Hotene (aka Manukonga) v Police

[2012] NZHC 1977

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-027 [2012] NZHC 1977

BETWEEN  TINA MAREE HOTENE (AKA MANUKONGA)

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 August 2012

Counsel:         A Dallison for appellant

S A Law for respondent

Judgment:      7 August 2012

RESERVED JUDGMENT OF DOBSON J

[1]      The   appellant   (Ms Hotene)   was   sentenced   in   the   District   Court   at New Plymouth on 8 June 2012 in respect of one charge of driving with excess breath alcohol, being a third or subsequent charge.   She was sentenced to 12 months’ imprisonment with special release conditions to apply for six months from the expiry of her sentence.  Ms Hotene now appeals against that sentence as being manifestly excessive.  She also appeals the Judge’s refusal to transform her sentence into one of home detention.

[2]      On the night of the offending, Ms Hotene had driven a car, on her account a very short distance, before incurring the ire of another person when she ran over a container of wine on or adjacent to the roadway.  A man with an apparent interest in the wine attacked the vehicle Ms Hotene was driving and damaged it, including breaking the windscreen.  Ms Hotene telephoned the Police who attended and, in the course  of  their  inquiries,  breath  tested  Ms Hotene.    She  returned  a  reading  of

841 micrograms of alcohol per litre of breath, was entirely co-operative with the

Police and agreed that she had been driving the vehicle.

HOTENE v NEW ZEALAND POLICE HC NWP CRI 2012-443-027 [7 August 2012]

[3]      The District Court Judge cited Ms Hotene’s seven previous convictions for driving with  excess  breath  alcohol  which  were  entered  between  May 1992  and March 2004.  On the last occasion, she was imprisoned for nine months.  In addition, the Judge noted numerous breaches of periodic detention or community work sentences, together with convictions for driving whilst disqualified, which the Judge treated as showing an inability on her part to restrain herself from conduct that was prohibited  to  her.    The  Judge  also  noted  Ms Hotene’s  long-term  alcohol  abuse, treating her as not realistically able to abide by an electronically monitored sentence that would require self-restraint in complying with a ban on the intake of alcohol. Ms Hotene was five months’ pregnant at the time and the Judge expressed concerns for her unborn child, given her levels of alcohol consumption.

[4]      The Judge considered prospects of rehabilitation to have been exhausted, given  Ms Hotene’s  unsuccessful  participation  in  a  detox  programme,  residential rehabilitation and individual counselling.    The Judge effectively treated imprisonment as necessary to enforce abstinence so as to ensure that the unborn child was not subject to the detrimental effects of her on-going alcohol consumption.

[5]      The  Judge  had  regard  to  a  sentence  of  nine  months’ imprisonment  for Ms Hotene’s last conviction for excess breath alcohol, and in light of that fixed the starting point for this conviction at 10 months’ imprisonment, uplifting it by six months to reflect prior convictions.  That was then reduced for an early guilty plea to the end sentence of 12 months’ imprisonment.  The Judge rejected home detention as a viable alternative because of the seriousness of the offending.   In addition, the Judge assumed that Ms Hotene would continue drinking in the home, placing her unborn child at risk, he considered that previous sentences had not deterred her, and that Ms Hotene was without tangible support.

[6]      Ms Dallison submits that the sentence was inappropriately influenced by the Judge’s concern to protect the unborn child, and that the cumulative impact of a number of the components of the Judge’s reasoning combined to produce errors that rendered the outcome, including rejection of the option of home detention, as manifestly excessive.

[7]      Ms Dallison challenged  the relative seriousness  of the offending.   Whilst accepting the high level of alcohol in Ms Hotene’s breath, she argued that the driving conduct itself was not a cause for alarm.  I do not see this point as a valid criticism. At the level of inebriation reflected in this breath reading,  Ms Hotene’s driving would have been sufficiently impaired that she  was a serious risk to  all in the vicinity.  Her misjudgement about the wine case could easily have been, for example, a toddler.  She should not have thought of driving.

[8]      As to the length of time that had elapsed since the last of her seven previous convictions for driving with excess alcohol, a lapse of nearly eight years is a cause for some encouragement, but it cannot lessen the fact that she drove again whilst inebriated, notwithstanding an appalling prior record.

