Eraio v Police HC Auckland CRI-2007-404-052

[2007] NZHC 1789

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-052

RAURU ERAIO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 June 2007

Appearances: R A Turner for Appellant

G H Anderson for Respondent

Judgment:      5 June 2007 at 2:15 pm

ORAL JUDGMENT OF COURTNEY J ON APPEAL AGAINST SENTENCE

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – G Anderson
Copeland Fitzpatrick, P O Box 22014, Otahuhu

Fax: [phone]

ERAIO V NZ POLICE HC AK CRI-2007-404-052  5 June 2007

[1]      The  appellant  was  convicted  on  16  February  2007  on  various  charges, including one of driving with excess breath alcohol and one of driving while disqualified.   He appeals against the sentence of 18 months imposed in respect of each charge to be served concurrently and in respect of the period of disqualification imposed in relation to the charge of driving while disqualified.

[2]      The conviction for driving with excess breath alcohol was Mr Eraio’s fourth such conviction.  The maximum penalty on this charge was a term of imprisonment not exceeding two years or a fine not exceeding $6,000.  The conviction for driving while disqualified was his third such conviction.    That  charge carries the same maximum penalty as does the driving with excess breath alcohol charge.

[3]      Mr Eraio’s counsel, Ms Turner, accepted that her client  has a very poor record of compliance with court  orders and  that  imprisonment  was  appropriate. However, she submitted, primarily in reliance on Clotworthy1  that 18 months was excessive given the overall circumstances and in particular the guilty plea.

[4]      Both counsel were agreed that the factors relevant to sentence in a case such as this are identified by Wild J in Clotworthy v Police.   However, as the Court of Appeal noted in McQuillan2  those factors are not be applied mechanically and are not a substitute for the normal exercise of judgment in the circumstances of the case.

[5]      Of relevance for the Judge in this case was the level of the breath alcohol reading which was 889 and acknowledged to be a high one. Mr Eraio had previous convictions for drink-driving charges in 2001, 2004 and 2005.  He was disqualified indefinitely at the time of these latest offences.  He has some 31 other convictions for a variety of matters which were noted by the sentencing Judge as including dishonesty, driving, ignoring Court orders and property matters.   The Judge was clearly conscious of Mr Eraio’s history and the fact that he seems quite unable or unwilling to comply with Court orders including community-based sentences.  The Judge specifically signalled her intention to send a clear message to Mr Eraio that he

1 (2003) 20 CRNZ 439

2 CA129/04 12 August 2004 McGrath, Goddard and Heath JJ

must stop behaving in the way he had been. Mr Eraio’s counsel today acknowledged that he seems to have great difficulty in appreciating the consequences of his actions.

[6]      Looking at the cases involving similar circumstances3  it seems clear that a term of 12 months is a fairly consistent level of imprisonment where there has been a guilty plea and some poor conduct.  In sentencing one is, of course, attempting to achieve consistency and 12 months would reflect the generally consistent level of sentencing for these types of charges.  However, Mr Eraio’s history is a very bad one and it is clear that the Judge was conscious of this fact.   His extensive criminal history would have justified a slight uplift from the general level of 12 months which appears in other cases.  I do, however, think that 18 months is a little too high and taking everything into account consider that a midway point of 15 months would have adequately addressed the need for consistency with other cases and a reflection of the particularly bad history that the sentencing Judge was dealing with in this case.

[7]      I therefore allow the appeal and substitute a sentence of 15 months in respect of the breath alcohol charge for the current 18 months.  Counsel are agreed that the sentence in respect of the driving while disqualified charge should reflect the breath alcohol charge, both having arisen from the same incident of course and carrying the same maximum penalties.  I therefore allow the appeal in respect of that sentence as well and substitute the 18 months sentence with one of 15 months.

[8]      In respect of the charge of driving while disqualified, in addition to the term of  imprisonment  that  was  imposed,  the  Judge  also  disqualified  Mr  Eraio  from holding  a  drivers  licence  for  two  years.    Ms  Turner  submitted  that  although s 32(4)(b) Land Transport Act 1998 requires, in the event of a third or subsequent offence, disqualification for one year or more, this being Mr Eraio’s third conviction he  would  only  have,  by  virtue  of  this  conviction,  come  under  the  regime  in

s 32(4)(b).  Therefore it seems excessive to impose a greater term than one year at this stage of his offending.  Ms Anderson did not really resist this submission and I accept it.

[9]      I therefore also allow the appeal in respect of the term of disqualification and substitute a term of disqualification of one year.  Similarly the disqualification period of  two  years  imposed  in  respect  of  the  excess  breath  alcohol  charge  is  to  be substituted with a one-year disqualification period.  In doing so I note that Mr Eraio is in any event disqualified for an indefinite period pursuant to s 65 of the Land

Transport Act and the appeal today does not affect that.

P Courtney J

3 Barry v Police HCAK A101/00 21 August 2000 Rodney Hansen J; Police v Herewini DC Wanganui
CRN3083008586 10 June 2003 Ellis DCJ; Te Awhe Morgan   v Police HCWN AP195/99 15 July
1999 Gendall J