Motufitutama v Police - [2013] NZHC 2484

IN THE HIGH COURT OF NEW ZEALAND [AUCKLAND REGISTRY

CRI-2013-404-000236 [2013] NZHC 2484

BETWEEN SWENDSON MOTUFITUTAMA Appeallant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 September 2013

Counsel:

I Jayanandan for the Appellant
R J Y See for the Respondent

Judgment:

23 September 2013

JUDGMENT OF ELLIS J [Re: Appeal Against Sentence]

This judgment was delivered by Justice Ellis on 23 September 2013 at 2.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

MOTUFITUTAMA v NZ POLICE [2013] NZHC 2484 [23 September 2013]

[1] Mr Motufitutama appeals against his sentence of six months’ imprisonment on his fifth excess breath alcohol (EBA) conviction. He contends that the learned District Court Judge was wrong not to commute that sentence to one of home detention.

Background

[2] On 1 June 2013, at about 9.00 pm, Mr Motufitutama was driving his car. He was distracted by a text message, drove onto the wrong side of the road, mounted the curb and crashed into a street light, removing it from the ground.

[3] Subsequent breath tests revealed that Mr Motufitutama’s breath contained

1138 micrograms of alcohol per litre of breath, almost three times the legal limit.

[4] Mr Motufitutama admitted that he had been drinking and driving, and said that he was dropping off a mate on his way home.

[5] Mr Motufitutama later pleaded guilty to, and (on 15 August 2013) was sentenced on, the following charges:

(a) Driving with excess breath alcohol (third or subsequent offence), pursuant to ss 56(1) and (4) of the Land Transport Act 1998 (LTA): maximum penalty two years’ imprisonment or a $6,000 fine; mandatory indefinite disqualification under LTA s 651; and

(b) Driving a motor vehicle in a dangerous manner, pursuant to s 35(1(b)

of the LTA: maximum penalty three months’ imprisonment or a

$4,500 fine; mandatory disqualification from holding a licence for at least six months.

[6] Mr Motufitutama is 45 years old. He is unemployed and is a solo parent to his four year old daughter.

1 Section 65 applies to Mr Motufitutama because his last previous EBA conviction was less than five years ago and on account of his breath alcohol level being above 1000 mg.

Sentencing in the District Court

[7] In arriving at the sentence from which Mr Motufitutama now appeals, Judge Treston noted his previous EBA convictions and his previous convictions for breaches of driving restrictions, driving while disqualified, breaches of bail, breaches of supervision, multiple driving while disqualified convictions, and breaches of periodic detention.

[8] Because of the way in which the appeal was advanced it is necessary to set

out the Judge’s subsequent reasoning in full. He said:

[4] The probation officer’s report indicates you are now 46 years of age. It is said and confirmed that it is your fifth conviction. You are remorseful. You offered to drive a friend home, fully aware you were over the legal limit. You previously served community work; the report says medium risk of re-offending and low…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 2484
Decision Date: 23 September 2013

CaseChat Overview and Summary

Motufitutama appeals against his six-month imprisonment sentence for his fifth excess breath alcohol conviction. The District Court Judge, Judge Treston, sentenced Motufitutama to imprisonment for his driving with excess breath alcohol and driving in a dangerous manner convictions. Motufitutama contends that Judge Treston was wrong not to commute the sentence to one of home detention. Motufitutama submits that Judge Treston did not give reasons for declining home detention, wrongly focused solely on deterrence, and "double counted" the aggravating features of his offending. Motufitutama argues that home detention is a less restrictive alternative to imprisonment and would be appropriate in his case.

The Court notes that Motufitutama is a repeat offender who drove with a high level of alcohol in his system. Motufitutama also has a history of non-compliance with community-based sentences. The Court finds that Judge Treston considered all the relevant sentencing purposes and principles in deciding whether to impose home detention. The Court concludes that Motufitutama's arguments do not establish that Judge Treston erred in exercising his sentencing discretion. The Court dismisses the appeal and affirms the six-month imprisonment sentence.

The Court finds that Judge Treston's sentencing analysis accorded with the appropriate approach. The Court rejects Motufitutama's arguments that Judge Treston did not give reasons for declining home detention, wrongly focused solely on deterrence, or "double counted" aggravating factors. The Court finds that Judge Treston considered the relevant sentencing purposes and principles and weighed the aggravating and mitigating factors in deciding that imprisonment was the appropriate sentence. The Court concludes that Motufitutama's arguments do not establish that Judge Treston made an error in exercising his sentencing discretion. The appeal is dismissed and Motufitutama's six-month imprisonment sentence is affirmed.

Orders