Aleluia v Police

[2014] NZHC 40

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-470-000035 [2014] NZHC 40

BETWEEN  TAUFIA ALELUIA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   3 February 2014

(HEARD AT ROTORUA)

Appearances:           G Barnett for Appellant

J A Heerdegen for Respondent

Judgment:                3 February 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TAUFIA ALELUIA v NEW ZEALAND POLICE [2014] NZHC 40 [3 February 2014]

[1]      At approximately 9 pm on 18 May 2013, Mr Aleluia was driving a motor vehicle along a residential street in Te Atatu.  He was stopped by a police patrol and exhibited signs of recent alcohol intake.  Breath testing procedures revealed that Mr Aleluia’s breath contained 755 micrograms of alcohol per litre of breath. As a result, Mr Aleluia was charged with driving with excess breath alcohol (third or subsequent) offence.  On 7 October 2013, Judge Wolff sentenced Mr Aleluia to six months home

detention, and ordered him to perform of 100 hours of community work.1

[2]      Mr Aleluia appeals against the length of the sentence of home detention.  He contends that the Judge reached it after adopting a starting point that was too high having regard to the circumstances of his offending.

The sentence

[3]      The Judge indicated that he would have adopted a starting point of 12 months imprisonment for Mr Aleluia’s offending.   He would then have given Mr Aleluia credit for his early guilty plea.  This would have reduced the sentence to one of nine months imprisonment.   In determining, however, that a sentence of home imprisonment was appropriate, the Judge said:2

[3]       I have, however, been persuaded by the able submissions of your counsel to stop short of that.  Not so much for your sake but for the sake of your family and your wife and youngest child.   I am satisfied that I can reduce the sentence to a sentence of six months’ home detention, on the conditions set out in the probation officer’s report, being:

...

The appeal

[4]      Counsel  for  Mr  Aleluia  contends  that  a  starting  point  of  12  months imprisonment was manifestly excessive having regard to both the circumstances of Mr Aleluia’s offending and also to his previous convictions.  Counsel points out that, although the reading of 755 micrograms of alcohol per litre of breath was high, it

was not as high as in other cases where a starting point of that level has been

1      New Zealand Police v Aleluia DC Tauranga CRI-2013-090-003154, 7 October 2013.

2      New Zealand Police v Aleluia, above n 1.

adopted.  Counsel also points out that the circumstances in which Mr Aleluia was driving his  vehicle  on  the evening  in  question  did  not  display any aggravating features  such  as  driving in  a  manner  that  might  have  been  dangerous  to  other motorists or the general public.

[5]      Counsel submits that a starting point of no more than approximately nine months imprisonment was warranted.  From that, Mr Aleluia was entitled to a full discount for his very early guilty plea.   Counsel submits that this ought to have reduced the sentence to approximately seven months imprisonment.   Had that sentence been imposed, Mr Aleluia would have been entitled to immediate release after serving one-half of the sentence.  That would not, however, be the case in the event that he was sentenced to home detention.  A sentence of home detention must be served in full.  Counsel points out that sentencing Judges generally take this factor into account by imposing a sentence of home detention that is approximately one- half of the length of the sentence of imprisonment that would otherwise be appropriate.  In Mr Aleluia’s case, however, the Judge did not take that step. Rather, he imposed a sentence that was a full two-thirds of the sentence of imprisonment that would otherwise have been appropriate.   Counsel submits that this has led to a sentence of home detention that was manifestly excessive given its length.

Decision

[6]      I accept that a starting point of around 12 months imprisonment was at the upper end of the range having regard to the nature of Mr Aleluia’s offending.  Both counsel have referred me to Clotworthy v Police,3 in which Wild J surveyed a series of sentencing decisions in this field.   As counsel for the respondent points out, however, the present sentence is not entirely outside the range of sentences imposed in the cases referred to in Clotworthy.   For that reason, I do not accept that the starting point of 12 months imprisonment was outside the range available to the Judge in the present case.

[7]      The  only  real  issue  is  whether  the  Judge  ought  to  have  made  greater allowance for the fact that Mr Aleluia will need to serve the entire sentence of home

3      Clotworthy v Police (2003) 20 CRNZ 439.

detention, whereas he would not have been required to serve the full sentence if he had been sentenced to a term of imprisonment.

[8]      The Judge did not articulate any reason for adopting a sentence of home detention that would appear to be higher than would ordinarily be imposed.   In saying  that,  I  immediately  acknowledge  that  there  is  no  sentencing  principle requiring a sentencing Judge to impose a sentence of home detention that is roughly equivalent to one-half the appropriate sentence of imprisonment.  There can be many reasons why it may be appropriate to impose a sentence of home detention greater in length than one-half of the corresponding sentence of imprisonment.

[9]      In the present case, however, I apprehend from the Judge’s remarks that the decision to impose a sentence of home detention was finely balanced.   This is because Mr Aleluia has four previous convictions for driving with excess breath alcohol.  Two of these occurred when he was less than 18 years of age.  However, he also  has  two  previous  convictions  for  driving  with  excess  breath  alcohol  in accordance with the limits applied to adults.   On 16 April 2005, Mr Aleluia was found driving with a breath alcohol reading of 599 micrograms of alcohol per litre of breath.  On 14 February 2008, he was found driving with 730 micrograms of alcohol per litre of breath.   On that occasion, he received a sentence of three months imprisonment, although that sentence was concurrent with another sentence of six months imprisonment that he received on a charge of assault.

[10]     More   importantly   in   the   present   context,   Mr  Aleluia   has   numerous convictions for failing to comply with Court orders.  These include failure to answer bail, breaching his community work, breaching intensive supervision and breaching supervision.  These indicate that Mr Aleluia would not generally be regarded as a suitable candidate for a sentence of home detention.

[11]     I consider that the Judge must have taken the view that Mr Aleluia was receiving an indulgence in the sentence that he received.  The fact that a sentence of home detention is usually around half the length of a sentence of imprisonment would have been well-known to the Judge, who is extremely experienced and deals with cases such as this virtually on a daily basis.   I consider he was justified to

impose a sentence greater than that which would otherwise have been appropriate to reflect the fact that Mr Aleluia was receiving an indulgence to which he would not normally be entitled.    Indeed,  as  the Judge remarked,  Mr Aleluia  received that indulgence out of consideration for members of his family rather than for himself personally.

[12]     That being the case, I do not detect any error of principle in the way the Judge structured the length of the sentence.  In particular, do not consider that Mr Alelui received a sentence that was manifestly excessive having regard to the facts of the present offending and his previous convictions.

Result

[13]     For that reason, the appeal is dismissed.

Lang J

Solicitors:

Crown Solicitor, Tauranga

Counsel:
G Barnett, Tauranga