R v Paki

[2021] NZHC 908

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000108

[2021] NZHC 908

BETWEEN

ALF ULFSBY OLTACHES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 April 2021
Appearances:	E Butler and S Su’a for Appellant T Riley for Respondent
Judgment:	27 April 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           Public Defence Service, Manukau

Kayes Fletcher Walker Ltd, Manukau

OLTACHES v NEW ZEALAND POLICE [2021] NZHC 908 [27 April 2021]

[1]    Alf Oltaches pleaded guilty to driving with excess breath alcohol on a third or subsequent occasion. Judge T V Clark sentenced him to 15 months’ imprisonment but granted him leave under s 80I of the Sentencing Act 2002 to apply for home detention.1 The Judge stated “the only way that that will happen is if you apply to be released into a residential drug and alcohol programme.” 2

[2]    Mr Oltaches appeals the decision. He submits the proper sentence was home detention to the address he had proposed.

[3]    In the early hours of the morning on 20 July 2020 Mr Oltaches was driving a Toyota car on Magic Way in Randwick Park. He was seen by the Police to turn right through a red light from Alfriston Road onto Magic Way.  When stopped by the Police he showed signs of recently consuming alcohol. A breath alcohol sample was taken which showed a reading of 1,326 micrograms of alcohol per litre of breath.

[4]    Mr Oltaches has six previous convictions dating from 1987 for driving with excess breath alcohol. The most recent was 2013. In addition he has convictions for driving whilst disqualified or without a current licence.

[5]    The Judge took a starting point of imprisonment of 18 months for the offending, uplifted that by two months to recognise Mr Oltaches’ previous conviction history and then applied a 25 per cent discount for his guilty plea leading to the end sentence of 15 months’ imprisonment. The Judge then noted:

[13] … I am granting you leave under s 80I of the Sentencing Act 2002 to apply for home detention but the only way that will happen is if you apply to be released into a residential drug and alcohol programme.

[6]    The Judge then imposed the conditions of an alcohol interlock sentence and release conditions.

[7]    In support of the appeal Mr Butler submits the District Court Judge erred in imposing an uplift on account of Mr Oltaches’ previous criminal convictions and the

1      New Zealand Police v Oltaches [2021] NZDC 2648.

2 At [13].

Judge erred in declining to impose a sentence of home detention to the proposed address, that being the least restrictive sentence.

[8]    Mr Butler argued that when the offence charged is a third or subsequent charge it is inherent in the charge that previous convictions are taken into account. When fixing a starting point for drink driving offending previous convictions are considered to determine the gravity of the offending and overall culpability whether implicitly or explicitly.

[9]In Lal v Police this Court observed that:3

… inherent in charges of driving with excess breath alcohol and driving while disqualified in the aggravated forms is that the offending has occurred on three or more occasions. But the number of such further occasions is an aggravating factor.

[10]   From my experience, I have to say I agree with counsel for the respondent, Mr Riley’s submission that, while it is general practice of sentencing judges to take into account an offender’s relevant criminal history when setting the sentence starting point for drink driving offending, the practice is not entirely uniform. It is not mandated either by the legislation or by authority.

[11]   The short point however in the present case is that given the aggravating features of Mr Oltaches’ offending in this case, both the specific instances of this offending and given his past history, a starting point of 20 months was open to the Judge. As noted, while qualifying as a third or subsequent offence, this was in fact Mr Oltaches’ seventh offence of driving with excess breath alcohol. The reading was a significantly high one at 1,326 micrograms. Further, his driving involved driving through a red light and turning right across an intersection. Given his history and the background to this offence, a starting point of 20 months (against a maximum sentence of two years’ imprisonment) was open to the Judge.

[12]   The end sentence of 15 months’ imprisonment could be looked at another way. Even if 18 months had been taken as the starting point, as Mr Butler submits, in light of the evidence available to the Court, namely the observations of the police officers

3      Lal v Police [2017] NZHC 1944 at [20].

and the breath alcohol test, the police case was strong and a full discount of 25 per cent for the guilty plea could perhaps be regarded as overly generous.

[13]   Whichever way it is approached the end sentence of 15 months’ imprisonment was open to the Judge before considering whether home detention was available. I note of course that in Tutakangahau v R the Court of Appeal confirmed the focus of sentence appeals is on the sentence imposed rather than the process by which the sentence was reached.4

[14]   In summary, I do not consider, before addressing the issue of home detention, that the end sentence of 15 months’ imprisonment in this case could be said to be manifestly excessive.

[15]   That leaves the issue of home detention which was the focus of Mr Butler’s submissions. He argued that the least restrictive outcome available to the Court was the sentence of home detention which would have provided Mr Oltaches with the opportunity to engage in rehabilitation. Such opportunity is not available to him in prison. Mr Butler referred to the provisions of s 16 and the observations of the Court of Appeal that imprisonment is a measure of last resort and that offenders should be kept in the community wherever appropriate.5

[16]   While I understand the submission, in Mr Oltaches’ case it has to be observed that he has had several opportunities in the past to address his alcohol issue and also to attend a rehabilitative course to address his offending.

[17]   In declining the proposed home detention address the Judge acknowledged that at the heart of the appellant’s offending was his alcohol abuse, but the Judge was aware that one of Mr Oltaches’ special conditions of release in the past had been that he attend assessment for an alcohol and drug programme in that he was referred to Care NZ. However, he had failed to successfully complete that programme and in fact was exited for non-compliance. Mr Butler emphasised that in other cases appellants had been given second chances and that other conditions could be attached to the home

4      Tutakangahau v R [2014] NZCA 279.

5      Fairbrother v R [2013] NZCA 340 at [23].

detention sentence to provide for Mr Oltaches’ rehabilitative needs. Against that there does come a time when the need for deterrence and the safety of the community must take precedence over the possible rehabilitative needs of the offender. That time has been reached with this appellant.

[18]   An important consideration in determining whether EM bail or a sentence of home detention is appropriate will be the suitability of the proposed address and the support available to the defendant or offender there. The address proposed was Mr Oltaches’ home address, an address he was residing at when the offending occurred. It was open to the Judge to reject that address as unsuitable as it would not provide the support necessary to assist Mr Oltaches to address his alcohol issues.

[19]   There is however one issue with the sentence and the way the Judge expressed it that perhaps should be clarified. Section 80I provides:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[20]   The only qualification the section contemplates is that the proposed residence must be “suitable”. The further qualification the Judge sought to impose as a condition, namely that home detention would only be granted to a residential drug and alcohol programme, however well intentioned, does not appear to be permitted by the legislation.

[21]   It seems to me that it may be a matter of how the point is expressed. I note that in the case of Sands v New Zealand Police this Court granted leave to apply for home

detention should a properly supervised position become available.6 Rather than fixing it as a condition as the District Court Judge sought to do in this case, the Judge could have indicated, when granting leave to apply for home detention, that a suitable residential programme would be looked at favourably, but I do not consider she was entitled to make it an express condition of a grant of leave. Of course, any proposed address that did not enable Mr Oltaches’ specific needs to have been addressed would not be likely to be assessed as suitable.

[22]   In the present case the proposed address did not address his rehabilitative needs and was therefore unsuitable. Unfortunately, in the circumstances, prison remains the least restrictive outcome necessary to address the safety of the community and to denounce and deter Mr Oltaches’ actions.

Result

[23]For the above reasons, the appeal is dismissed.

Venning J

6      Sands v New Zealand Police [2018] NZHC 3048 at [31].