Nuku v Police - [2015] NZHC 137

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000036 [2015] NZHC 137

BETWEEN
CHRISTOPHER ROBERT NUKU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 February 2015

Appearances:

J M Woodcock for Appellant
A W M Britton for Respondent

Judgment:

11 February 2015

JUDGMENT OF KEANE J

This judgment was delivered by me on 11 February 2015 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, New Plymouth

NUKU v POLICE [2015] NZHC 137 [11 February 2015]

[1] On 10 November 2014 Christopher Nuku was sentenced to imprisonment for one year, five months, for driving with an excess blood alcohol level, 121 milligrams of alcohol per 100 millilitres of breath; an offence in the aggravated category. He was disqualified from driving for 18 months. His then extant sentence of community work was cancelled.

[2] Mr Nuku appeals his sentence as manifestly excessive. He contends that the Judge’s starting point, one year, nine months, was excessive, and that the Judge gave undue weight to his previous related convictions. He also puts in issue the month the Judge deducted from his credit for plea, because he had failed to appear for sentence, in breach of bail.

[3] Mr Nuku appealed three days out of time and I grant him leave to appeal, unopposed.

Sentencing materials

[4] The agreed fact summary states that on 9 July 2014 Mr Nuku was stopped at a check point in New Plymouth, that he was tested, that he elected to have a blood sample taken and that the resulting analysis established his excess breath alcohol proportion.

[5] The summary also says that Mr Nuku did not explain why he had been driving. But, in a letter on sentence, he said that since 2008 he had relied on other drivers after drinking, but the young man who drove him home on 10 November was uncooperative and drove past his road. He took over and that was when he was apprehended. He was surprised at the analysis result. He had only had one jug at the Salty Dog.

[6] Mr Nuku’s criminal and traffic history is extensive and begins in 1974. At the date of sentence he was completing community work for an assault on his partner. Most materially, as the Judge said, it shows that Mr Nuku then had nine previous drink driving convictions, eight between 1978 – 2001, and one in 2008. He had also, I see, five convictions for driving while disqualified, the last two of which

aggravated his seventh and eighth drink driving offences in 2000 – 2001. His 2008 offence, like his present offence, was not aggravated in that way.

[7] Mr Nuku was imprisoned for his last three excess breath alcohol offences and his pre-sentence report recommended that he again be sentenced to imprisonment. While he had complied with the many sentences imposed on him, designed to counter his alcohol dependency and abuse, neither had abated. Home detention, it said, was not feasible because of…

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: [2015] NZHC 137
Decision Date: 11 February 2015

CaseChat Overview and Summary

In the case of Nuku v Police, Christopher Robert Nuku appealed against his sentence of imprisonment for driving with an excess blood alcohol level. Nuku was sentenced to one year, five months, in addition to a disqualification from driving for 18 months. Nuku's appeal was based on the grounds that the starting point of the sentence was excessive and that the judge had given undue weight to his previous related convictions. Nuku also argued that the judge should not have deducted a month from his credit for plea due to his failure to appear for sentence, as it was in breach of his bail.

The legal issues before the court were whether the starting point of the sentence was appropriate and whether the deduction from the credit for plea was justified. The court examined the sentencing principles and the factors that should be taken into account when determining a sentence for a persistent offender. The court also considered the appropriate credit for plea, and whether the failure to appear for sentence justified a reduction in the credit.

The court found that the starting point of the sentence was disproportionate and that the highest starting point proportionate for Nuku's offence was one year, four months. The court also found that the deduction from the credit for plea was not in accord with principle, and that the failure to appear for sentence did not justify a one-month deduction. The court allowed Nuku's appeal and resentenced him to imprisonment for one year, reduced by four months to recognise his early plea.

The final orders of the court were that Nuku's original sentence of imprisonment was quashed and replaced with a sentence of imprisonment for one year, reduced by four months to recognise his early plea. The terms of the sentence imposed by the judge would remain in place.

Orders