Kahukura v Police

[2014] NZHC 3254

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-41 [2014] NZHC 3254

BETWEEN

MICHAEL CHARLES KAHUKURA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014 via AVL
Appearances:	J Ross for the Appellant E Higbee for the Respondent
Judgment:	16 December 2014

ORAL JUDGMENT OF MALLON J

Introduction

[1]      Mr   Kahukura   was   convicted   of   driving   while   disqualified   (third   or subsequent),1  driving in a dangerous manner,2  failing to stop when followed by red and blue flashing lights,3  driving with excess breath alcohol causing injury,4  and refusing to give a blood specimen.5     He was sentenced in the District Court at Invercargill to 16 months imprisonment.6     He was disqualified from holding or obtaining a driver license for a period of 21 months and ordered to pay reparation of

$75.  He appeals against his sentence on the ground that home detention ought to

1      Land Transport Act 1998, s 32(1)(a) and 32(4) (maximum penalty of two years imprisonment or a $6,000 fine; minimum 12 months disqualification).

2      Section 35(1)(b) (maximum penalty of three months imprisonment or a $4,500 fine; minimum six months disqualification).

3      Section 52(1)(c) (maximum penalty of a $10,000 fine).

4      Section 61(1)(a) (maximum penalty of five years imprisonment or a $20,000 fine; minimum 12 months disqualification).

5      Section 60(1)(b) (maximum penalty of three months imprisonment or a $4,500 fine; minimum six months disqualification).

6      Police v Kahukura DC Invercargill CRI-2014-025-739, 23 October 2014.

KAHUKURA v NEW ZEALAND POLICE [2014] NZHC 3254 [16 December 2014]

have been  imposed  as  the least  restrictive  sentence  that  was  appropriate in  the circumstances.

The offending

[2]      On 6 April 2014 police received a call from a member of the public that a vehicle was being driven erratically on State Highway 1 heading to Invercargill.  A police unit was dispatched to intercept the vehicle and activated its red and blue flashing lights, as well as a siren, behind it.  Mr Kahukura, who was the driver of the vehicle, did not stop and instead accelerated away.

[3]      The area in which he was driving was a semi-rural area with a speed limit of

80 km/h that dropped to 70 km/h as the road approached the city.  Mr Kahukura was driving at speeds in excess of 150 km/h in these areas, including in the 70 km/h area. He continued into a residential area with a speed limit of 50 km/h and continued to speed, reaching speeds exceeding 100 km/h.   In this area he sped past a vehicle, almost mounting the footpath.

[4]      The road conditions were wet due to misty rain and there was an increasing volume of vehicular and pedestrian traffic as Mr Kahukura drove towards the centre of the city.   The police were instructed to abandon the pursuit and they did so roughly 4.8 kms from where Mr Kahukura had initially failed to stop in response to the red and blue flashing lights.

[5]      Mr  Kahukura  continued  driving  into  a  busy  shopping  area  where  other vehicles and pedestrians were present.  He overtook three cars at high speed, turned left, and turned right, driving a short distance before he crashed his car, hitting the rear of a parked vehicle.   The impact caused the parked car to be shunted onto a grass verge.  It caused his own car to spin 90 degrees into the path of an oncoming vehicle, with the rear of his car colliding with the front of the oncoming vehicle.

[6]      All  three  cars  were significantly damaged.    The driver  of the oncoming vehicle suffered cuts and bruises.  Mr Kahukura was located in the driver’s seat in a semi-conscious state with minor injuries but did not require hospitalisation.  He was arrested.  An evidential breath test gave a result of 558 mcgs of alcohol per litre of

breath.  He elected to give a blood sample but subsequently refused a request from a nurse.  He was belligerent and uncooperative with police, denied driving at all, and claimed that he had not driven for three years.

[7]      At the time of this incident Mr Kahukura was disqualified from holding or obtaining a driver license from 10 January 2014 to 9 January 2015 following an earlier incident of driving while disqualified.

Personal circumstances

[8]      Mr Kahukura is  26  years of age.   At the time of the offending he was unemployed.   At the time of sentencing he had the prospect of employment as a shearer.

