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 risk of harm to others.  find that low risk of harm to others to be very complimentary to you, because clearly there is a significant risk of harm to others with you driving with a very high level of 1138 micrograms of alcohol per litre of breath on this occasion, and your other levels two of which have approached double the legal permitted maximum, this is nearly three t imes.

[5]       You are living with your four year old daughter in a two bedroom Housing New Zealand home as a solo parent.  You are unemployed and receiving a benefit.

[6]       You say you are only a social drinker, but you have that history of non-compliance with community-based sentences, which are set out in your list of previous convictions, some of which I have referred to.   The recommendation is for community detention and supervision and that is the one that is endorsed by your lawyer, and I am urged to undertake that result.

Approach to appeal

[9]      As I have said, the present appeal is concerned only with the District Court’s refusal to commute the sentence to one of home detention.  In that respect the Court of Appeal said in Manikpersadh v R that:2

[9]       Section  15A(1)  of  the  Sentencing  Act  2002  authorises  the imposition of home detention if:

(a)       the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

2      Manikpersadh v R [2011] NZCA 452.

(b)      the court would otherwise sentence the offender to a short- term sentence of imprisonment.

[10]      This Court in Osman v R supported William Young P’s comments in

R v Vhavha (in a dissenting judgment) when he said:

[29]     Eligibility for home detention depends upon the sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act 2002.  In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment.  There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence.  So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

(Emphasis added)

…

[45]    So, coming back to this case again, I do not see the requirements of holding the appellant to account, denunciation or deterrence as logically controlling the decision whether to commute the otherwise appropriate sentence of imprisonment to home detention.  That being so, and the appellant being in all respects a good  candidate  for  home  detention,  I  see  the  least  restrictive outcome principle (see s 8(g)) as the primary consideration, with the result that I would allow the appeal and sentence the appellant to nine months home detention.

[11]      This Court identified the appropriate approach in James v R in this way:

[17]     We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

(Footnotes omitted)

[12]      We  agree  with  counsel  for  the  respondent’s  assessment  that  the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise

of  a  fettered  discretion,  with  appellate  review  focusing,  as  in  other sentencing appeals to this Court, on the identification of error, if any, in the court below.

(Footnotes omitted)

Discussion

[10]     The  principal  planks  of  Ms  Jayanandan’s  submissions  were  that  Judge

Treston:

(a)      did not give reasons for declining home detention; and/or

(b)      wrongly focused solely on deterrence; and/or

(c)      “double counted” the aggravating features of Mr Motufitutama’s offending in the sense that he took them into account both in setting the  starting  point  and  later,  again,  when  exercising  his  s  15A discretion.

[11]     The third point can quickly be disposed of. As Ms See pointed out, the Court of Appeal in Manikpersadh said:

[14]     We endorse the observations of William Young J in Vhavha that in exercising the discretion whether to commute a sentence of imprisonment to home detention, those ss 7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing judge.

[15]      Section  7  deals  with  the  purposes  of  sentencing.  It  includes deterrence, denunciation, accountability, promoting a sense of responsibility, providing for the interests of the victim and the protection of the community. However, it also includes assistance to an offender's rehabilitation and reintegration.

[16]     Section 8 of the Act requires the Court in sentencing to take into account those matters set out in subss (a) to (j).   Those factors will be relevant in deciding whether a sentence of imprisonment initially is appropriate.    They  are  also  relevant  in  deciding  whether  or  not,  in  a particular case, a sentence of home detention might be imposed.  The s 8 factors include the gravity of the offending and culpability of the offender, the seriousness of the offence and victim impact.  But s 8 also requires the Court to have regard to the least restrictive appropriate outcome, the offender's personal circumstances including his personal and family background and relevant rehabilitation.

[12]     In my view Judge Treston’s analysis entirely accorded with that approach.

[13]     Similarly, the second point cannot stand in the face of the learned Judge’s sentencing notes.  Unlike in Manikpersadh he did not just focus on deterrence. The quotation from them that I have set out at [11] above make it clear that he turned his mind to all the relevant ss 7 and 8 matters.

[14]     As far as the first point is concerned, Ms Jayanandan is, I suppose, correct that Judge Treston did not specifically state how or why the balancing of the ss 7 and

8 matters caused him to conclude that an electronically monitored sentence was neither appropriate or adequate.  But, as I have said, he did make it clear that he had considered those matters, had weighed them and concluded that the factors that pointed in favour of a sentence of imprisonment were “not at all ameliorated” by the mitigating factors he had identified. While that may be a slightly unfortunate turn of phrase (in the sense that factors cannot be mitigating if they do not ameliorate) it seems to me that all the Judge is really saying is that the balance favours imprisonment.

[15]     It seems to me that the outcome of a balancing exercise and/or the exercise of a (fettered) discretion is always, in the final analysis, dependent on the exercise of the decision-maker’s judgment.  The exercise of that judgment is not necessarily capable  of  further  explication,  beyond  recording  the  factors  that  have  been considered and taken into account, and indicating which have carried more weight. In my view, that is precisely what the Judge has done here.  There is no obvious omission, oversight or error and, accordingly, no basis upon which it can be said that the District Court Judge was wrong to prefer a period of imprisonment over home detention.

[16]     The appeal is dismissed accordingly.

Rebecca Ellis J