Hunuhunu aka Taiatini v Police

[2013] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-23 [2013] NZHC 624

BETWEEN  BARNEY HUNUHUNU AKA TAIATINI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 March 2013

Counsel:         R Plunket for Appellant

AD Hill for Respondent

Judgment:      27 March 2013

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

Rebecca Plunket (Whakatane) for Appellant

Gordon Pilditch (Rotorua) for Respondent

TAIATINI V POLICE HC ROT CRI-2013-463-23 [27 March 2013]

[1]      The appellant appeals against his sentence of nine months’ home detention for his seventh charge of driving with excess breath alcohol.   The sentence was imposed on him by Judge RP Woolf in the District Court at Opotiki on 12 February

2013.   The District Court Judge was concise in his sentencing.   He adopted as a starting   point   the   maximum   penalty   for   the   offence,   namely   two   years’ imprisonment.  Taking into account the circumstances of the offending and the early plea of guilty, he reduced this to 18 months.  The Judge then commuted the sentence to nine months’ home detention because of factors personal to the appellant – he was in work and supporting his family.  It is the period of home detention to which the appellant   takes   exception.      Other   orders   made   by   the   Judge   relating   to disqualification and to restrictions after the period ends are not quarrelled with.

[2]      Counsel for the appellant submits that the District Court Judge fell into error by setting the starting point at two years’ imprisonment.  She submits that this failed to take account of the events which caused the offending.  In brief, the appellant was at a party on Christmas Eve 2012.  His young son was with him.  He had a van.  He intended to spend the night at the party house in the van with his son.  He did not intend to drive.  But a fight broke out.  His son was scared.  So he changed his plan and drove off towards his home.   He was intercepted by the Police during that journey. As a result, Ms Plunket for the appellant submits that the Judge should have adopted a starting point of six months’ imprisonment. An uplift of four to six months would be appropriate to account for the fact that this was the seventh offence, giving a sentence of 10-12 months’ imprisonment.  After the discount for the plea of guilty, an  end  sentence  of  nine  months’ imprisonment  was  called  for  in  Ms Plunket’s submissions, which would commute to four-and-a-half months’ of home detention.

[3]      The respondent, on the other hand, emphasises that this was the appellant’s

seventh  conviction.    On  this  occasion,  the  excess  breath  alcohol  reading  was

530 micrograms of alcohol per litre of breath. The other six occasions were:

October 1987 – 550 micrograms of alcohol per litre of breath

June 1990 – 500 micrograms of alcohol per litre of breath

October 1990 – 650 micrograms of alcohol per litre of breath   October 1995 – 984 micrograms of alcohol per litre of breath   February 2007 – 645 micrograms of alcohol per litre of breath

November 2009 – 802 micrograms of alcohol per litre of breath

[4]      The respondent referred me to a number of cases in which the maximum starting  point  of  two  years’  imprisonment  was  adopted.     None  of  them  are completely on all fours with this case, which often happens when comparative cases are being looked for.

[5]      In two of the cases, I would say that the offending was worse than this case because of the number of previous convictions.  Those cases are Daniels v Police[1] and Wilson v Police.[2]     In another case, Henry v Police,[3]  the District Court Judge adopted a maximum starting point of two years’ imprisonment.  The High Court, on appeal, was satisfied that the sentence imposed as a result was manifestly excessive. However, the main point that the High Court fixed upon was that the District Court

Judge  gave  insufficient  weight  to  the  fact  that  there  was  a  10 year  gap  in  the offending.  Such a gap is not present in this case.

[1] Daniels v Police [2012] NZHC 3364.

[2] Wilson v Police HC Rotorua CRI-2005-463-81, 2 December 2005.

[3] Henry v Police HC Rotorua CRI-2010-463-58, 31 August 2010.

[6]      For my part, I take it that the cases demonstrate that fixing a starting point at the maximum of two years’ imprisonment can be open to a sentencing Judge where the offender is a recidivist offender.   I agree with the point made by Heath J in Wilson v Police that at some point the issue of deterrence must take centre stage.

Decision

[7]      This is an appeal by way of rehearing.  I will be guided by the District Court

Judge’s reasoning but I must make my own decision.  However, I will not disturb his

sentence unless I find it to be manifestly excessive.

[8]      It is the final sentence of nine months’ home detention to which I must have regard.  The process by how it was reached is not really the point.  In my view, the taking of the maximum sentence as the starting point was high in the circumstances of this case but not out of the range available to the District Court Judge.  This was, after all, the appellant’s seventh offence.   Enough eventually has to be enough.   I accept that the circumstances in which the appellant came to be driving that night are relevant.  But he did not have to drive all the way home.  He could have moved the van out of the range of the fracas and found a convenient point to park and stay.  I am told that there is only one road between the party house and Opotiki and that the appellant had been driving for about 10 minutes before he was pulled over by a police officer who had been called to the party.

[9]      The discount of 25% given by the District Court Judge was also appropriate given the early guilty plea.

[10]     As to home detention, I think that the appellant was lucky to get it.   The District Court Judge took a more lenient approach than other Judges might have adopted.  I do have the authority to replace the sentence of home detention with one of imprisonment,  a factor that  is  frequently overlooked  when  appeals  are filed. However, in my view the circumstances in which the offending occurred make it reasonable to apply the more rehabilitative purposes of sentencing, which is ultimately what the District Court Judge did.

[11]     Accordingly, I find that the sentence imposed by the District Court Judge was not manifestly excessive. The appeal is dismissed accordingly.

Brewer J