[9]      Ms Dallison also criticised the Judge for inappropriately adopting the view that Ms Hotene was incapable of abiding with a condition of forced abstinence. Ms Dallison  cited  a  period  of  eight  months’  sobriety  in  2006,  and  initiatives Ms Hotene has more recently taken to address her addiction to alcohol.  Of course, she is to be encouraged in all such endeavours.   However, it would be somewhat unrealistic  in  all  the  circumstances  disclosed  to  the  Judge  for  him  to  have disregarded the very real risk that Ms Hotene would not remain alcohol-free for the duration of a sentence of home detention.  His concern might have been expressed more felicitously, but the reality is that, where complete abstinence would be a condition  of  the  sentence  being  contemplated,  there  was  a  high  risk  that  the condition would not be complied with.   Once that concern is recognised, it was relevant for the Judge to weigh the appropriateness of such a sentence in light of the risk of breach.  Testing Ms Hotene’s resolve during a sentence of home detention is not the only opportunity she will have to pursue any commitment she makes to address her addiction to alcohol.

[10]     Ms Dallison also argued that the Judge’s perception that previous sentences had not acted as a deterrent for Ms Hotene was unwarranted.  Ms Dallison submitted that the absence of convictions for driving with excess breath alcohol for a period of eight years did demonstrate a measure of deterrence, and that the apparent severity of the sentence on that occasion was contributed to by it being a much higher alcohol

reading  and  Ms Hotene  being  sentenced  at  the  same  time  for  two  additional convictions for driving whilst disqualified.   It would follow that the need for a deterrent aspect was not as strong as the Judge perceived it to be.

[11]     This part of the Judge’s analysis might have been expressed with a different emphasis.  However, in light of the totality of Ms Hotene’s previous record, and her situation as presented in the pre-sentence report, the Judge’s view on the lack of deterrent impact cannot contribute meaningfully to a criticism that the outcome was manifestly excessive.   The pre-sentence report for the District Court reported that Ms Hotene had a long history of alcohol abuse that has contributed to her offending over a number of years. The report continued:

Having completed a detox programme, residential rehabilitation and individual counselling, little is left for her in terms of rehabilitative options.

...  [Ms Hotene]  admitted  that  her  alcohol  abuse  has  contributed  to  her non-compliance with previous sentences.  She is assessed as at moderate risk of re-offending and harm to others. ... [She] is in receipt of a sickness benefit

for  her  alcohol  addiction.  ...  A  sentence  of  imprisonment  would  give

[Ms Hotene] time to cease drinking alcohol and look into the possibility of a release to a residential rehabilitation programme.

[12]     Ms Dallison also criticised the Judge for treating Ms Hotene as having no tangible support of any sort, as an additional reason for refusing home detention. She is concerned that that overlooked the support available from the father of her six year old son and her unborn child.  She therefore treats that, together with oversight of  her  domestic  situation  by Child, Youth  and  Family Services,  as  providing  a measure of support that would make home detention viable.

[13]     I am  not  satisfied  that  this  factor,  as  treated by the Judge,  even  if  it  is materially more pessimistic than might have been justified about the level of support, makes a material difference.

[14]     The Crown supported the level of the sentence imposed by referring to the survey of Wild J in Clotworthy v Police,[1] which showed that sentences imposed for

between third and eighth convictions for driving with excess breath alcohol led to a

range between two months and 12 months’ imprisonment.  Where there were eight convictions, the sentences ranged between nine and 12 months’ imprisonment.

[1] Clotworthy v Police (2003) 20 CRNZ 439 at [17].

[15]     Here, the Judge did not refer to the Clotworthy survey and rather started with

10  months,  uplifting  it  by  six  months  to  accommodate  Ms Hotene’s  “appalling history”, and then allowed four months’ credit for early guilty plea to produce the end result of 12 months.

[16]     Each case must turn on its own facts, and there cannot be anything in the nature of an arithmetical comparison of levels of alcohol readings combined with the number of prior convictions for excess breath or blood alcohol.   Implicit in the sentencing Judge’s approach was an expectation that the appropriate sentencing response would necessarily be more severe on each successive conviction for excess breath alcohol.  That approach is not necessarily warranted.  The relative severity of the overall circumstances of each conviction needs to be taken into account.  If, for instance, two or three previous convictions had all involved breath alcohol levels exceeding 800 or 900 micrograms, and the Court was confronted with further offending where the level was 420, then that circumstance would tend to militate against what might otherwise be an expectation of increasing severity in the appropriate sentence.

