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…

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 R v Paki

Details

AGLC: R v Paki [2021] NZHC 908
Case: [2021] NZHC 908
Decision Date: 27 April 2021

CaseChat Overview and Summary

Alf Oltaches appeals against his 15-month imprisonment sentence for driving with excess breath alcohol on a third or subsequent occasion. The District Court Judge granted him leave under s 80I of the Sentencing Act 2002 to apply for home detention, provided he enrolled in a residential drug and alcohol programme. Mr Oltaches argues that home detention at the address he proposed would have been a more suitable sentence.

The court considered whether the Judge was correct to impose an uplift on account of Mr Oltaches’ previous criminal convictions and whether the Judge erred in declining to impose a sentence of home detention to the proposed address. The court found that the end sentence of 15 months’ imprisonment was open to the Judge, considering the aggravating features of the offending and Mr Oltaches’ past history. The court also noted that the least restrictive outcome necessary to address the safety of the community and to denounce and deter Mr Oltaches’ actions was imprisonment. However, the court clarified that the Judge was not entitled to make it an express condition of a grant of leave that home detention would only be granted to a residential drug and alcohol programme.

The appeal is dismissed. The court found that the Judge's decision to impose imprisonment was appropriate, considering the safety of the community and the need for deterrence. However, the court clarified that the Judge was not entitled to make it an express condition of a grant of leave that home detention would only be granted to a residential drug and alcohol programme.

Orders