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…

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.

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Details

Case: [2014] NZHC 40
Decision Date: 3 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the appellant, Taufia Aleluia, appealed against the sentence imposed on him by Judge Wolff for driving with excess breath alcohol. Mr Aleluia was sentenced to six months' home detention and ordered to perform 100 hours of community work. The appeal was specifically against the length of the sentence of home detention, which Mr Aleluia contended was too high given the circumstances of his offending. The court was required to decide whether the starting point for sentencing was appropriate and whether the Judge made adequate allowance for the fact that Mr Aleluia would need to serve the entire sentence of home detention.

The court found that the starting point of 12 months imprisonment was at the upper end of the range, but not outside the range available to the Judge. The main issue was whether the Judge should have made greater allowance for the fact that Mr Aleluia would need to serve the entire sentence of home detention. The Judge did not articulate any reason for adopting a sentence of home detention that appeared to be higher than would ordinarily be imposed. However, the court acknowledged that there is no sentencing principle requiring a Judge to impose a sentence of home detention that is roughly equivalent to one-half the appropriate sentence of imprisonment. The court held that the Judge must have taken the view that Mr Aleluia was receiving an indulgence in the sentence he received and was justified in imposing a sentence greater than that which would otherwise have been appropriate to reflect the indulgence.

The appeal was dismissed, and the sentence imposed by Judge Wolff was upheld. The court did not detect any error of principle in the way the Judge structured the length of the sentence and did not consider that Mr Aleluia received a sentence that was manifestly excessive having regard to the facts of the present offending and his previous convictions.

Orders