Pillay v Police - [2018] NZHC 399

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…

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 Pillay v Police

Details

AGLC: Pillay v Police [2018] NZHC 399
Case: [2018] NZHC 399
Decision Date: 12 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Prancis Pillay appealed against the decision of the District Court to substitute his sentence of home detention with a sentence of imprisonment. The appellant, Mr Pillay, had been sentenced to 12 months of home detention for driving with excess breath alcohol and disqualified driving, but breached the terms of his sentence by consuming alcohol and removing his electronic monitoring bracelet. The Department of Corrections and the Police subsequently applied to the District Court to cancel the home detention sentence. The District Court granted the application, resentencing Mr Pillay to 16 months imprisonment, and also convicted him of breaching the conditions of his home detention sentence, imposing a concurrent sentence of one month's imprisonment.

The appeal raised the issue of whether the District Court erred in substituting the appellant's home detention sentence with a sentence of imprisonment. Mr Pillay argued that he should have been resentenced to a further term of home detention or a sentence of community detention, as well as intensive supervision. The Court considered the submissions of counsel and the appellant's history of non-compliance with court-imposed conditions, and concluded that the District Court was entitled to refuse to resentence Mr Pillay to home detention. The Court found that Mr Pillay had not taken advantage of the rehabilitative opportunity afforded to him and that a heightened response by the Court was available for the purposes of denunciation and deterrence.

The appeal was dismissed, and the sentence of the District Court was upheld. The Court found that the District Court did not err in the exercise of its discretion in substituting the appellant's home detention sentence with a sentence of imprisonment. The Court emphasised that 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 not to impose home detention. In this case, the Court found that there was no such error.

Orders