Aramoana v Police
[2023] NZHC 1933
•21 July 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-9
[2023] NZHC 1933
BETWEEN ZAHAN ARAMOANA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 July 2023 Appearances:
S B W Yee for the Appellant
A V Bryant for the Respondent
Judgment:
21 July 2023
JUDGMENT OF PALMER J
Counsel/Solicitors
Elvidge & Partners, Napier
S B W Yee, Barrister, Hastings
ARAMOANA v NEW ZEALAND POLICE [2023] NZHC 1933 [21 July 2023]
What happened?
[1] Around 6.40 am on 21 March 2022, Mr Zahan Aramoana, then aged 25, was driving a friend home in Napier, contrary to his learner’s licence. He lost control of the vehicle, crashing into another vehicle coming the other way. He was driving with 792 micrograms of alcohol per litre of breath. The victim in the other car suffered injuries to her right arm and suffered emotionally and financially from the crash. Mr Aramoana was originally charged with drink-driving causing injury, aggravated driving with excess breath alcohol, and driving contrary to an interlock licence. On 2 November 2022, as the result of plea negotiations, the interlock charge was withdrawn and the drink-driving causing injury charge was replaced by a charge of aggravated careless driving causing injury. The charges of aggravated careless driving causing injury and aggravated driving with excess breath alcohol are subject to maximum penalties of three years and two years’ imprisonment respectively.1
[2] While on bail for those charges, at around 10.30 pm on 23 December 2022, the staff at the Sideline Bar in Napier complained to the Police that Mr Aramoana appeared extremely intoxicated and was trying to drive. The staff had taken Mr Aramoana’s keys off him and when the Police arrived, he was trying to hotwire the vehicle. Breath testing indicated Mr Aramoana had 1,235 micrograms of alcohol per litre of breath (almost five times the usual legal limit). Mr Aramoana was charged with attempting aggravated driving with excess breath alcohol and driving contrary to an alcohol interlock. The maximum penalties for those offences are two years and two years’ imprisonment respectively.2
[3] In May 2017, Mr Aramoana had been convicted of driving with excess blood alcohol of 234 milligrams of alcohol per 1,000 millilitres of blood. He was ordered to make reparation of $2,500. In January 2021, Mr Aramoana had been convicted of driving with a breath alcohol level of 711 micrograms of alcohol per litre of breath. He was ordered to pay a $600 fine and $130 in costs, was disqualified from driving for 28 days, and was given an alcohol interlock licence. Mr Aramoana has also been convicted twice of driving whilst suspended.
1 Land Transport Act 1998 ss 39, 56(1) and 56(4).
2 Sections 32(1)(b), 32(4), 56(1) and 56(4).
[4] Aramoana pleaded guilty to the resulting four charges for the March and December 2022 offending. The Department of Corrections’ advice to the Court assessed Mr Aramoana as being at moderate risk of re-offending with the potential to cause serious harm, which may reduce if he is supported to address his alcohol misuse. It recommended home detention as a sentence to allow him to engage in alcohol counselling.
District Court sentence
[5] On 29 March 2023, Judge R J Collins sentenced Mr Aramoana in the District Court at Napier for the March and December 2022 offending.3 The Judge commented adversely on the dropping of the aggravated drink-driving causing injury charge and said that, in assessing the value of the guilty plea he would take into account the fact he was the significant beneficiary of plea negotiations.4 Unusually, he dealt with discounts first. He refused to give a discount for six factors – Mr Aramoana’s:
(a)admission to hospital at 17 for drug-induced psychosis, because it did not contribute causatively to the offending;5
(b)attempt to engage with the MASH Trust prior to sentencing, because Mr Aramoana failed to attend his weekly programme and told them he had no outstanding charges which was not true;6
(c)information about mental health struggles, because it post-dated the offending and did not contribute causatively to the offending;7
(d)previous employment, which did not mitigate the offending;8
(e)brother being a paraplegic as a result of a motorbike accident, which the Judge noted could be considered an aggravating factor;9 and
