Koteka v Police HC Auckland CRI 2010-404-166
[2010] NZHC 1192
•13 July 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000166
ROBBIE EDWARD KOTEKA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 12 July 2010
Appearances: H Kim for the Appellant
K Wendt for the Respondent
Judgment: 13 July 2010
RESERVED JUDGMENT OF BREWER J
This judgment was delivered by me on 13 July 2010 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel:
H Kim, P O Box 76538, Manukau City 2241. Fax: 09 263 0458. Email: [email protected]K Wendt, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629
Email: [email protected]
KOTEKA V NZ POLICE HC AK CRI-2010-404-000166 13 July 2010
[1] Mr Koteka appeared in the District Court on 11 May 2010 for sentence on one charge of driving with excess breath alcohol and one charge of driving whilst disqualified. Both of those charges were in respect of third and subsequent occasions. He was sentenced to six months’ imprisonment and appeals that sentence.
Facts
[2] Mr Koteka was stopped because he was driving at a high speed and was seen running through a red light. His breath was tested and found to contain 981 micrograms of alcohol per litre of breath. Additionally, he was driving whilst disqualified.
[3] This is Mr Koteka’s fourth conviction for driving with excess breath alcohol and his third conviction for driving while disqualified. His record now reads:
1993excess breath alcohol – reading 790 microgams per litre against the allowable maximum of 400;
1999excess breath alcohol – reading 1090 micrograms per litre against the allowable maximum of 400;
2008excess breath alcohol – reading of 817 micrograms per litre against the allowable maximum of 400;
2010excess breath alcohol – reading of 981 micrograms per litre against the allowable maximum of 400.
[4] His record in terms of driving while disqualified now reads:
1999 driving while disqualified;
2004 unlicensed driver failed to comply with prohibition;
2009 driving while disqualified;
2010 driving while disqualified;
2010 failed to comply with prohibition against driving.
[5] A feature of this record is that on three occasions when he was tested for excess breath alcohol he was more than twice the legal limit. On one occasion he was very nearly twice the legal limit. It is to be noted also that the present offending occurred within about 15 months of the previous offence.
[6] Additionally, on the same day as he was sentenced by Judge Blackie (the sentence he now appeals) he was convicted and discharged on a charge that on 27
March 2010 (when he was on bail) he drove a motor vehicle despite having been lawfully forbidden to drive.[1]
District Court sentencing
[1] Sections 52(1)(c) and 113(2)(e), Land Transport Act 1998.
[7] In his sentencing the District Court Judge summarised his view of the appellant’s driving as follows:
[4] You are a hazard to other motorists on the road. You have demonstrated this now for a period of the last 17 years. You do not seem to register that drinking and driving is not acceptable in our community and you do not seem to register that on each occasion that you have been apprehended for drinking and driving you were well over twice the legal limit, sometimes approaching three times the legal limit. You and others like you have got to learn that drinking and driving is totally unacceptable. It is not as thought publicity is not given to it; it is not as though you do not know.
[8] The Judge also noted that the appellant ignored the Court’s directions regarding disqualification from driving.
[9] Accordingly, in fixing his sentence the District Court Judge put emphasis on the sentencing principles of denunciation, deterrence, and accountability. He
referred to the well known case of Clotworthy v Police[2] and concluded that the appellant fell into the category of persons that should be sentenced to a period of imprisonment. He considered whether community detention would be a suitable sentence (as had been recommended in the presentence report) but rejected it saying it would not be seen as a deterrent by the appellant. He had regard to the assessment by the probation officer that the appellant had a high risk of re-offending and showed little motivation to do anything about changing his lifestyle. The Judge fixed a starting point of nine months’ imprisonment in respect of each of the charges but discounted that to six months’ imprisonment as a result of the plea of guilty. I note that this was a generous discount since originally the appellant pleaded not guilty to the charges.
[2] Clotworthy v Police (2003) 20 CRNZ 439 (HC).
[10] In addition, Judge Blackie imposed special conditions on the appellant’s release. The first was that he undertake an alcohol assessment, and if found suitable complete an alcohol and drug addiction programme as recommended by the probation officer. Secondly, that he undertake and complete an assessment by way of a departmental rehabilitation programme, and attend that programme if considered suitable. Thirdly, that he attend such maintenance programmes as might be directed by the probation officer and finally that he complete and attend any other treatments or programmes that might be recommended by the probation officer.
[11] Judge Blackie considered that this sentence addressed both a need for a punitive response to the appellant’s driving and also the need for a rehabilitative response.
Appeal
[12] Ms Kim advanced the appeal on two grounds:
a) That the sentence imposed is manifestly excessive in the circumstances; and
b)The Judge failed to give adequate consideration to the purposes and principles of the Sentencing Act 2002.
[13] On the first ground, Ms Kim referred to Clotworthy v Police but only for the purpose of noting the dicta by Wild J that the sentencing exercise in this area should not be a purely mathematical one. She then cited a number of cases where a more lenient view was taken by the Court.
