Ilolahia v Police
[2022] NZHC 1853
•29 July 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-191
[2022] NZHC 1853
BETWEEN TEVITA ILOLAHIA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 July 2022 Appearances:
C T Van Heeswyk for Appellant Y Fu for Respondent
Judgment:
29 July 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 29 July 2022 at 3:30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
ILOLAHIA v POLICE [2022] NZHC 1853 [29 July 2022]
Introduction
[1] Mr Tevita Ilolahia (the appellant) was sentenced by Judge A M Manuel in the Auckland District Court on 13 May 2022 to 13 months’ imprisonment and also disqualified from driving indefinitely following convictions for:1
(a)driving with excess blood alcohol (third or subsequent);2
(b)two charges of driving contrary to an alcohol interlock licence;3 and
(c)failing to answer District Court bail.4
[2] The appellant appeals against his sentence on the grounds that the Judge erred by failing to grant him leave to apply for home detention which resulted in an end sentence being imposed that is manifestly excessive.
Background
[3] On 14 August 2018 the appellant was sentenced on a charge of driving with an excess breath alcohol level of 569 micrograms per litre of breath; refusing a Police officer’s request to provide a blood specimen; and driving in a dangerous manner. He was sentenced to a term of six months’ home detention and 100 hours community work. The Court also made an alcohol interlock order, and the appellant was given a final warning.
[4] On 12 May 2020 the appellant was found by police to be driving a car without an alcohol interlock device fitted contrary to the order made on 14 August 2018. He was breath tested with a result of 178 milligrams of alcohol per 100 millilitres of blood.
1 New Zealand Police v Ilolahia [2022] NZDC 8759 [District Court decision] at [21].
2 Land Transport Act 1998, s 56(2) and (4).
3 Section 32(1)(b) and (3).
4 Bail Act 2000, s 38.
[5] On 30 August 2020 the appellant was stopped by police for not wearing a seatbelt. Once again the vehicle he was driving was not fitted with an alcohol interlock device, contrary to the court order.
[6] On 14 September 2020 the appellant breached his bail by failing to attend court when required.
District Court decision
[7] Judge Manuel commenced her sentencing decision by noting that the appellant had a “long history of drink-driving convictions” and that the index offending was his eighth conviction for drink-driving. His first drink-driving conviction was on 31 August 2004 with a reading of 448 micrograms of alcohol per litre of breath. His subsequent breath alcohol offending involved readings of 870, 862, 769 and 668 micrograms of alcohol per litre of breath. The appellant’s most recent breath alcohol driving conviction prior to Judge Manuel’s sentencing was in August 2018 when he had a level of 569 micrograms of alcohol per litre of breath.
[8] The Judge noted that the appellant’s sentencing had previously been adjourned four times, and she was unwilling to further adjourn the sentencing in order to enable a proposed address to be assessed as to its suitability for an electronically monitored sentence of home detention. The Judge observed that the appellant had already been afforded considerable opportunity to make arrangements regarding where he would be living and for the suitability of the premises for a community-based sentence to be assessed. She said that a sentence of intensive supervision and/or a community-based sentence would not be appropriate.
[9] The Judge also noted that the appellant’s previous sentences had included home detention, community work and supervision and that he had been given the opportunity to address his alcohol problem in the course of those sentences but had failed to do so. The Judge also observed that there was “little or no evidence of remorse” or of the appellant taking any steps to face up to his drinking problem.5 The Judge said that while a sentence of intensive supervision was said by the appellant’s
5 At [15].
counsel to be the appropriate sentence, there had been nothing to stop the appellant taking steps to address his drinking problem and indeed there had been months if not years for him to do so. She said that as far as she was aware the appellant had not attended or commenced a Community Alcohol and Drug Services (CADS) programme or any other similar programmes and he had not taken any steps to make any changes in his life and address his alcohol problems.
