Lal v Police
[2017] NZHC 1944
•15 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-230 [2017] NZHC 1944
BETWEEN AMITESH LAL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 August 2017 Counsel:
E Priest for Appellant
E Smith for RespondentJudgment:
15 August 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 15 August 2017 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Emma Priest (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
LAL v POLICE [2017] NZHC 1944 [15 August 2017]
Introduction
[1] Mr Lal appeals his sentence of 16 months’ imprisonment handed down by Judge AJ Johns in the District Court at Waitakere on 13 June 2017.1 Ms Priest for Mr Lal submits that the sentence is manifestly excessive and should have been commuted to one of home detention.
Background
[2] Mr Lal pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent offence) and one charge of driving while disqualified (third or subsequent offence).
[3] This was his fifth conviction for driving with excess breath alcohol. His previous offending took place on 20 June 2013, 26 July 2014, 1 May 2016 and
7 May 2016. The offending for which he was being sentenced took place on
31 December 2016.
[4] The conviction for driving while disqualified was his fourth. His previous offending took place on 29 December 2013, 26 July 2014 and 7 May 2016. The offending for which he was being sentenced took place on 31 December 2016.
[5] At his sentencing hearing, Mr Lal applied for an adjournment. He wanted to canvass the possibilities for an electronically monitored sentence. Judge Johns refused the application and proceeded to sentencing.
The sentencing decision
[6] It is clear that the major influence on Judge Johns was Mr Lal’s previous
offending. Having summarised it, her Honour said:2
… Of real concern to the Court is not only the number of offences that you have been convicted of, it is the closeness of them in time and the fact that on all but one occasion you have been caught driving with over twice the legal limit, and on the last occasion, just over three times the legal limit. On
1 Police v Lal [2017] NZDC 12552.
1 May 2016 you were stopped and you drove again with a level of over 900 six days later on 7 May.
[7] The Judge then dealt with matters of mitigation put forward on behalf of Mr Lal. Her Honour was unimpressed with them and, because they form part of the appeal, I will discuss each in turn.
[8] The pre-sentence report said that Mr Lal refused to consent to an electronically monitored sentence being canvassed and so the recommendation was a term of imprisonment. However, at the sentencing hearing Mr Lal’s counsel told the Judge that this was due to a misunderstanding. Mr Lal did not understand that the availability of an electronically monitored sentence might mean that he would not go to prison. He thought the possibility was the reverse; that is to say, an electronically monitored sentence might be imposed as an alternative to a non-monitored community based sentence. Accordingly, counsel asked the Judge to adjourn the hearing to allow an address to be canvassed for a sentence of home detention, and also to get information to show that Mr Lal had been to a CADS assessment or a
CADS course. The Judge declined to grant an adjournment, saying:3
I am not persuaded that this is an appropriate case for home detention. In considering whether or not to impose a sentence of home detention, the Court needs to look at the issue of rehabilitation and the information before me shows that you have no desire to rehabilitate yourself at all. And I do not consider in any event, given your previous convictions and given the level on this occasion, that it is in the public interest in any event, to allow you to remain in the community. You are a danger to every road user in New Zealand Mr Lal, and until you accept that you have got a serious issue with alcohol, you are going to continue to offend and you are going to continue to go to prison.
[9] Ms Priest submits that the Judge erred in refusing the adjournment. In Ms Priest’s submission, Judge Johns should have taken the opportunity to learn as much about Mr Lal’s situation as possible and, given that the sentence he was serving when he committed the index offences was one of community work and supervision, the next natural step up the hierarchy of sentencing was one of home detention.
[10] The Judge referred to comments in the pre-sentence report to the effect that Mr Lal blamed his offending on black magic to which he had been subjected by his ex parents-in-law. The Judge also had a “Personal Testimony” from Mr Lal giving detail of the effects of the black magic. The Judge took the references to mean that Mr Lal was unwilling to accept responsibility for his offending or to address factors behind his use of alcohol. Her Honour characterised the matters set out by Mr Lal as “a pile of nonsense”.
