Mailley v Police HC Auckland CRI-2010-404-376
[2011] NZHC 884
•28 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-376
BETWEEN ROBERT MAILLEY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 9 May 2011
Counsel: G E Minchin for Appellant
Y Clarisse for Respondent
Judgment: 28 July 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 28 July 2011 at 12:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS
Recordon Dower (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
COUNSEL Graeme Minchin
MAILLEY V POLICE HC AK CRI-2010-404-376 28 July 2011
Introduction
[1] Mr Mailley appeals against a sentence of 21 months’ imprisonment for
driving with excess blood alcohol and driving whilst disqualified.
[2] The sentence was imposed by District Court Judge Wade sitting at the Waitakere District Court on 5 October 2010. Unfortunately, the Judge’s sentencing notes were not recorded due to a fault with the recording system and (unsurprisingly) the Judge was unable to give a report on the sentencing when asked to do so some months later.
[3] My jurisdiction to hear and determine the appeal is created and defined by the Summary Proceedings Act 1957. The appeal is a general appeal.1 It must proceed by way of rehearing and the High Court has the same jurisdiction and authority as the District Court in determining it.2
[4] Accordingly, I advised counsel3 that I would rehear the matter and determine for myself the appropriate sentence, with the focus of the hearing being on the District Court Judge’s end sentence.
[5] The appeal hearing took place on 9 May 2011. It became clear from the submissions of counsel that the issue for me to decide was whether the law requires an end sentence of a term of imprisonment or whether a sentence of home detention is available. The pre-sentence report had been completed on 2 July 2010 and it did not have a home detention annex. I adjourned the hearing and directed that an updated pre-sentence report be prepared with a home detention annex. I advised counsel that once that report was received I would then give my decision unless either party required a further hearing.
[6] The updated pre-sentence report was filed in the Court on 11 July 2011. The conclusion of the author of the report was that the proposed residential address is
suitable for a sentence of Community Detention but not suitable for a sentence of
1 Summary Proceedings Act 1957, s 115.
2 Ibid, s 119.
3 Minute of Brewer J, 31 March 2011.
home detention. I directed counsel to file and serve further submissions by 27 July
2011. This was done. Neither party requested a further hearing.
Is a custodial sentence required?
[7] I have no doubt that when the appellant came before Judge Wade in October
2010 his case called for a custodial sentence. The appellant had pleaded guilty on
29 March 2010 to the following charges:
(a) One charge of driving with excess breath alcohol, third or subsequent, in breach of s 56(2) and 56(4) of the Land Transport Act 1998;
(b)One charge of driving while disqualified, third or subsequent, in breach of s 32(1)(a) and 32(4) of the Land Transport Act 1998; and
(c) One charge of failure to answer Police bail, in breach of s 37 of the
Bail Act 2000.
[8] The appellant has a lengthy criminal history. He has 17 convictions for drink driving over a period beginning in 1972 and culminating in the present offence committed on 4 February 2009. He has nine convictions for driving while disqualified. He has been sentenced to the full range of penalties over the years including community based sentences and many terms of imprisonment. In 2007 he was sentenced to Intensive Supervision for one year on a drink driving conviction. He has had his chances and had I been in Judge Wade’s position in October 2010 I would have come to the conclusion that sentencing precedent emphasising the needs to denounce, deter and protect would require a period of imprisonment.
[9] I am now persuaded that I should take a different view. That is because of the efforts the appellant has taken to address his drug and alcohol problem since his apprehension in February 2009. That is now nearly two-and-a-half years ago. Apart from a short period of imprisonment between 5 October 2010 and 22 November
2010 the appellant has been on bail. In that time he has abstained from alcohol, has
completed the Bridge programme and the Wings programme. The updated pre- sentence report of 30 June 2011 advises me in relation to the appellant himself:
(a) Having successfully completed the Bridge programme, the Salvation Army categorises the appellant as being at stage three of his recovery. The report says:
He is still actively involved with the Salvation Army, attending a support group meeting on Monday evenings, going to Recovery Church on Tuesday evenings, attending a meeting on Thursday afternoon and a Service on Sunday mornings. The writer was told that since completing a programme regarding Healthy Anger, that was held on a Wednesday morning, Mr Mailley has been spending this time doing voluntary work at the Salvation Army Family Store in Dominion Road. He also volunteers at other times and is now attending Bible study.
(b)The appellant also goes to the Wings Trust on Monday mornings to attend meetings and he works from 7:00 am to 5:00 pm Tuesdays and Fridays. His family members believe that he is “absolutely determined to combat his issues and that he has genuinely changed with regard to his drinking”.
(c) The appellant attends AA meetings on Wednesday and Friday nights, returning home by 10:00 pm.
(d)In a report dated 18 April 2011, by Dr Galpin of the Bexley Clinic, the appellant is diagnosed as having a Major Depressive Disorder and clearly meets the criteria for Alcohol Dependence syndrome. Dr Galpin at that time believed that the appellant was evidently making significant gains in terms of controlling his drinking and that continuing with alcohol based counselling was an imperative if he was to have any chance of not relapsing into future alcohol abuse.
(e) The author of the report assessed the appellant as being a suitable candidate for an electronically monitored sentence but suggested a sentence of Community Detention as being the most suitable.
[10] I do not need to go into the detail of why a person apprehended in February
2009 for drink driving should only now come to have his sentence determined in this Court. However, in my view the appellant is entitled to have me take account of the serious and sustained efforts he has made to rehabilitate himself over the past two- and-a-half years. I hold that those efforts mean that the focus of sentencing can shift from denunciation and protection of the community to rehabilitation and reintegration.
[11] I am satisfied that in these circumstances a sentence of Community Detention will be sufficient to achieve the purposes of holding the appellant accountable for the harm done to the community by his offending and protecting the community from him.
[12] I am also satisfied that a concurrent sentence of Intensive Supervision will reduce the likelihood of further offending through assisting him in his efforts to rehabilitate and reintegrate with society. I think it evident that his needs require the imposition of conditions for longer than 12 months.
Sentence
[13] The appeal is allowed and the sentences imposed by Judge Wade are quashed. I substitute sentences of:
(a) Six months’ Community Detention:
(i) The curfew address is 59 View Road, Auckland; (ii) The curfew period is 9:00 pm to 5:00 am daily;
(b) 18 months’ Intensive Supervision (standard conditions).
[14] These sentences are imposed on each of the three charges and are concurrent.
[15] The sentences will commence at 3:00 pm on Monday, 1 August 2011. The appellant will, before that time, report to a probation officer for the purpose of
commencing the sentences.
Brewer J
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