[10] Judge Manuel adopted a starting point of 15 months’ imprisonment for the drink-driving charge and added two months to take account of the other offending. She then allowed a discount of “about 20 per cent” in recognition of the appellant’s guilty pleas which she said had not been entered at the earliest opportunity. That produced the end sentence of 13 months’ imprisonment which the Judge imposed. The Judge also ordered that the appellant be indefinitely disqualified from driving pursuant to s 65(2) of the Land Transport Act 1998.
Submissions
The appellant
[11] Ms Van Heeswyk, counsel for the appellant, submits that the Judge erred by failing to grant the appellant leave to apply for home detention. She refers to Papa v New Zealand Police where Palmer J held that a failure to give reasons for not granting leave to apply for home detention pursuant to s 80I of the Sentencing Act 2002 (the Act) was a material error.6 Counsel submits that a sentencing judge must consider whether home detention should be imposed if it is technically available within the terms of s 15A of the Act, even where the defendant makes no submission that it should be imposed. Failure to do so will lead an appellate court to consider the matter afresh.7
[12] Ms Van Heeswyk submits that the appellant’s circumstances are very similar to those of Ranford v New Zealand Police where the appellant in that case was convicted of a seventh excess breath alcohol charge and was sentenced to home detention.8 Ms Van Heeswyk says that consistently with Ranford, the appropriate
6 Papa v New Zealand Police [2019] NZHC 1309 at [10].
7 Fairbrother v R [2013] NZCA 340 at [30].
8 Ranford v New Zealand Police [2021] NZHC 132.
sentence here would be for the Court to grant leave to the appellant to apply for home detention.
The respondent
[13] Ms Fu, for the respondent, accepts that by failing to give reasons for not granting leave to impose home detention the Judge made a material error. However, Ms Fu submits that in re-sentencing the appellant the Court should nevertheless conclude that a term of imprisonment is the least restrictive sentencing outcome that is appropriate in the circumstances. Counsel submits that the appellant has a “clear propensity” to drive while under the influence of alcohol and there is no evidence to suggest that he has done anything to address his alcohol problem. Ms Fu says that is a significant distinguishing factor between this case and Ranford, in which the appellant had taken steps to address his alcohol problem and had self-referred to Narcotics Anonymous.
[14] Ms Fu submits that the observations of Venning J in Oltaches v New Zealand Police are also applicable here:9
Against that [need for rehabilitation] there does come a time when the need for deterrence and the safety of the community must take precedence over the possible rehabilitative needs of the offender.
[15]Venning J further commented that:10
… in [the appellant’s] case it has to be observed that he has had several opportunities in the past to address his alcohol issue and also to attend a rehabilitative course to address his offending.
[16] Ms Fu therefore submits that the least restrictive sentencing outcome in the appellant’s case is imprisonment.
Discussion
[17]Section 80I of the Act provides:
(1)This section applies if—
9 Oltaches v Police [2021] NZHC 908 at [17].
10 At [16].
(a)a court has sentenced an offender to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[18] At the time when the appellant was sentenced although he was unable to propose a suitable residential address at which to serve an electronically monitored sentence of home detention, having regard to the length of the sentence she imposed, the Judge ought to have provided reasons for not granting him leave to apply for home detention. Although it is implicit from the Judge’s decision that she did not consider a sentence of home detention to be appropriate, it was nevertheless necessary for her to deal with the issue expressly by giving reasons for that decision. Her failure to provide reasons for not granting him leave to apply for home detention pursuant to s 80I of the Act was a material error, with the consequence that the sentence must be considered afresh.11
[19] Here the appellant takes no issue with the Judge’s decision that a sentence of 13 months’ imprisonment was appropriate, but says that the Judge’s failure to give reasons for her decision not to grant leave to apply for home detention was a material error, and that she ought to have granted him leave.
[20] As Palmer J observed in Papa, the issue on appeal is not whether to grant an application for home detention, but rather whether to grant leave for such an application to be made.12 Despite this distinction, similar considerations will be relevant to the assessment as leave will only be granted under s 80I where the court “would have sentenced the offender to a sentence of home detention if a suitable
11 Papa v New Zealand Police, above n 6, at [10].
12 At [11]. If leave is granted under s 80I then Mr Ilolahia may apply to the court at any time to cancel his sentence of imprisonment and substitute it with a sentence of home detention under s 80K of the Act.
residence had been available”.13 For reasons which may be stated briefly, I do not consider that a sentence of home detention is appropriate in this case, irrespective of whether or not a suitable residence is now available.
