Potaka v Police HC Wanganui CRI 2009-483-14

[2010] NZHC 1007

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2009-483-14

BETWEEN  OLIVIA MAKARETA POTAKA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 March 2010

Counsel:         D Goodlet for Appellant

J M Woodcock for Respondent

Judgment:      31 March 2010

ORAL JUDGMENT OF MILLER J

[1]      Ms Potaka appeals against a sentence of 18 months imprisonment while driving while disqualified and driving with excess blood alcohol.   It was her fifth offence of driving with excess alcohol and her fifth of driving while disqualified.

[2]      The facts are that on 1 August 2009, at about 3.15am, she was seen driving a car at about 30 kilometres per hour.  She was stopped and a blood test revealed a level of 195 milligrams of alcohol per 100 millilitres of blood.

[3]      This offending occurred while Ms Potaka was subject to release conditions for the same type of offending.  Her most recent offence had been in January 2009, when she was sentenced to imprisonment.

[4]      I observe that Ms Potaka has many convictions.   Relevantly there are a number for other driving offences, such as failing to stop and dangerous driving, and

OLIVIA MAKARETA POTAKA V NEW ZEALAND POLICE HC WANG CRI 2009-483-14  31 March 2010

a number of convictions for breach of community-based sentences or Court orders, including failure to answer bail.

[5]      Reviewing the facts and Ms Potaka’s history, the Judge acknowledged that she had a disastrous childhood.  However, the dominant sentencing considerations in this case were denunciation, accountability, and protection of the public.  He adopted a starting point, having regard to the high blood alcohol level, of 12 months imprisonment.   Observing that she was driving while disqualified and subject to release conditions, he added an uplift of 12 months, taking her to two years imprisonment.

[6]      The Judge noted no mitigating factors apart from the guilty plea.  He rejected the submission that she pleaded at a reasonably early opportunity;   she made five appearances before entering a plea and then the plea was not guilty to one of the charges.   She subsequently breached her bail and in due course entered pleas of guilty.   An allowance of approximately 15 per cent was made, resulting in the sentence of 18 months imprisonment.

[7]      So far as home detention was concerned, the Judge observed that she had demonstrated no regard for her obligations and he was satisfied that she would be a very poor candidate indeed for home detention.  On each of the charges, then, she was sentenced to 18 months imprisonment.  She was also disqualified for three years on the driving while disqualified charge from 10 October 2011, and disqualified indefinitely on the drink/driving charge.

[8]      On appeal, Ms Goodlet challenges the size of the uplift and the appropriate categorisation of the offence, having regard to the leading judgment in Clotworthy v New Zealand Police.[1]    She contends that a sentence of 12 months or less would be appropriate.

[1] Clotworthy v New Zealand Police (2003) 20 CRNZ 439 (HC).

[9]      The police accept that the sentence was manifestly excessive.   A starting point of 15 months was more appropriate, taking into account the previous offences,

and an appropriate discount for her guilty plea was 20 per cent, resulting in a term of

12 months imprisonment.

[10]     In light of the view taken by the police, I will allow the appeal.  I observe that a substantial sentence of imprisonment is appropriate having regard to the high blood/alcohol level, her history of offending, the very recent sentence for the same kind of offending, the fact that she has previously been sentenced to imprisonment, and her unsuitability for community-based sentences.  For myself, I think the Judge was correct to allow only a small discount for the late guilty plea.  I recognise that she is attempting to address her alcoholism, which is to be commended.   But that path has not been sufficiently travelled to warrant a rehabilitative approach to sentencing.

[11]     In the circumstances, however, I will accede to the submissions of counsel and impose a sentence of 12 months imprisonment on both charges.   Recognising that she must address her alcoholism, the standard post-release conditions are imposed, to expire after six months and a special condition is imposed that she undergo  assessment  and  treatment  for  alcoholism  as  directed  by  the  Probation Officer.  The disqualifications remain.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for Respondent