Hunuhunu v Police

[2013] NZHC 1746

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-46 [2013] NZHC 1746

BETWEEN	THOMAS HUNUHUNU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 July 2013
Appearances:	A Burns for Appellant A Hill for Respondent
Judgment:	11 July 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

THOMAS HUNUHUNU v NEW ZEALAND POLICE [2013] NZHC 1746 [11 July 2013]

[1]      Mr Hunuhunu pleaded guilty in the District Court to three charges of driving whilst  suspended,  one  charge  of  resisting  arrest,  one  charge  of  possession  of cannabis simpliciter, two charges of being in possession of cannabis for sale or supply and one charge of dangerous driving.

[2]      On 4 June 2013, Judge Thomas sentenced Mr Hunuhunu to an effective term of two years imprisonment.1    He also imposed various periods of disqualification from holding or obtaining a driver’s licence.  Mr Hunuhuu now appeals to this Court against the sentence the Judge imposed.  He urges this Court to find that the Judge ought to have sentenced him to home detention, coupled with other conditions designed to treat his cannabis addiction.

The facts

[3]      The  charges  arise  out  of  a  series  of  incidents  that  occurred  between

18 January and 4 April 2013.  Throughout this period Mr Hunuhunu was subject to an order suspending him from driving.  The first charge, that of driving whilst suspended, occurred after Mr Hunuhunu was stopped at a routine traffic stop on

18 January 2013 whilst driving his motor vehicle.  He acknowledged that he had lost his licence through accumulating excessive demerit points.  He said, however, that he was the most sober person in his vehicle, and had driven for that reason.

[4]      Approximately two weeks later, on 2 February 2013, Mr Hunuhunu attended a concert at a stadium in Rotorua.   The concert had imposed a ban on patrons wearing gang regalia.  Mr Hunuhunu had ignored the ban, and arrived in a Black Power t-shirt. When the authorities sought to question him about this, he was seen to attempt to pass a sunglasses case to an associate. The police endeavoured to take the sunglasses case off Mr Hunuhunu.  He then resisted violently, and needed to be subdued and handcuffed.  When the police opened the sunglasses case, they found nine tinnies of cannabis inside it. This led to the charges of resisting arrest and being

in possession of cannabis.

1      Police v Hunuhunu DC Rotorua CRI-2013-063-000319, 4 June 2013.

[5]      The next charge arose out of an incident four days later, on 6 February 2013. On that date, Mr Hunuhunu was again found driving a motor vehicle whilst his driver’s  licence  was  suspended.    He  said  on  this  occasion  he  was  driving  his partner’s car home to her.

[6]      The  next  series  of  charges  arise  out  of  an  incident  that  occurred  on

21 February 2013, just two weeks after Mr Hunuhunu had last been caught driving whilst suspended.  On this occasion, Mr Hunuhunu was driving a motor vehicle towards Taupo with his partner.  Something about either him or the manner in which he was driving attracted the attention of a police patrol vehicle travelling in the opposite direction.  The patrol vehicle did a u-turn, and activated its flashing lights and siren.  Rather than stopping, Mr Hunuhunu sped off.  He was then seen to undertake a number of dangerous driving manoeuvres before losing control of the vehicle and crashing it into a fence.

[7]      When the police arrived at the scene, they smelt a strong odour of cannabis emanating from  the  vehicle.    They  then  searched  it,  and  found  a  kilogram  of cannabis leaf inside the car.  They also found nine ounces of cannabis head material packaged in ounce sized bags.  In addition, they found $680 in cash.

[8]      Mr Hunuhunu was then released on bail, but was subsequently subject to a visit by the police at his residential address on 4 April 2013.   When the police entered the lounge of the address, they found Mr Hunuhunu and his partner attempting to stow bags of cannabis under the cushions of a sofa.  On this occasion, the police found Mr Hunuhunu in possession of 111 grams of cannabis.  The police also found scales and empty point bags at the address.