[21] Unlike the circumstances in Ranford where the appellant had self-referred to Narcotics Anonymous, independently verified that he had been attending, and “[b]y all accounts … was making good progress”,14 there is no cogent evidence in this case of Mr Ilolahia having taken any steps to address his issues with alcohol abuse. I note that Ms Van Heeswyk says that the appellant has instructed her that he has made some attempt to engage with CADS but his attempts were frustrated by disruptions caused by the COVID-19 lockdowns. However there is no affidavit evidence nor any documentary evidence produced by or on behalf of the appellant stating or confirming that he has taken any steps towards addressing his alcohol problem. The earliest of Mr Ilolahia’s index offences occurred on 12 May 2020. His sentencing before the District Court was subsequently adjourned four times, and it is now over two years since the offending occurred. I consider that if the appellant was motivated to make a genuine effort to address his alcohol abuse then some evidence confirming his efforts to do so would be available and his failure to provide any such evidence shows that he has not taken any such steps.
[22] I respectfully agree with the observations of Venning J in Oltaches, that in sentencing repeat offenders such as the appellant, considerations of deterrence and denunciation and protecting the community from the risk of intoxicated drivers necessarily takes precedence over the rehabilitative interests of the offender. The present offending is the appellant’s eighth conviction for drink-driving and quite obviously the previous sentences imposed have not deterred him from repeat offending. On each occasion when he has driven with excess breath alcohol levels he has presented a significant danger to other road users. An indication of the nature of that risk is apparent from his high levels of breath alcohol when he previously offended which involved him exceeding the legal limit by a considerable amount with positive tests of 870, 862, 769 and 668 micrograms of alcohol per litre of breath. It is also clear
13 Section 80I(1)(b). Unlike the situation in Papa where Palmer J was not in a position to “judge the merits” of home detention, I have been addressed by both parties on the suitability of home detention and proceed accordingly.
14 Ranford v New Zealand Police, above n 8, at [9] and [24].
that in sentencing the appellant for his previous drink-drive offending that the courts have afforded him numerous opportunities over a period of years to address his alcohol abuse and he has irresponsibly failed to do so. It is simply good fortune that no one has been seriously injured or killed as a result of his offending.
[23] While I accept that long-term rehabilitation will provide the best protection to the public in the future I also note that the appellant’s rehabilitative needs are not prevented or ignored as a result of the imposition of a sentence of imprisonment. Judge Manuel made provision in her sentence for “six months post-release special and standard conditions, with the special conditions to address the appellant’s issues with alcohol”.15 Those conditions will presumably involve rehabilitative interventions designed to address his alcohol abuse, potentially by requiring his engagement with CADS.16 Such rehabilitative measures are plainly the best way of protecting the public in the long-term by ensuring that Mr Ilolahia addresses the root cause of his offending.
[24] For these reasons, I am satisfied that a sentence of imprisonment is necessary in the circumstances of this case, and that a sentence of 13 months’ imprisonment is the least restrictive sentencing outcome that is appropriate for the appellant’s offending even if a suitable residence for home detention is now available. I therefore decline to grant leave for Mr Ilolahia to apply for substitution of the sentence of imprisonment for a sentence of home detention under s 80I of the Act.
[25] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. While I have found that there was a material error in Judge Manuel’s sentencing because of her failure to give reasons for not granting the appellant leave to apply for home detention, I am nevertheless satisfied that the sentence she imposed was not manifestly excessive and I find that a different sentence should not be imposed.
15 District Court decision, above n 1, at [21].
16 Were I required to sentence Mr Ilolahia myself I would have imposed conditions of this nature pursuant to s 93 of the Sentencing Act 2002.
Result
[26]The appeal is accordingly dismissed.
Paul Davison J