[9]      Mr Kahukura has 17 previous convictions dating from 2005 to 2013.   The majority of his most recent convictions involve driving offences.   He has three convictions for driving while disqualified (in 2009, 2010, and 2013) and two convictions for driving while his license was suspended or revoked (2009 and 2011). He also has one prior conviction for driving a vehicle in a dangerous manner (2013) and one conviction for operating a vehicle carelessly (2011).   The balance of his offending consists of a range of relatively minor other matters.  He has never been sentenced to a term of imprisonment or home detention.

[10]     Barring one breach of community work in 2007, his compliance with past sentences has been generally good.   He had completed 370 hours of community work in total.  He also complied with the terms of his bail between the time of his arrest in April and the sentencing in October 2014.

[11]     The pre-sentence report identified relationship issues and harmful patterns of drug and  alcohol use as his main offending-related factors.   On the day of his offending, he had a dispute with his partner and left while angry.  He was under the influence of alcohol and synthetic cannabis and could not recall much of his offending.   Mr Kahukura did not see his use of alcohol as a problem and felt he could deal with it himself, although he stated he would attend counselling if directed.

He did offer to participate in a restorative justice conference and to apologise to the victim of his offending.

[12]     A further report considered the suitability of Mr Kahukura’s grandparents’ home for home detention.  They were reluctant to provide consent and were said not to fully understand the restrictions and implications involved in such a sentence. They had safety and welfare concerns compounded by Mr Kahukura’s use of drugs and alcohol.   Additionally, the address was remote and would render compliance with the reporting conditions difficult.

[13]     A third pre-sentence report assessed the address of Mr Kahukura’s uncle as being suitable, meeting all the technical requirements for a home detention address. Mr Kahukura’s uncle also consented to the conditions involved.   However the difficulties  with  the  address  were  that  it  was  remote,  there  was  lack  of  public transport to the area, and this would be exacerbated by the loss of Mr Kahukura’s licence.   On that basis, the report recommended a sentence of imprisonment with release conditions geared towards addressing Mr Kahukura’s use of alcohol.

District Court judgment

[14]     The Judge adopted the charge of driving with excess breath alcohol causing injury as the lead offence.  He adopted a starting point of 15 months imprisonment for that offence.   For the other aggravating factors and Mr Kahukura’s offending history, the Judge imposed an uplift of six months to reach a term of 21 months imprisonment.  A discount was given for Mr Kahukura’s guilty plea to reach an end sentence of 16 months imprisonment.   The Judge considered that home detention was not an option.

[15]     The Judge allocated the sentences as follows:

(a)       driving  with  excess  breath  alcohol  causing  injury  –  16  months imprisonment,7  disqualification for one year and six months from 11

7      Standard release conditions were to be imposed for a period of six months from the sentence expiry date. Special release conditions were also imposed as outlined in the pre-sentence report.

January 2015 and reparation of $75 to be paid within 60 days of his release from prison;

(b)failing    to    stop   when    required    to    do   so    –   conviction    and disqualification for three months from 11 July 2016;

(c)       aggravated driving whilst disqualified – one year imprisonment and disqualification for one year and one month from 11 January 2015;

(d)refusing to give a blood specimen – two months imprisonment and disqualification for six months from 11 January 2015; and

(e)       dangerous driving – two months imprisonment and disqualification for 12 months from 11 January 2015.

Analysis

[16]     An appellate court considering an appeal from a decision declining to impose home detention can only revisit that decision on limited grounds:8

[38]     … In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act.  Those  provisions  of  the  Sentencing Act  do  not  accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

[39]      In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.

[17]     The appeal is brought on the basis that the Judge erred by placing too much weight on denunciation and deterrence and did not consider that home detention was the least restrictive appropriate sentence.  The respondent submits that there was no error and that it is apparent that the Judge did consider the relevant matters.  I turn to

consider how the Judge approached this.