The structure of the sentence

[9]      The Judge dealt with the charges in three different ways.  First, he selected a starting point to be imposed in respect of the three charges of driving whilst suspended.  He considered this offending to be serious, because Mr Hunuhunu had been caught driving on no fewer than three separate occasions within a very short space of time.  The Judge adopted an end sentence of nine months imprisonment on those charges.  He then imposed a concurrent sentence of two months imprisonment

on the charge of dangerous driving arising out of the police pursuit on 21 February

2013.  In addition, he imposed concurrent sentences of two months imprisonment on the charges of being in possession of cannabis and resisting arrest that arose out of the incident on 2 February 2013.

[10]     The Judge viewed the drug offending on 21 February 2013 as being the most serious, because it involved nine ounces of cannabis head material together with a kilogram of cannabis leaf. The Judge observed that Mr Hunuhunu was fortunate that he had been charged summarily with that offending, because an indictable charge could easily have been laid.  He viewed this offending as warranting a starting point of the maximum available to him.  This was a sentence of 12 months imprisonment. He then reduced that by 25 per cent to reflect Mr Hunuhunu’s early guilty plea, thereby ending up with an end cumulative sentence of nine months imprisonment on the charge of being in possession of cannabis for supply on 21 February 2013.

[11]     The Judge also regarded the offending on 4 April 2013 as serious, because it occurred within a relatively short period after Mr Hunuhunu had been released on bail on the earlier drug-related charge.  He adopted a starting point of eight months imprisonment on that charge, and after deducting two months to reflect an early guilty plea he arrived at an end sentence of six months imprisonment.  He imposed this sentence cumulatively on the other two charges, thereby producing an effective end sentence of 24 months imprisonment.

The argument on appeal

[12]     Counsel for Mr Hunuhunu submits that the Judge ought to have recognised the hierarchy of sentences contained in the Sentencing Act 2002 (“the Act”).   He pointed out that a sentence of 24 months imprisonment is a short-term sentence of imprisonment for the purposes of the home detention provisions of the Act.  Counsel submitted that Mr Hunuhunu needs treatment for his cannabis addiction, and that he had indicated to the probation officer that he was willing to undergo such treatment if directed to do so.   Counsel submitted that the Judge was wrong to impose the deterrent sentence of imprisonment, and that he ought instead to have imposed a sentence that contained both punitive and rehabilitative elements. Counsel submitted

that the ideal sentence to achieve both purposes would have been a sentence of 12 months home detention.

Decision

[13]     The power to impose a sentence of home detention has been described as a “fettered” discretion.2    It is fettered in the sense that it is governed by the purposes and principles of the Sentencing Act 2002.  Appellate courts are often reluctant to interfere with a Judge’s decision to either impose or not impose a sentence of home detention, because it amounts to interference in a judicial discretion.

[14]     In the present case, there are several factors to suggest that a sentence of home detention was plainly inappropriate. First, the seriousness of the offending and the fact that it occurred in so many ways over such a short period, meant that a deterrent sentence was required.   Although the sentence of home detention is undoubtedly  a  deterrent  sentence,  it  is  not  as  deterrent  as   a  sentence  of imprisonment.  I consider the Judge was justified in concluding that the gravity and scope of Mr Hunuhunu’s offending warranted a deterrent sentence beyond that provided by home detention.

[15]     Secondly, a sentence of home detention carries with it a degree of trust in the offender by the Court.  Although the offender is constrained to some extent by the use  of  electronic  monitoring  equipment,  the  sentence  cannot  control  what  the offender does within his or her home environment.  Mr Hunuhunu has numerous previous convictions for disobeying Court orders.  This is reflected most graphically by the present offending which involved repeated and blatant breaches of Court orders  without  any  apparent  recognition  by  Mr  Hunuhunu  that  he  was  acting wrongly.  He also has other previous convictions for breach of release conditions and driving whilst suspended, or when his licence was revoked.

[16]     When  that  is  coupled  with  Mr  Hunuhunu’s  acknowledged  addiction  to cannabis and his obvious proclivity to deal in cannabis, even whilst on bail, it cannot

2      Manikpersadh v R [2011] NZCA 452, at [10-12]; Fraser v R [2013] NZCA 250 at [20].

be said with any confidence that Mr Hunuhunu would be prepared to remain free from the consumption of, or dealing in, cannabis if sentenced to home detention.

Result

[17]     Taking those factors  into  account,  I  have  concluded that  the  Judge was entirely justified in imposing a sentence of imprisonment rather than home detention.

[18]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:

A Burns