Pillay v Police
[2018] NZHC 399
•12 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000437
[2018] NZHC 399
BETWEEN PRANCIS PILLAY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 March 2017 Appearances:
S Kilian for the Appellant
K Tuialii for the Respondent
Judgment:
12 March 2017
JUDGMENT OF WOOLFORD J
Solicitors/Counsel:
Mr Kilian, Auckland
Kayes Fletcher Walker, Manukau
PILLAY v POLICE [2018] NZHC 399 [12 March 2017]
Introduction
[1] On 23 May 2017, Prancis Pillay was sentenced to 12 months home detention on two charges of driving with excess breath alcohol (third or subsequent) and two charges of disqualified driving (third or subsequent).
[2] On 20 September 2017 the Department of Corrections applied to the District Court to cancel the sentence of home detention and substitute it with a sentence of imprisonment on the basis of a number of breaches of the conditions of the sentence by Mr Pillay and the withdrawal of consent by Mr Pillay’s wife to him serving the remainder of his sentence at the family home. The Police also laid a charge against Mr Pillay of breaching the conditions of his home detention sentence to which Mr Pillay pleaded guilty.
[3] On 9 November 2017, Judge Hikaka granted the application by the Department of Corrections to cancel the sentence of home detention and resentenced Mr Pillay to 16 months imprisonment on the charges in respect of which he had earlier been sentenced to home detention. Judge Hikaka also convicted and sentenced Mr Pillay to a concurrent sentence of one month’s imprisonment on a charge of breaching the conditions of the home detention sentence.
[4] Mr Pillay now appeals against sentence on the basis that Judge Hikaka was wrong to sentence him to 16 months imprisonment. He says that he should have been resentenced to a further term of home detention or a sentence of community detention, as well as intensive supervision.
Factual background
[5] Mr Pillay has an unenviable criminal record. He has nine convictions for drink driving over an 11 year period between 2005 and 2016. He was sentenced to a year’s imprisonment upon conviction for two charges of drink driving in 2014. Over the same period he has received nine convictions for disqualified driving. Then he has convictions for breach of community work, breach of the conditions of community detention, breach of the conditions of supervision, breach of court release conditions
from prison and breach of home detention over an eight year period between 2009 and 2017.
[6] When he was sentenced to 12 months home detention on 23 May 2017, Judge Bergseng commented:1
The reality is, Mr Pillay, you are an absolute menace on the road. You are someone who should not be driving. You have got young children in Court here and you have an obligation to look after them. You have left your wife in an awkward position, an almost impossible position. You are a chronic alcoholic. The only good thing that I can see so far is that you have finally recognised that you have an alcohol issue, although there was some reticence in the probation report as to just whether or not you truly acknowledge your need for ongoing assistance.
[7] Judge Bergseng said the only thing that stopped him from going to prison that day was Mr Pillay’s ongoing rehabilitation.
[8] However, having been sentenced to 12 months home detention on 23 May 2017, on 16 August 2017 Mr Pillay was arrested by the Police on a charge of breaching his home detention conditions by consuming alcohol. He was sentenced to 80 hours community work on 31 August 2017. Then on 19 September 2017, Mr Pillay removed his electronic bracelet and departed from the home detention address in the family vehicle. Mr Pillay was located the next day and admitted consuming alcohol again. He was then arrested and charged with breaching the conditions of his home detention sentence. The Department of Corrections also applied to cancel the sentence of home detention both on the basis of the breaches and also on the basis that Mr Pillay’s wife had withdrawn her consent for him to serve the remainder of his home detention sentence at the family home.
District Court decision
[9] At the outset of his sentencing notes, Judge Hikaka noted the opposition to cancellation of the sentence of home detention on the basis that Mr Pillay was now willing to accept assistance for his problems with alcohol and his wife’s and mother’s support for him. He noted that in spite of an earlier indication that Mr Pillay’s wife would not consent to allowing him to serve the remainder of his home detention
1 New Zealand Police v Pillay [2017] NZDC 10707 at [9].
sentence at the family home, she had now changed her mind and was willing to have him back.
[10] Judge Hikaka then referred to the sentencing notes of Judge Bergseng on 23 May 2017 and noted Judge Bergseng’s comment that it was by a fine margin that Mr Pillay did not go to prison for a long period of time on that day.