[17]     Here, the last sentencing in March 2004, for offending in November 2003, reflected  a  breath  alcohol  level  of  518  micrograms,  but  was  in  the  context  of Ms Hotene also being sentenced for two counts of driving whilst disqualified on the third  or  subsequent  occasion.    The  sentencing  also  followed  very quickly  after another conviction for excess breath alcohol in relation to driving in July 2003.  The concurrent sentence of nine months’ imprisonment would have reflected the seriousness of the totality of that offending and, in relative terms, the present offending must be seen as relatively substantially less serious than that.   The differences in the circumstances of the different offending are certainly such as to blunt any expectation that a starting point higher than on that last occasion ought to be fixed on the present one.

[18]     An additional point Ms Dallison raises about length of sentence that troubles me is the lack of consideration by the Judge of the relative severity of a sentence of imprisonment on a woman who is pregnant.  The Judge focused more on protecting the unborn  child  than  on  any  consideration  of the relative hardship  created  for Ms Hotene by virtue of her pregnancy.

[19] Ms Law cited authority that a convicted woman’s pregnancy cannot be decisive as between sentences of imprisonment and home detention,[2] and that pregnancy will not prevent a prison sentence being imposed, but is a factor to consider together with the predicament of the unborn child.[3]    I was not referred to any  decisions  in  which  pregnancy  has  been  assessed  in  terms  of  s 8(h)  of  the Sentencing Act 2002, as particular circumstances of the offender that  render an otherwise appropriate sentence disproportionately severe for her.  I did touch on the issues arising on sentencing of a pregnant woman in R v Aoapaau.[4]     I was there addressing more particularly the predicament of a newborn child in prison.   The prospect of ameliorating that particular concern by other means does not prevent recognition in appropriate circumstances of pregnancy as a potential consideration under s 8(h) of the Sentencing Act.

[2] Zurich v Police HC Wanganui CRI 2010-483-18, 30 March 2010.

[3] R v Vaux-Phillips [2012] NZHC 1119 at [40].

[4] R v Aoapaau [2012] NZHC 700 at [24]-[26].

[20]     I have considered a relatively lengthy and pleading letter from Ms Hotene written  from Arohata  Prison.    In  it,  she  complains  that  she  is  unable  to  sleep adequately,  and  that  the  conditions  are  not  conducive  to  a  healthy  pregnancy. Ms Dallison submits that she has not yet been seen by a nurse or midwife, or had any other medical attention.  Ms Law’s rejoinder on this point is that appropriate medical attention, and if necessary relocation within the prison, ought to be available to Ms Hotene.

[21]     On all information available, I am satisfied that prison conditions are making the serving of her sentence disproportionately severe for Ms Hotene.  I accept that she is highly stressed over the prospect of having a child in prison, and being away from  the  support  she  considers  would  be  available  to  her  if  she  were  in  the

community.  Making every allowance for an extent of overstatement in her concerns,

the impact of the sentence on her is a valid mitigating consideration that operates in the opposite direction from the concern of the sentencing Judge to have her confined in prison on the basis that it would be preferable for her unborn child.

[22]     I am satisfied that the end point of 12 months’ imprisonment, having regard to all the relevant circumstances, was manifestly excessive.   I am satisfied that a sentence of eight months’ imprisonment is the appropriate outcome.  There can be no accurate prediction of when Ms Hotene’s child will be born.  Ms Dallison suggested the  present  projection  was  about  13  October  2012.    I  have  not  calculated  the reduction in sentence precisely to have her released at the time of the birth of her child, but accept that would be an appropriate outcome if the dates do coincide.

[23]     On the second aspect of the appeal, Ms Dallison argued that the Judge was wrong to reject home detention as an appropriate sentence.  As discussed with her during the course of argument on the appeal, she faces a different onus in that the Court has to be persuaded that the sentencing Judge erred in exercising the relevant discretion:  did  the  Judge  here  apply  an  incorrect  principle,  give  insufficient  or

excessive  weight  to  a  particular  factor  or  was  he  plainly  wrong?[5]      The  Judge

considered a range of factors that he treated as relevant to the discretion as between a short term of imprisonment and home detention.  None of them can be relegated as clearly irrelevant and the weight he gave to each of them was a matter appropriately within his discretion.   In these circumstances, I am not prepared to overturn that aspect of the sentence.

[5] James v R [2010] NZCA 206 at [17].

[24]     Accordingly, the appeal is allowed to the extent of substituting a reduced sentence of eight months’ imprisonment.  The Judge’s special release conditions and

period of disqualification remain unchanged.

Solicitors/Counsel:

A Dallison, New Plymouth for appellant

Crown Solicitor, New Plymouth for respondent

Dobson J