[14] Ms Kim in her examination of the purposes and principles of the Sentencing Act submitted that the sentencing Judge placed too much weight on deterrence, denunciation, and the need to protect the community while “leaving no room for the appellant’s prospects on rehabilitation and re-integration”.
[15] Ms Kim submitted that the appellant had shown remorse and that he had voluntarily attended the community alcohol and drug services “Getting Started Programme”. This was attested to in the pre-sentence report. Accordingly, Ms Kim submitted that the appellant had taken a significant step towards rehabilitating himself and this had not been given sufficient weight by the sentencing judge.
[16] Ms Kim stressed that rehabilitation is a legitimate purpose of sentencing and that re-integrative measures are a part of this. She referred to the supporting documents which showed that the appellant had had a good work record since 20
February 2007 and was a valued employee.
[17] Ms Kim also submitted that having regard to the rehabilitative aspect of sentencing the District Court Judge had failed to consider the least restrictive outcome which should be applied to the appellant and the desirability to keep offenders in the community (ss 8 and 16 of the Sentencing Act). She emphasised that the pre-sentence report recommended community detention and intensive supervision.
[18] I asked Ms Kim why her submissions did not mention the driving while forbidden charge referred to in para [6] above. Ms Kim was unaware of that charge and thought that the appellant must have entered his plea through the Duty Solicitor.
The Crown’s submissions
[19] The Crown’s submissions were, in essence, that the District Court Judge had properly taken into account and balanced the sentencing requirements prescribed by the Sentencing Act. Particular note was taken of the dicta by Wild J in Clotworthy v Police as to relevant factors to take into account when sentencing against a background of multiple excess breath alcohol convictions. Crown counsel noted the following:
“(a) The level – here it was 981 micrograms of alcohol per litre of breath and so a high level and approximately 2.45 times over the limit:
(b)The length of time since the last drink drive conviction – just less than two years elapsed since his last drink drive conviction;
(c)The manner of driving – the appellant was stopped for dangerous driving;
(d)Licence status – he was disqualified having been sentenced to an earlier driving while disqualified charge five months earlier to the offending in question;
(e) Guilty pleas – a not guilty plea was entered 10 days after the appellant’s first appearance, which was vacated and a guilty plea entered almost two months later at the third appearance by the appellant at a status hearing so it was not at the earliest opportunity and after initially entering a not guilty plea;
(f)Previous sentences and responses – the Courts have previously imposed fines and disqualification for the appellant’s excess breath alcohol or driving whilst disqualified charges in 1993, 1999, 2008, and 2009. The Court also imposed non-residential periodic detention for the appellant’s similar offending in 1999;
(g) The record for other offending – the appellant amassed a five page criminal history from 1985 to 2009, which is a combination of driving offences, breaches of Court orders, property and dishonesty offending. Of these five pages, there are 36 convictions (excluding nine youth court admonishments and the three offences that the appellant was sentenced on the date in question). The sentences imposed for those offences vary across a variety of sentencing options including imprisonment in 1989 for two breaches of periodic detention. The previous offences also show a continuing and consistently poor driving record generally;
(h)Remorse – the appellant purports remorse; however, the Court of Appeal in R v Hessel[3] noted at [24] – [28] in the context of reduction for a guilty plea, “non-exceptional genuine remorse” should no
[3] R v Hessell [2009] NZCA 450.
longer be considered a separate mitigating factor for the purposes of s 9(2)(f) of the Act; and
(i)Mitigating personal or family circumstances – the respondent is not aware of any matter that would reduce the gravity of the offending or the appellant’s culpability or otherwise have a significant bearing on sentence”.
[20] Crown counsel was aware of the latest driving while forbidden offence and included it in her submissions as adding weight to the Crown’s position.
Decision
[21] Ultimately, the issue for me on this appeal was whether the sentence of six months’ imprisonment is manifestly excessive in the circumstances. I have concluded that it is not. Firstly, it is in line with penalties imposed in a number of other cases, including Clotworthy v Police. Secondly, the appellant, by his record, has shown himself to be a repeat offender who not only drinks and drives but ignores consequent prohibitions against driving or disqualifications from driving. He has a significant criminal history on unrelated charges and his personal circumstances show only that for the past three years he has had a good work record. He appears to be a single man living with his sister and has been assessed in the pre-sentence report of having a high risk for re-offending.
[22] Against these circumstances, I am of the view that the District Court Judge was correct in emphasising the deterrent and denunciatory principles of sentencing. He was aware of the need to provide for rehabilitation and re-integration and structured his sentence to provide for that with special conditions to be followed subsequent to release.
[23] I am of the view that the sentence was within the range available to the District Court Judge and was not manifestly excessive. Accordingly, I dismiss the appeal.
[24] The appellant is to surrender himself to the Police at the Manukau Police Station at 1 pm on Wednesday, 14 July 2010 and is to be in custody thereafter to serve the term of imprisonment imposed.
……………………….
Brewer J
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