Golovchenko v Police HC Christchurch CRI-2007-409-000129

[2007] NZHC 1885

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000129

VALARY ALEXANDROVICH GOLOVCHENKO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 June 2007

Counsel:         W Kerr for Appellant

C E Butchard for Respondent

Judgment:      21 June 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      The issue in this appeal is restricted to the refusal of leave to apply for home detention.  On 12 March the appellant was stopped on Worcester Street at 3.45 pm. He was breath tested.   His reading was 1473 micrograms of alcohol per litre of breath.   He indicated that he had been drinking vodka.   Additional information recorded in the pre-sentence report indicates that he had been in the company of countrymen during the weekend and extending into the Monday (12 March was a

Monday).  They had been drinking home-made vodka of exceedingly high proof.

V A GOLOVCHENKO V NZ POLICE HC CHCH CRI-2007-409-000129  21 June 2007

[2]      The  appellant  is  aged  41  years.    He  has  three  previous  convictions  for alcohol-related driving.  In 1994 he was convicted with a reading of 700;  in 1997 a reading of 1053, and in 1999 a reading of 906.

[3]      Mr Golovchenko entered a plea of guilty to the charge on 9 May and was remanded for sentence on 23 May.  A pre-sentence report was obtained.  In light of it and the summary of facts, Judge Doherty concluded that the only appropriate sentence was one of imprisonment.  He adopted a starting-point of 12 months and allowed a three month discount for the early plea of guilty.   Hence the effective sentence became nine months imprisonment and 18 months disqualification.

[4]      With reference to leave, the Judge said:

I think that in view of the risk that you present to the rest of the community, and because of the recommendation of the probation service, that you need a period of detoxification, so that any rehabilitation can kick in.  It would be inappropriate to grant you leave to apply for home detention and that is denied.

I note that in the next paragraph of the sentencing remarks the Judge turned his attention to rehabilitation.   He imposed  standard  conditions  of  release,  but  also special conditions, namely that the appellant was to undergo assessment, counselling and treatment for alcohol abuse as directed by the probation officer, and was to undertake any other counselling as may be directed by his probation officer; these special conditions to continue until six months after the sentence expiry date.

[5]      What, then, is the basis of the present appeal?  Mr Kerr has raised a number of points including that prison is not the appropriate place for detoxification; that the appellant is prepared to undertake treatment; that he had not consumed alcohol after his apprehension in March and that imprisonment placed his home at risk through his inability to meet mortgage payments.  There is also a plea that he is unable to make contact with his elderly mother in Russia, which represents a break in a pattern which was previously firmly established.

[6]      As   counsel   properly   accepted,   there   are   two   problems   with   these submissions.   The first is that the claim that the appellant had ceased drinking in March is inconsistent with the contents of the pre-sentence report.   The second

problem is that there is nothing to indicate that the various other personal circumstances were brought to the attention of Judge Doherty.  Hence it is difficult for me to consider them on the basis that the Judge failed to consider relevant considerations, since I am ignorant whether those matters were even raised in the District Court.

[7]      The pre-sentence report is a fully considered one.  The writer concluded that the appellant had under-reported his use of alcohol.  The writer was also of the view that there was little or no motivation evident on Mr Golovchenko’s part to address his alcohol problem.  These were not facile assessments since the writer had gone to the trouble of discussing the appellant’s case with the Community Alcohol and Drug Service (CADS), Care NZ and the appellant’s general practitioner.   All of these people  were of  the  view that  detoxification  was  a  pre-requisite  to  a  residential programme of treatment, which obviously is sorely needed.

[8]      While  I  have  some  sympathy  for  Mr  Golovchenko’s  predicament  as  a Russian man imprisoned in New Zealand, I can find no basis to fault the reasoning of the District Court Judge.   To the contrary, it is evident that he approached the matter with care and reached the considered view that leave was inappropriate and that special conditions of release were required.

[9]      In these circumstances the appeal is dismissed.

Solicitors:

Wayne Kerr Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent