourage the initiation of this process without delay. This would address the treatment and rehabilitation of Mr Afeaki retaining the safeguard of the term of imprisonment and Parole Board oversight.43
[76]For all these reasons, I dismiss this ground of appeal.
The length of sentence
[77]I turn to the alternative grounds of appeal.
42 See Port, above n 21, at [36]; and R v Chisnall HC Whanganui CRI-2005-083-806, 29 March 2006 (emphasis added).
43 See Laing, above n 25, at [11].
[78] There is (correctly with respect) no criticism of the starting point. Nonetheless, the appropriate range as a starting point is relevant to the analysis. Mr Becroft submits that the 30 April 2020 offending warranted a starting point of 12 to 18 months’ imprisonment and the 22 March 2021 offending warranted a starting point of 18 to 20 months’ imprisonment. Having regard to the sentencing bands for excess breath or blood alcohol offending identified by Whata J in Samson v New Zealand Police,44 I agree. At the time of both sets of offending, Mr Afeaki was indefinitely disqualified from driving. The earlier offending occurred only 18 months after his last relevant offence (refusing to provide a blood specimen) and the latter offending only 11 months after that. Mr Afeaki also has a prolonged history of driving related offending, and the 22 March 2021 offending involved a minor collision, failure to stop and a particularly high level of breath alcohol (1,066 mcg/l, over four times the legal limit). Even after adjusting for totality, an overall starting point of at least 30 months’ imprisonment was potentially available in the present case.45 Thus, the starting point actually imposed could be interpreted as at the low end of the available range.
[79] Moreover, the three month uplift to reflect the fact that the 22 March 2021 offending occurred while Mr Afeaki was on bail could have been higher and still within an appropriate range given that Mr Afeaki was also subject to release conditions at the time of the 30 April 2020 offending.
[80] I acknowledge that the Judge did not expressly allow for personal mitigating factors although she referred generally to the factors in the s 27 and pre-sentence reports. Those reports, now further informed by the Jensen Report, suggest that a global discount of 20 per cent is supported. However, a discount of 20 per cent (alongside 25 per cent for guilty pleas) applied to a starting point of 30 months, with uplift for offending on bail of three months, produces, by my calculation an end sentence of around 20 months and 21 months with the uplift for previous offending If a custodial sentence is the least restrictive outcome in the circumstances, it follows that the end sentence, looked at in the round, is not manifestly excessive. Interfering with it would amount to tinkering. I decline to do so.
44 Samson v New Zealand Police [2015] NZHC 748 at [15].
45 He refers to the decisions in Stott v New Zealand Police [2018] NZHC 1591; Pinker v New Zealand Police [2015] NZHC 3020; Koopu v Police [2013] NZHC 1356; Deadman v New Zealand Police [2021] NZHC 1406; and Dick v New Zealand Police [2014] NZHC 434.
Other sentencing options?
[81] Ms Singh submits that community detention coupled with intensive supervision ought to have been considered to give primacy to the principle of rehabilitation and to avoid imposing a disproportionately severe sentence given Mr Afeaki’s personal circumstances. The driver for this submission is a proposition that Mr Afeaki should participate in community rehabilitative programmes.
[82] The sentencing Judge had regard to rehabilitation but said that “a sentence which was rehabilitative would have been the focus if we only had the one charges [sic], but we have the two charges now”.46 The focus then became denunciation and deterrence of drink-driving because of the public safety aspect. For this reason, the Judge concluded that the sentence must be one of imprisonment.
[83] On the face of it, there have been many ‘opportunities’ for rehabilitation. The reality is however different. Rehabilitation efforts have been wholly ineffective despite the generous advocacy and support of his brother and sister in law. The insights in the Jensen Report explain the complex factors at play—the overlay of intellectual disability on a backdrop of trauma and alcohol dependency. It explains, for example, Mr Afeaki’s struggles with organisation to attend appointments, with transport and confusion about how to self-refer or physically attend programmes. An inability to read and write undoubtedly compounds the problems.
[84] In Mr Afeaki’s case, specific as opposed to general deterrence and denunciation need to be viewed through a particular lens. He does not learn from his mistakes because of his disability. The Jensen Report specifically notes that he has an “inability to learn the legal consequences” of his actions and describes this as an entrenched behaviour.
[85] In my assessment, rehabilitation and protection of the community should hold the most weight in sentencing this particular offender but deterrence and denunciation still have a role. For this reason, supervision would be a clearly inadequate response when protection of the public is necessary, particularly when the latest offending was
46 Sentencing notes, above n 1, at [6].
committed while subject to a sentence for similar offending. I see no error in the sentencing Judge’s focus on a custodial sentence rather than intensive supervision. The Jensen Report does not justify revisiting the issue of intensive supervision.
[86] There is no presumption in favour of either home detention or imprisonment merely because a sentence of imprisonment would be less than two years.47 A considered choice between the two sentencing options is required, taking into account all relevant principles and purposes of sentencing.48 There is also no special standard of appellate review to decisions not to commute imprisonment to home detention. In all cases, the margin of appreciation extended to a sentencing Judge by an appellate court is usually significant because of the array of considerations.49
[87] The pre-sentence report dated 28 July 2020 was prepared prior to the second offending. It recommended a sentence of home detention. The proposed address of a family member was assessed as suitable and the occupants consented. By the time of sentencing in May 2021, this was no longer an option because of withdrawal of consent borne of the occupiers’ frustration with Mr Afeaki’s repeat offending.
[88] Ms Singh advised the Court at the hearing that the home address is available again, subject to conditions around provision of external support.50 It is not clear what this would entail. Ms Singh also suggested at the hearing that it may be possible to find a residential accommodation provider (with wrap around support and rehabilitation services) at which an electronically monitored sentence could be served.
[89] On the basis of the Jensen Report’s identification of special needs, this option should be available to Mr Afeaki. I therefore grant leave for him to apply to commute his sentence to an electronically monitored sentence at a suitable rehabilitation facility which can provide the appropriate level of care and rehabilitation. Whether such a sentence is in fact substituted is a matter for the District Court.
47 A sentence of home detention cannot be combined with a sentence of supervision.
48 Fairbrother v R [2013] NZCA 340 at [30].
49 Palmer v R [2016] NZCA 541 at [18].
50 There is no updated suitability report.
Result
[90] I grant leave to Mr Afeaki to apply to commute the sentence to an electronically monitored sentence as set out in paragraph [89].
[91] I direct that the Jensen Report be provided to the prison manager for the purposes of consideration of the assessment pathway under s 29 of the IDCCR Act and otherwise to meet Mr Afeaki’s needs.
[92]Save for the leave granted, I otherwise dismiss the appeal against sentence.
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Walker J
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