3 New Zealand Police v Aramoana [2023] NZDC 7826.
4 At [11], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
5 At [20].
6 At [21]–[22].
7 At [23].
8 At [24].
9 At [25]
(f)remorse, completion of restorative justice, and prospects of rehabilitation.10
[6] The Judge set a starting point of 18 months’ imprisonment for the December 2022 aggravated drink-driving offence, given the aggravating factors of the “extraordinarily high reading”, offending while on bail, and “being charged with aggravated driving while disqualified”.11 He uplifted that as follows:
[33] The uplifts are as follows. On a totality basis, that is I have adjusted these uplifts for the fact of totality, for the first drink-driving matter combined with the fact that not only you produced a high reading of 792 micrograms but you were driving contrary to the interlock licence and contrary to the fact that you did not have a licence anyway other than a learner’s.
[34] On its own, these matters may well have warranted a starting point of in excess of 12 months and maybe quite considerably in excess of 12 months but on an uplift basis there will be 11 months for that matter and then uplifted for the aggravated careless driving charge, which brings an uplift then of 17 months and a final adjusted starting point of 35 months.
[7] That appears to be an uplift by 11 months for “the first drink-driving matter” and then by another six months for the aggravated careless driving offence. The Judge discounted the sentence by 20 per cent for the guilty plea. He said the total end sentence was two year and four months’ imprisonment. But he also said the sentence would be imposed this way:
[36]… on the charging document ending 5635, the aggravated drink- driving, on 23 December 2022 you are sentenced to one year and eight months’ imprisonment and you are disqualified from holding or obtaining a drivers’ licence for two years from 29 March 2023.
[37]You are sentenced to concurrent terms of imprisonment on that charge of six months for driving while disqualified in its aggravated form and you are also disqualified for two years on that and the commencement of the disqualification is today, 29 March.
[38]A concurrent term of imprisonment for the driving contrary to the alcohol interlock licence granted to you.
[39]Charging document ending 1457 is two months’ imprisonment but that is concurrent with 1458 and 14[5]9 and its cumulative on the two matters which related to 23 December, then in relation to 1458 and 1459, 10 months’ imprisonment concurrent amongst themselves but
10 At [27]–[29].
11 At [30]–[32].
cumulative on the charges relating to 23 December and on all of those matters you are disqualified for two years.
[40]Total term of imprisonment then is 28 months or two years and four months. Total disqualification is two years. On charging document 1459, the charge of aggravated careless driving causing injury, you are sentenced to make reparation of $6,990 …
The appeal
[8] Mr Aramoana appeals the sentence. The appeal was filed seven days out of time because of counsel being on annual leave and then having Covid-19. The Police are not prejudiced by the delay and do not take issue with it. I grant leave for the appeal to be filed out of time, in the interests of justice.
[9] Mr Aramoana also seeks leave to adduce further evidence — an affidavit by Ms Sinead Farrell, Mr Aramoana’s partner, relating to the hardship she and her children have faced as a result of Mr Aramoana being in prison. Under r 20.16 of the High Court Rules 2016, this evidence is admissible only if there are special reasons. I do not take it into account in determining whether there was an error in the judgment under appeal. But I do take it into account in determining whether another sentence should be imposed.
Submissions
[10] Mr Yee, for Mr Aramoana, submits the Judge made two significant errors: in taking the December 2022 offending, rather than the March 2022 offending, as the lead offence; and in imposing a sentence, and an uplift to the total sentence, for the driving contrary to an interlock charge which had been withdrawn. The Judge also mistakenly referred to a charge of driving while disqualified. A starting point of nine months’ imprisonment for the December 2022 offending would have been appropriate due to it being an attempt and containing fewer serious aggravating factors than in Samson v Police.12 Accounting for totality, a starting point for all the offending of 25 months’ imprisonment would be appropriate. Mr Yee also submits there should have been a discount of at least five per cent for engaging in restorative justice and offering
12 Samson v Police [2015] NZHC 748 at [22].
to make amends through providing mechanical services, and a 25 per cent discount for the guilty plea.
