Raman v Police
[2016] NZHC 1368
•22 June 2016
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CRI-2016-419-000026
[2016] NZHC 1368
BETWEEN KAYLASH KANNAN RAMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 June 2016 Appearances:
M McLeod for the Appellant S Gilbert for the Respondent
Judgment:
22 June 2016
JUDGMENT OF WOOLFORD J
Counsel: Mrs M McLeod, Barrister, Hamilton Solicitors: Almao Douch (Crown Solicitor), Hamilton
RAMAN v POLICE [2016] NZHC 1368 [22 June 2016]
Introduction
[1]On 16 February 2016, Kaylash Kannan Raman pleaded guilty to two charges
– one of driving a motor vehicle while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, he having been convicted at least twice previously of a similar offence, and one of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, he having been convicted at least twice previously of a similar offence.
[2] On 28 April 2016 he was sentenced to a total of 12 months imprisonment and disqualified from holding or obtaining a driver’s licence for two years. He now appeals against sentence on the basis that he should have been sentenced to home detention and intensive supervision.
District Court decision
[3] At the outset of his decision, Judge RLB Spear noted that Mr Raman had been stopped by the Police while driving his sister’s car on Anglesea Street, Hamilton, at 1:51 a.m. on Sunday, 3 January 2016. He was at the time a disqualified driver. He acknowledged drinking before driving and was required to undergo breath alcohol testing. When tested, his blood alcohol level was found to be 101 micrograms of alcohol per 100 millilitres of blood.
[4] For the purpose of sentencing, the Judge put to one side Mr Raman’s first drink-driving charge in 1998, because he was under 20 years of age. The Judge then noted that this nevertheless was Mr Raman’s sixth conviction for drink-driving. He listed Mr Raman’s five previous convictions as follows:
(a)2004 – 611 micrograms of alcohol per litre of breath;
(b)2006 – 566 micrograms of alcohol per litre of breath;
(c)2008 – 629 micrograms of alcohol per litre of breath;
(d)2009 – 526 micrograms of alcohol per litre of breath; and
(e)2011 – 603 micrograms of alcohol per litre of breath.
[5] In respect of the third conviction in 2008, Mr Raman was sentenced to 130 hours community work and nine months supervision. For the fourth conviction in 2009, he was sentenced to six months community detention and 18 months intensive supervision. In addition, he was given a final warning. Then when the fifth conviction was entered in 2011, Mr Raman was sentenced to 11 months imprisonment. At the same time he was sentenced to a concurrent sentence of two months imprisonment for breaching the sentence of intensive supervision imposed on his fourth conviction.
[6] The Judge noted that Mr Raman’s last conviction was in 2012, when he was indefinitely disqualified and sentenced to four months community detention for disqualified driving.
[7] The Judge then turned to the pre-sentence report, which assessed Mr Raman as being at high risk of reoffending based on his blatant disregard for the consequences of his offending and at medium risk of harm to others due to the nature and frequency of his offending. Notwithstanding that, the pre-sentence report recommended supervision, community detention and community work, largely because Mr Raman had found good continuing employment as a fabricator/welder.
[8] The Judge then recorded the submission of Mr Raman’s counsel that he should impose the sentences recommended to enable him to have another chance to attend alcohol counselling through Care New Zealand, but the Judge said that his concern was not for Mr Raman, but for the community. He said:
[9] …There comes a time in the career of each repeat drink-driver when their personal circumstances cannot be taken into account and the dominant purposes of sentencing must be the safety of the community. You have shown a complete inability to conduct yourself in a way that keeps the community safe. You continue to drink and drive and that is the real concern that I have to focus upon here. That even with the intensive supervision sentence that was imposed on you in 2010, within a year you were driving again after having been drinking and that is why you got a sentence of imprisonment.
[9] The Judge then set an end starting point of 18 months imprisonment. Although the Judge recognised that Mr Raman was prepared to go to counselling, he said that a real question mark was raised in his mind as to whether the only motivation that caused him to attend Care New Zealand was because he was concerned about going back to prison. The Judge said that he did not consider he could fulfil his duty to the community by allowing a repeat drink-driver such as Mr Raman to have their personal circumstances brought to the fore. He regretted having to do so because it looked as if Mr Raman was close to getting permanent work. He said, however, that Mr Raman needed to understand very, very clearly that drink-drivers had to learn that they must stop drinking and driving. According to the Judge, Mr Raman had not learnt that lesson. He had had plenty of opportunities afforded to him and it was for this reason that the Judge said he was “unable to stop short of a sentence of imprisonment”.
[10] The Judge, therefore, sentenced Mr Raman to 12 months imprisonment on the charge of drink-driving and a concurrent sentence of six months imprisonment on the charge of disqualified driving. He was also disqualified from driving for two years.
Grounds of appeal
[11] The grounds of appeal are stated by Mrs McLeod in her written submissions as:
(a)The Judge failed to consider the imposition of home detention as an alternative sentence; and
(b)The Judge failed to place weight on the rehabilitative steps taken by the appellant; and
(c)The Judge failed to take into account the appellant’s intention to attend a rehabilitation programme as recommended by Care New Zealand.
