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 his assaults on his partner.

[8]      Finally, the charge sheet showed that Mr Nuku pleaded to the offence on the second call on 18 September 2014 after advice from the duty solicitor.  He was first remanded for sentence to 23 October 2014 and then to 31 October 2014.  He did not then appear. A warrant for his arrest was issued.  He was sentenced on 10 November

2014.

Sentence under appeal

[9]      On sentence the Judge accepted that Mr Nuku had not ‘since the turn of the century’ continued to offend regularly but he was amongst the worst repeat offenders whom the Judge had encountered.  But for the fact that Mr Nuku had not offended persistently recently, the Judge said, he would have taken as his starting point the two year maximum.

[10]     In  taking  instead  a  starting  point  of  one  year,  nine  months,  the  Judge identified five factors, derived from Clotworthy v Police, which reduce to three: (i) Mr Nuku’s blood alcohol level was moderate but ‘half again in excess of the base line’; (ii) Mr Nuku had nine previous convictions but his last two convictions were in 2001 and 2008 and his offence for sentence was six and a half years after his 2008 offence; (iii) earlier sentences had not deterred him. The Judge also assumed that Mr Nuku’s 2008 sentence, 12 months imprisonment, must have been imposed from a starting point of 18 months.

[11]     The Judge accepted, in principle, that Mr Nuku’s early plea warranted a full

25 per cent credit, five months.  But because he had failed to appear for sentence on

31 October 2014, he reduced that by one month.   He imposed the sentence under appeal.

Starting point issue

[12]     In Clotworthy, to which counsel also referred on this appeal, Wild J, after surveying an array of sentences imposed on persistent excess alcohol offenders in the District Court, identified ten factors relevant to sentence and in a graph correlated the sentences imposed with the number of previous convictions.   It continues to be a valuable resource.

[13]     In R v McQuillan, where the appellant had twice driven while disqualified and with an excess blood alcohol level, and had previous related convictions in both categories, the Court of Appeal said:1

The survey by Wild J in Clotworthy demonstrates that such a pattern of repeat  drink driving is  unfortunately not  rare in  New  Zealand,  and  that Judges   of   the   High   Court   have   consistently   upheld   sentences   of imprisonment in the order of … 12 months.

That was consistent, the Court said, with the fact that the maximum term for a third or later excess breath or blood alcohol offence was two years, in contrast to the three month maximum for a first or second offence.

[14]     The Court then said that in Clotworthy Wild J had recognised that sentencing can never be exact science and that offenders and offending vary widely; and thus, it said, his valuable survey did not ‘dispense with the need for the normal exercise of judgment by the sentencing Judge’.  It then said this:2

The choice of a sentence for offending of this type must reflect the circumstances of each individual offender and the nature of his or her present and past offending rather than a mechanical increase in the length of the sentence solely dependent upon the number of times a person has been convicted of a particular type of offence.

[15]     In a second decision shortly after, R v Parker, the Court endorsed McQuillan, but on a Crown appeal upheld a lenient sentence of 200 hours community work

1      R v McQuillan CA129/04, 12 August 2004 at [20].

2 At [22].

because, while the appellant had nine previous excess breath alcohol convictions, the last was 17 years before his most recent offence.3

[16]     Recent decisions of this Court on appeal, concerning sentences imposed on persistent  offenders  broadly  comparable  with  Mr  Nuku,  also  illustrate  how materially offenders and offending vary.4    The starting points taken in those cases range from 12 – 20 months, and the sentences imposed range from   nine – 18 months.  Set against those decisions the one year, nine month, starting point taken in this case is disproportionate.

[17]     In contrast to those offenders in that array, for whom starting points were taken  at  the  upper  end  of  the  range,  Mr  Nuku  did  not  drive  badly  or  while disqualified and, in the last 13 years, he has only offended twice and most recently six and a half years ago.  The highest starting point proportionate for his offence, I consider, is one year, four months.

Plea credit issue

[18]     The Judge rightly held that Mr Nuku was entitled to a full credit for plea but his decision to reduce that credit by one month, because of Mr Nuku’s failure to appear on the sentence, in breach of his bail, is not in accord with principle.  Strictly, that potentially was an aggravating factor to be taken into account before the credit.

[19]     That apart, Mr Nuku’s bail breach, in respect of which he was convicted and discharged, did not justify a one month deduction.  Mr Nuku was arrested a week after he was meant to appear for sentence.  He was then held in police custody for 36 hours before he appeared for sentence. That was sufficient to mark his offence.

Outcome

[20]     I allow Mr Nuku’s appeal.  I quash his present sentence of imprisonment.  I

sentence him instead to imprisonment for one year, assuming a starting point of one

3      R v Parker CA260/04, 6 December 2004.

4      Kucenko v  Police  HC Christchurch CRI-2012-409-108, 13  December 2012;  Dick  v  Police [2014] NZHC 434; Koopu v Police [2013] NZHC 1356; Innes v Police [2014] NZHC 1596; Toetoe v Police [2013] NZHC 2686; Nathan v Police [2014] NZHC 3288.

year, four months, reduced by four months to recognise his early plea.  The terms the

Judge imposed to apply on Mr Nuku’s release are not in issue, nor is his period of disqualification. They will remain in place.

P.J. Keane J