[11] Judge Hikaka referred to Mr Pillay’s explanation for the offending, namely that he was upset about not being able to travel to Fiji where his wife’s grandfather was ill when his brother-in-law came to his home with a bottle of rum. Mr Pillay could not deal with his wife telling him not to drink, so he left the family home and continued to drink, having removed his electronic bracelet. Judge Hikaka said he would impose the least restrictive sentence appropriate in the circumstances, which was more with respect to the time Mr Pillay would serve in prison because he did not think a sentence less restrictive than imprisonment was appropriate in all the circumstances. He was of the view that a sentence other than imprisonment would not serve to promote the purposes or principles of the Sentencing Act.
[12] Judge Hikaka took into account that 12 months home detention was the equivalent of 24 months imprisonment. Mr Pillay had served four months home detention, which therefore equated with eight months imprisonment. That brought the total of unserved time, represented as a prison sentence, to 16 months. The Judge therefore cancelled the sentence of home detention and sentenced Mr Pillay to 16 months imprisonment.
Appellant’s submissions
[13] Counsel for Mr Pillay submits that a sentence of home detention, together with a sentence of intensive supervision, would have been better suited to meet the on- going rehabilitative needs of Mr Pillay. He says that prior to this offending Mr Pillay was attempting to make changes in his life. The pre-sentence report notes that Mr Pillay had completed a one day impaired driving course on 8 August 2017 and was also attending a weekly wellness recovery action plan programme managed by CareNZ at the time of his offending. The pre-sentence report also recorded Mr Pillay’s advice that he had completed a two month residential programme followed by a Bridge
programme managed by the Salvation Army. The pre-sentence report went on to comment, however, that despite these rehabilitative interventions to address his alcohol abuse, Mr Pillay continued to make poor decisions.
[14] Counsel referred to the Court of Appeal decision in Manikpersadh v R in which the Court noted the discretion whether to commute a sentence of imprisonment to home detention.2 Relevant factors in the exercise of the discretion included an assessment of the seriousness of the offending, the principles and purposes of sentencing, which include having regard to accountability, denunciation, and deterrence, consideration of the least restrictive sentence, the offender’s personal circumstances, and the defendant’s rehabilitative needs.
[15] There is no presumption either way as to imprisonment or home detention, but the lower the prison sentence in relation to the two year maximum, the more likely home detention will be appropriate.
[16] Counsel further submits that courses within prison are limited, and Mr Pillay has already completed the Alcohol and other Drug Brief Support programme. Counsel emphasises the support available to him in the community, including his family and submits that a sentence of home detention would better suit his rehabilitative needs.
[17] I have today been handed a letter from Mr Pillay, written in prison, in which he expresses remorse. I have also been provided with an email from Mr Pillay’s wife, in which she asks for her husband to return home as life has not been easy without his help with the family.
Discussion
[18] Having carefully considered submissions of counsel, I am, however, of the view that there was no error made by Judge Hikaka in imposing a sentence of imprisonment. As noted by the Court of Appeal in James v R, the task of an appellate court is not to “revisit or review the merits” of a decision declining home detention, but to consider whether there has been an error in the exercise of the Judge’s discretion
2 Manikpersadh v R [2011] NZCA 452.
not to impose home detention.3 I am of the view that Judge Hikaka was entitled to refuse to resentence Mr Pillay to home detention.
[19] While Judge Hikaka accepted that Mr Pillay was now prepared to seek assistance for his problems with alcohol, and had the support of his family, he noted the lenient approach Judge Bergseng took in the sentencing on 23 May 2017 and commented that Mr Pillay was afforded a very good rehabilitative opportunity, which he had not taken advantage of.
[20] Mr Pillay was unable to comply with a sentence of home detention, which was specifically imposed for rehabilitative purposes on two occasions over the period of four months. For myself, I do not have any confidence that Mr Pillay will abide by the conditions of any sentence such as home detention given his history of previous failures to abide by Court imposed conditions. I am of the view that a heightened response by the Court was available for the purposes of denunciation and deterrence and Judge Hikaka did not err when he found that the least restrictive outcome must be one of imprisonment.
[21]The appeal is dismissed.
Woolford J
3 James v R [2010] NZCA 206 (2010) 24 NZTC 24,271.
0