[11] Ms Priest submits that this was culturally insensitive of the District Court Judge. The submission is that for Fijian Indians such as Mr Lal, the belief in black magic and demonic possession is culturally ingrained and genuine. Judge Johns should have taken Mr Lal’s explanation seriously, and taken the advantage an adjournment would have conferred to call for more information.
[12] Part of what Mr Lal said in his Personal Testimony went to his conversion to Christianity. An effect of that conversion has been abstinence from alcohol. At the sentencing hearing, counsel for Mr Lal bolstered his request for an adjournment by saying that he wanted to get an affidavit from Mr Lal’s Minister. Evidently, the Judge was not influenced by that submission.
[13] The Judge referred to the tariff cases of Clotworthy v Police4 and Samson v
Police,5 and went on to say:6
In terms of the Sentencing Act, the most important thing is to hold you accountable for the potential harm done in the community. You could have killed people each time you got behind the wheel. You are a slight person and you have these incredible high readings and you continually drive under the influence of alcohol. If you have been caught five times, I can only begin to imagine how many times you have driven over the legal limit. You pose a real danger to any other road users and it is a miracle that you have not had an accident to date.
[14] Ms Priest submits it was wrong for the Judge to speculate as to how many other times Mr Lal might have driven over the legal limit.
4 Clotworthy v Police (2003) 20 CRNZ 439.
5 Samson v Police [2015] NZHC 748.
6 Police v Lal, above n 1, at [10].
[15] Judge Johns structured her sentence by adopting a starting point of
18 months’ imprisonment and imposed a two month uplift for the driving while disqualified offence and to take account of Mr Lal’s record of previous offending. That brought the starting point to 20 months’ imprisonment. Judge Johns allowed a
20 per cent discount for Mr Lal’s pleas of guilty, resulting in an end sentence of
16 months’ imprisonment.
[16] Ms Priest submits that this sentence is manifestly excessive, in any event, as it was not the least restrictive outcome in the circumstances. Those circumstances include, in particular, the rehabilitative efforts of Mr Lal, including abstinence from alcohol following his involvement with the Church and a new partner.
Fresh evidence
[17] Ms Priest applied for what she terms “fresh evidence” to be considered by the
Court in this appeal. The evidence sought to be admitted is:
(a) Affidavit from Mr Lal. This is an extended plea in mitigation but contains passages relating to the misunderstanding with the probation officer who wrote the pre-sentence report, and he also addresses his view of the sentencing hearing.
(b)Affidavit from Jessica Sharp. Ms Sharp is Mr Lal’s new partner. The two met in mid April 2017 and moved in together a couple of months later. Ms Sharp deposes that Mr Lal has not consumed alcohol since she met him and has not driven a car.
(c) Various certificates and documentation relating, in particular, to interactions with CADS (Community Alcohol & Drug Services). However, these all seem to pre-date the index offending.
(d)A letter from Rev Joel Mudaliar dated 31 July 2017 discussing, among other things, the biblical basis for the casting out of demons and evil spirits. He describes Mr Lal’s spiritual progress in glowing terms.
(e) Another letter from Rev Mudaliar, dated 20 June 2017, describing Mr Lal’s personal development within the Church. Again, this is in glowing and affectionate terms.
[18] It is quite clear that the evidence sought to be admitted is not fresh. It could all have been put before Judge Johns. There is no explanation as to why it was not. I have decided to have regard to it because of the ground of appeal that Judge Johns should have granted an adjournment so that she could make a properly informed decision as to whether home detention should be the preferred sentence. The fresh evidence is the material which Judge Johns did not receive because of the refusal to grant an adjournment. I will look at it to see whether, if Judge Johns had received it, it should have made a difference to the sentencing outcome. I am conscious that a sentencing appeal requires me to see if there has been an error sufficiently material that a different sentence should be imposed. It is not an opportunity for a second go at sentencing.
Discussion
[19] The issue comes down to whether, if Judge Johns had granted the adjournment and received the material now before the Court, her sentence of
16 months’ imprisonment should have been commuted to one of home detention.
[20] In her oral submissions, Ms Priest accepted, as was professionally appropriate, that the starting point of 18 months’ imprisonment was open to the Judge. I agree. Further, I cannot say that the Judge was in error to increase the starting point by two months to take account of the charge of driving while disqualified and the record of previous offending. I accept that inherent in charges of driving with excess breath alcohol and driving while disqualified in the aggravated forms is that the offending has occurred on three or more occasions. But the number of such further occasions is an aggravating factor.