[11] Ms Bryant, for the Police, submits the starting point and uplift were well within the available range, referring to R v McQuillan.13 It was open to the Judge to be sceptical about Mr Aramoana’s remorse and not award a discount for that. A full discount for the guilty plea would contain an element of double counting. Ms Bryant acknowledges the hardship to Mr Aramoana’s partner but submits it is not directly attributable to his imprisonment.
Should the appeal be upheld?
[12] Under s 240(2) of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there has been a material error in the sentence imposed and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.14 The Court will only intervene and substitute its own views on appeal if the sentence is “manifestly excessive”.15
[13] First, I do not consider the Judge’s choice of the lead offence was necessarily a material error. The March 2022 offending was more serious in its potential penalty, involved actual rather than attempted drink-driving, and resulted in injury. But in the December 2022 offending the alcohol reading was higher, Mr Aramoana was not qualified to drive, the offending was egregious in trying to hotwire a car after keys had been confiscated, it was the fourth conviction in six years, and it occurred while on bail. As this Court said in Thomas v R, deciding on the offence that is to be treated as the lead offence is up to judicial reflection.16 It is the end sentence which matters. As I explain below, I would have set a starting point based on the offending in March 2022. However, it is not an error to do otherwise if the end sentence for all the offending is within the available range.
13 R v McQuillan CA129/04, 12 August 2004.
14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
15 Ripia v R [2011] NZCA 101 at [15].
16 Thomas v R [2020] NZHC 2138 at [27].
[14] Second, however, the Judge erred in several respects. He was wrong to sentence Mr Aramoana to two months’ imprisonment for driving contrary to an alcohol interlock licence in March 2022.17 That charge had been withdrawn. The Judge also mentioned that withdrawn charge in uplifting the total sentence.18 The Judge also mistakenly referred to a charge of aggravated driving while disqualified.19 And, although it is not entirely clear, the net effect of the way in which the Judge imposed the specific sentences appears to add up to a cumulative sentence of two years and eight months’ imprisonment, rather than the two years’ and four months which he stated and clearly intended. The question is whether those errors are material and a different sentence should be imposed. I address that below, on the basis of my own application of sentencing principles.
[15] Whata J in Samson provided a broad framework for sentencing for aggravated drink-driving, depending on the number of seriously aggravating factors.20 Mr Samson himself was placed in band two, where there were one or more seriously aggravating factors, attracting a starting point of 12 to 18 months. He had been convicted of a fifth offence of driving with excess breath alcohol and a ninth offence of driving while disqualified. His exacerbating factors were a high alcohol reading, indefinite disqualification, and an unbroken chain of driving offending for nine years. His starting point was 12 months’ imprisonment.
[16] As explained above, and as Mr Yee submits is appropriate, I would set a global starting point for the March 2022 offending. Aggravated careless driving causing injury attracts the highest penalty. The aggravated drink driving involved actual drink- driving rather than an attempt and had the most serious consequences of actual injury to another. These was Mr Aramoana’s third set of drink-driving offences. Because of the aggravating factors, particularly the injury, I would set the global starting point for the two March 2022 offences at 18 months, at the top of band two or bottom of band three in Samson. I would uplift that by 10 months for the attempted aggravating driving with excess breath alcohol and interlock offending in December 2022. That results in a total end sentence of 28 months’ imprisonment, which I would impose as
17 New Zealand Police v Aramoana, above n 3, at [39] (charge 1457).
18 At [33].
19 At [3], [30], [32] and [37].
20 Samson v Police,, above n 12.
cumulative sentences of 18 months and 10 months for the lead offences in March and December 2022 respectively.
[17]In relation to the discounts:
(a)I do not consider the Judge erred in giving a 20 per cent discount for the guilty plea, because a greater discount may involve double- counting, given that it was reached as a result of a charge being dropped and a more serious charge being substituted for a less serious charge.21
(b)The Judge did take into account Mr Aramoana’s offer to make amends but did not believe it was genuine. This was open to the Judge. Mr Aramoana offended again relatively soon after the restorative justice process began and after the March 2022 offending, failed to disclose that at the conference, did not engage in rehabilitative measures, and only pleaded guilty after plea negotiation. Mr Aramoana’s offer to help with mechanical work was generic and there was not much information as to how it would be carried out.22 There was reason for the Judge to be sceptical about his remorse and rehabilitation.