[12] Mrs McLeod developed the first ground of appeal in oral submissions. She submitted that Judge Spear had failed to comply with s 31 of the Sentencing Act 2002, which requires a Court to give reasons for the imposition of a sentence or for any other means of dealing with an offender. Mrs McLeod submitted that Judge Spear was in breach of s 31 because he had failed to give reasons why he did not consider home detention as an available option in this case.
[13] Mrs McLeod submitted that this Court should quash the sentence of 12 months imprisonment and impose a sentence consistent with the least restrictive outcome, which in the circumstances would be a sentence of home detention coupled with intensive supervision to support his rehabilitation programme. Counsel submitted rehabilitation is an important part of the sentencing regime and the ultimate outcome of rehabilitation is a safer community.
Discussion
[14] Mr Raman has a right of appeal against sentence pursuant to s 244 of the Criminal Procedure Act 2011. Section 250 sets out how a first appeal court must determine a sentence appeal. It provides that a first appeal court must allow an appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. The first appeal court must dismiss the appeal in any other case. It is, therefore, not a matter for me substituting my view of an appropriate sentence for that of the District Court Judge. I cannot disturb the sentence unless I conclude that there is an error in the sentence imposed.
[15] Section 15A(1) of the Sentencing Act 2002 allows a Court to impose a sentence of home detention only if the Court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences and the Court would otherwise sentence the offender to a short-term sentence of imprisonment. Having determined that the appropriate sentence was 12 months imprisonment, Judge Spear therefore had the ability to commute the sentence to one of home detention. He chose not to do so.
[16] The choice between a short sentence of imprisonment and home detention is the exercise of a fettered discretion.1 In exercising that discretion, the purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing Judge.2
[17] In this case, Judge Spear focussed on individual and general deterrence. Although another Judge may have given more weight to rehabilitation, I am of the view that Judge Spear was not in error in giving prominence to the principles of deterrence.3
[18] Mrs McLeod referred to the statement in the pre-sentence report that Mr Raman’s ability to comply with community-based sentences is assessed as good and Mr Raman’s statement that he was willing to attend departmental programmes. Mr Raman had attended Care New Zealand and had been assessed as suitable to attend an intensive out-patient programme and was waiting to get into that programme. Counsel submitted that it is evident from the pre-sentence report that Mr Raman wanted to rehabilitate. With respect, the pre-sentence report seems to have been quite equivocal on the point. In considering his attitude to the offending, the pre-sentence report stated as follows:
In discussion of the offending, Mr Raman did not agree with the Police Summary of Facts with regards to how much alcohol he had consumed that evening. He also attempted to blame other people and stress why the offending had occurred. However, through further questioning it was revealed that Mr Raman did not know why he chose to drive. He further explained that he has not owned a vehicle for about six years, yet in that time Mr Raman has been convicted of five driving related offences. On this occasion Mr Raman had used his sister’s vehicle, without her permission, thinking that he was capable of driving.
Mr Raman’s attitude towards his offending appeared somewhat nonchalant. Although, he stated that he felt embarrassed that he was in this situation again. A special condition to attend an assessment for a Departmental Short Motivational Programme (SMP), and attend should he be found suitable, has been included to address his offending related factor of attitudes.
1 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
2 At [34].
3 See for example the comment of the Court of Appeal in McConnel v R [2013] NZCA 303 at [15] that the weight a Judge attached to a particular factor is not a basis to challenge the exercise of the discretion.
[19] It is also evident from Mr Raman’s history that previous rehabilitive attempts have been unsuccessful. In 2008 he was sentenced to nine months supervision. In 2009 he was sentenced to 18 months intensive supervision. Both of these sentences were clearly aimed at Mr Raman’s rehabilitation. They were unsuccessful and, in fact, Mr Raman was sentenced to two months imprisonment in 2011 for breaching the conditions of the intensive supervision sentence imposed on his fourth conviction for drink-driving.
[20] As to Mrs McLeod’s particular submission in relation to s 31 of the Sentencing Act, I am of the view that Judge Spear was not in breach of the general requirement to give reasons. As noted in s 31(2), reasons may be given with whatever level of particularity is appropriate to the particular case.
[21] In the present case, Judge Spear referred to his inability to stop short of a sentence of imprisonment. By that comment, I infer that Judge Spear was referring to home detention and other lesser sentences. It is also important to look at the Judge’s comments overall. I am of the view that looked at overall Judge Spear made it quite plain that he did consider other sentences, although he did not specifically refer to the availability of home detention.
Result
[22] Accordingly, I am of the view that Judge Spear did not fail to consider the imposition of home detention as an alternative sentence, but clearly considered that imprisonment was the only realistic sentence. He was not in error in doing so in the circumstances of this case. The appeal is dismissed.
……………………………….
Woolford J