[21] The discount of 20 per cent for Mr Lal’s pleas of guilty was generous.
[22] I accept Ms Priest’s submission that Judge Johns should have treated
Mr Lal’s belief in black magic with a greater degree of cultural sensitivity than she
displayed. I suspect it was more the way in which the belief was expressed that meant it failed to attract measured scrutiny. I point out that s 8(i) of the Sentencing Act 2002 requires the Court to take into account, among other things, the offender’s cultural background in imposing a sentence with a partly or wholly rehabilitative purpose.
[23] Nevertheless, I do not consider that Mr Lal’s belief that he was the subject of black magic is a mitigating factor. It is clear that Mr Lal was, particularly in 2016, going through a period of personal anguish. That is what is relevant. But, he blamed a great part of that anguish on the influence of black magic. He sought to partly excuse his resort to alcohol and his decisions to drive having consumed alcohol to his bad personal situation. In his Personal Testimony he concluded:
I feel that I solely am not accountable for the wrong doings which has been primarily caused by the tormenting of demonic, witchcraft and Blackmagic which was inflicted on me.
[24] It was open for Judge Johns to conclude that Mr Lal was seeking to avoid responsibility for his actions by blaming outside processes. The law does not allow that.
[25] I accept also Ms Priest’s submission that Judge Johns was wrong to speculate on the number of other occasions that Mr Lal might have driven undetected while under the influence of alcohol. However, I am satisfied that that was a vocalisation of a thought which occurred to the Judge in the course of delivering her sentence. It played no discernible part in the Judge’s sentencing analysis.
[26] As to the mitigating material which would have been before the Judge if there had been an adjournment, some of it was in part already before her. The pre- sentence report referred to Mr Lal’s conversion to Christianity and to his claim of abstinence from alcohol. But the Judge also had the pre-sentence report dated
13 September 2016 for the previous offending in May 2016. This also referred to the support of his new Church and CADS, and abstinence from alcohol. Less than three months later, Mr Lal committed the current offending. For the sentencing by Judge Johns he was simply again claiming the same mitigating personal factors.
[27] It seems to me that the only assistance that Judge Johns might have had from the fresh evidence is the account by Mr Lal’s new partner, Ms Sharp, of his ongoing efforts to rehabilitate himself. That would have given greater colour and detail to counsel’s submissions. However, it must be noted that the serious relationship to which Ms Sharp refers is very new. She deposes that on 6 June 2017 Mr Lal met her parents, obtained their blessing for the pair to be a couple and sometime after that the two moved in together. That could only have been a few days before he was sentenced.
[28] I do not agree with Ms Priest’s submission that continued offending of this kind should be met with a step-by-step ascension of the hierarchy of sentencing. It is true that the least restrictive sentence should be imposed, but that is the least restrictive sentence in all the circumstances. There is one factor which was implicit in Judge Johns’s sentence which I find is the crucial factor. That is that the index offending, which occurred on 31 December 2016, occurred while Mr Lal was serving a sentence of community work and supervision. This sentence was imposed on him on 13 September 2016 for the two sets of offending which occurred in May
2016. He was only sporadically compliant with his community work requirements and on 7 June 2017 he was convicted on a charge of breach of community work (representative), given a final warning, convicted and discharged.
[29] A sentence of home detention can only commute what is otherwise an appropriate sentence of imprisonment. Here, Judge Johns had a recidivist offender who wanted to claim credit for turning his life around through involvement in a new Church which included abstaining from alcohol. However, he had claimed credit for the same things at his sentencing for similar offending just a few months previously.
Decision
[30] I cannot say that Judge Johns erred in refusing to grant Mr Lal an adjournment so that he could canvass electronically monitored sentence possibilities. The Judge took the view that Mr Lal’s serious record of offending meant that he was not a candidate for home detention. Even if the adjournment had been granted, and
the material put before me as fresh evidence had been put before the Judge, that would not make the end sentence manifestly excessive.
[31] The appeal is dismissed.
Brewer J