[18] A 20 per cent discount on 28 months’ imprisonment is five and a half months which gives a total of 22 and a half months. I would impose that as cumulative sentences of 14 and a half months and 8 months for the lead offences in March and December 2022 respectively. On a totality basis, I consider that is an appropriate reflection of the seriousness of both sets of offending. By comparison, I consider the Judge’s total starting point of 35 months’ imprisonment and stated end sentence of two years and four months’ imprisonment, was too high in relation to the seriousness of the offending.
[19] It is important that the sentence for the two sets of offending together are consistent with similar cases. For example, in Doughtery v Police, where the offender was sentenced to two years and five months’ imprisonment, the offending was
21 Hessell v R, above n 4, at [62].
22 Price v Police [2017] NZHC 2523 at [24]–[26].
comparable but were the 11th and 12th occasions of such charges.23 In R v McQuillan, the Court of Appeal agreed two 12-month cumulative sentences imposed for two charges of driving while disqualified and two charges of driving with excess blood alcohol, were within the available range.24 In this particular case, an indicator that the end sentence I have reached appropriately reflects the totality of this offending is that it is within the range that requires consideration of home detention.
Home detention
[20] I consider there is a compelling case that Mr Aramoana should be subject to home detention rather than imprisonment. He has never experienced home detention before, let alone imprisonment. The proposed address is suitable technically and in terms of the occupants. The Department of Corrections report recommends home detention. At the sentencing, the Police submitted that a sentence of home detention would be appropriate in the circumstances. Mr Aramoana’s presence in the home, helping with his partner’s two children and their nine-month-old baby will involve him taking responsibility for, and contributing to, his family’s welfare. It will allow him to continue to be a father figure to his partners’ two children and to be there for his newborn baby.25 Home detention also allows him to engage in alcohol counselling and other treatment programmes which he clearly needs.
[21] I consider home detention is the least restrictive sentence that is appropriate in the circumstances. Accordingly, as required by ss 8(g) and 10A of the Sentencing Act 2002, I impose a sentence of home detention. I would have imprisoned him for a total of 22 and a half months. He has served four months of that which I take into account in setting the length of the period on home detention.26 Because Mr Aramoana cannot get parole on home detention and will have to serve the whole period, I set the period of home detention at nine months and one week from the date of this judgment.
23 Doughtery v Police [2015] NZHC 1777.
24 R v McQuillan, above n 13, at [24].
25 Sentencing Act 2002, s 8(i); Honeybun v Police [2022] NZHC 3445; Philip v R [2022] NZSC 149 at [52]–[56]; and United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature November 1989, entered into force 2 September 1990).
26 Parole Act 2002, s 91(5).
Result
[22] I maintain the sentences of disqualification from driving for two years from 29 March 2023 and reparations of $6,990.
[23] I quash the cumulative and concurrent sentences of imprisonment imposed by the District Court and replace them with two cumulative sentences of home detention for the lead offences in March and December 2022 totalling nine months and one week. In respect of each offence, the sentences are:
(a)for the aggravated careless driving causing injury offence in March 2022, six months and one week of home detention, to be served concurrently with four months’ home detention for the aggravated driving with excess breath alcohol charge in March 2022;
(b)for the attempted aggravated drink-driving offence in December 2022, three months’ home detention, to be served concurrently with two months home detention for driving contrary to the alcohol interlock in December 2022.
[24] The sentences of home detention are subject to the conditions that Mr Aramoana is:
(a)not to possess, consume or use any alcohol or drugs not prescribed to him;
(b)to attend an assessment for alcohol and drug counselling, treatment or programmes as directed by a Probation Officer;
(c)to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer; and
(d)to undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.
Palmer J
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