8      Doolan v R [2011] NZCA 542.

[18]     The Judge focussed on the serious nature of the offending.  His Honour began by noting that the case “tops” any other driving offending he has heard during his time as a District Court Judge.9   He referred to the “huge risks and the danger” that the offending posed to the public and that it was just lucky that someone did not die or was not really seriously injured.10    He referred to Mr Kahukura’s previous convictions for dangerous driving and driving while disqualified and that Mr Kahukura “just ignores those orders.”11

[19]     He said:12

Let me make it very clear to you now, home detention is not an option for this Court today and I do not intend to place you on home detention. You are going to prison on a full-time custodial basis … I just consider that you are an alcohol and drug abuser, you are a shearer, you are itinerant, and the type of sentences of a community-based nature for this type of offending for you have ended.

[20]     It is apparent therefore that the Judge considered the nature of the offending, the risk to the public it entailed, and Mr Kahukura’s failure to address his driving offending.   He gave primacy to denunciation over other purposes and principles of sentencing, stating:13

In the end I look at totality and I consider you going to prison on a full-time custodial basis for one year and four months as an appropriate reflection of the  community  and  the  Court’s  disdain  and  rejection  of  this  type  of offending.

[21]     The Judge did not refer to Mr Kahukura’s compliance with bail conditions. That compliance was in his favour.  However the Judge was correct to focus on Mr Kahukura’s past offending and non-compliance with orders for disqualification, and the significant risk that the driving in the present case entailed.  There was no error in this respect.

[22]     The cases relied on by Mr Kahukura’s counsel do not support the submission that the Judge erred either:

9      Police v Kahukura, above n 6, at [2].

10     At [7] and [9].

11 At [7].

(a)      One of those is a District Court decision and so does not particularly assist this Court considering an appeal.  In any event, in that case the offender’s personal circumstances were favourable.   Amongst other things the offender acknowledged his drinking problem and was motivated to do something about it. 14

(b)Another case is a Court of Appeal decision and so provides more guidance.15   The defendant in that case was a young first offender, had close family support, and showed significant rehabilitative potential.

(c)      The third case is a High Court decision referred to by the Crown in its submissions.16   In that case the High Court considered home detention should be substituted for the sentence of imprisonment by the District Court.   The defendant in that case was young, had no previous convictions, was deeply remorseful, had attended two restorative justice meetings, had offered a full apology which had been accepted

and was in full-time employment.

[23]     In each of these cases the personal circumstances favoured home detention notwithstanding the serious nature of the driving offending and other aggravating factors.   Another example along similar lines is a decision of the High Court in Bregmen  v Police.17      Despite the driving in  that  case causing serious  injury to children travelling in another car the Judge considered that the material painted “a picture of the appellant as a person for whom the crash has brought a new realisation of the effect that alcohol has had on her”.18   Her personal mitigating factors were that she had self-referred to counselling, she had showed a desire to turn her life around, she did not minimise her offending, and she had subsequently abstained from alcohol for a period of 10 months.  In those circumstances a sentence of home detention, in place of the term of imprisonment imposed in the District Court, was considered

appropriate.

14     Police v Maxwell DC Whakatane CRI-2009-087-143, 25 March 2009.

15     Manikpersadh v R [2011] NZCA 452.

16     Williams v Police [2014] NZHC 2666.

[24]     If the nature of the offence alone is considered, the offending at hand might be argued to be less serious than in some of the above examples, given that the victims in those cases suffered extensive injuries.  However Mr Kahukura’s driving was still serious because of the high level of risk to other road users it entailed.  It is considerably more serious than Mr Kahukura’s previous offending which warranted the leap from the community-based sentences he had received in the past to imprisonment on this occasion.  Mr Kahukura has no previous excess breath alcohol offences but he does have two recent driving offences (driving while disqualified and driving a vehicle in a dangerous manner).  His lack of prior drink-driving offences would arguably be of greater significance had Mr Kahukura demonstrated a greater willingness to change.   The pre-sentence report writer, however, describes Mr Kahukura  as  being  dismissive  of  the  concept  of  counselling  or  rehabilitation, although he would attend it if directed.  The significant personal mitigating factors present in other cases are essentially completely absent in Mr Kahukura’s case.

[25]     For these reasons the Judge made no error in declining home detention.

Result

[26]     The appeal against sentence is dismissed.

Mallon J