Palu v Police - [2018] NZHC 758

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-1

[2018] NZHC 758

BETWEEN
PAEA I VAHAFOLAU PALU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 April 2018

Appearances:

R Ord for the Appellant

J R Crawford for the Respondent

Judgment:

20 April 2018

JUDGMENT OF CULL J

[1] Mr Palu appeals his re-sentence of six months’ imprisonment, after breaching his home detention sentence, on charges of driving while disqualified1 and refusing a blood specimen.2 Mr Palu was re-sentenced on 12 February 2018 in the District Court at Nelson.3 A concurrent sentence of one months’ imprisonment was imposed for breaching home detention.4

[2] Mr Palu appeals his re-sentence on the grounds that the sentence was manifestly excessive. He does not appeal his sentence on the breach of home detention.

[3] The Crown opposes the appeal, arguing that the sentence is well within the acceptable range.

1      Land Transport Act 1998, s 32(1)(a) and (3); maximum penalty three months’ imprisonment.
2      Land Transport Act 1998, s 60(1)(a) and (3); maximum penalty two years’ imprisonment.
3      Department of Corrections v Palu [2018] NZDC 2557.
4      Sentencing Act 2002, s 80S(a); maximum penalty one year’s imprisonment.

PALU v NEW ZEALAND POLICE [2018] NZHC 758 [20 April 2018]

[4] The appeal is allowed. The sentence of six months’ imprisonment is quashed and a sentence of four months’ imprisonment is imposed, with the same post-release conditions and special release conditions as imposed by the original sentencing Judge. In addition, I direct that the defendant, on his release from prison, is to attend the Nelson Probation Centre, to be assessed and undertake drug and alcohol counselling at the earliest opportunity. All other post-release conditions will apply.

Factual background

[5] On 2 July 2015 Mr Palu was indefinitely disqualified from driving by the Manukau District Court. On 1 May 2009, Mr Palu was convicted of driving with excess breath alcohol in the Auckland District Court. On 30 July 2010, and again on 2 July 2015, Mr Palu was convicted of driving with excess breath alcohol in the Manukau District Court

[6] On 1 July 2017, Mr Palu was driving on High Street, Motueka, when he was stopped by police. He exhibited signs of recent alcohol intake and was required to undergo a breath screening test for alcohol. He refused, and was then required to accompany the officer to the Motueka Police Station for an evidential breath test. At the station, Mr Palu refused to undergo the breath test. Police then requested a sample of blood for analysis, which was also refused. He was sentenced to home detention with special conditions and was disqualified from driving indefinitely.

[7] On 10 February 2018, only a few weeks into his sentence for the latest offending, Mr Palu was discovered drinking alcohol at a friend’s house, in breach of the conditions of his home detention. Mr Palu had been involved in a dispute with his wife. When questioned by Police, Mr Palu admitted…

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.

Continue reading Palu v Police

Details

AGLC: Palu v Police [2018] NZHC 758
Case: [2018] NZHC 758
Decision Date: 20 April 2018

CaseChat Overview and Summary

In Palu v Police, the High Court allowed an appeal against sentence by Mr Palu, who had been re-sentenced to six months’ imprisonment for driving while disqualified and refusing a blood specimen. Mr Palu was also sentenced to one month’s imprisonment for breaching home detention. He appealed the six-month imprisonment term on the basis that it was manifestly excessive. The Crown opposed the appeal, arguing that the sentence was well within the acceptable range. The Court considered whether the sentence imposed was manifestly excessive and whether a different sentence should be imposed. The Court found that the re-sentencing Judge had not properly considered the mitigating factors and had erred in imposing a sentence of six months’ imprisonment without making a deduction for Mr Palu’s guilty pleas or personal circumstances. The Court held that a sentence of four months’ imprisonment was appropriate, with the same post-release conditions and special release conditions as imposed by the original sentencing Judge. The Court also directed that Mr Palu attend the Nelson Probation Centre, to be assessed and undertake drug and alcohol counselling at the earliest opportunity. The appeal was allowed, and the sentence of six months’ imprisonment was quashed and replaced with a sentence of four months’ imprisonment.

Orders