Rangitonga v Police

[2014] NZHC 2323

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-024 [2014] NZHC 2323

BETWEEN

ISIAH MANAAKITANGA

RANGITONGA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 September 2014
Counsel:	J C Hannam for appellant B C Sweetman for respondent
Judgment:	24 September 2014

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]      Mr Rangitonga pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent) and one charge of driving while disqualified.  He was sentenced by Judge Roberts in the New Plymouth District Court on 16 September

2014 to six months’ imprisonment and 16 months’ disqualification from driving.  He appealed against the sentence on the basis that community detention coupled with supervision ought to have been imposed.

Facts

[2]      Mr Rangitonga  was  disqualified  from  driving  indefinitely  on  23 January

2008.     On  2 August  2014,  Mr Rangitonga  was  stopped  for  a  minor  traffic infringement.  His breath contained 613 micrograms of alcohol per litre of breath.

[3]      Mr Rangitonga’s relevant previous convictions include:

RANGITONGA v POLICE [2014] NZHC 2323 [24 September 2014]

(b)1 November 2007: driving while disqualified and driving with excess breath alcohol of 559 micrograms of alcohol per litre of breath (sentenced to two months’ imprisonment with special release conditions of indefinite disqualification);

(c)      26 August 2007: excess breath alcohol (sentenced to one month imprisonment);

(d)      30 November 2006: driving while disqualified; and

(e)       11 May 2006: driving with excess breath alcohol.

Pre-sentence report

[4]      The  Probation  Service  Advice  to  the  Court  on  sentencing  noted  that Mr Rangitonga  did  not  minimise  his  offending  behaviour.    It  suggested  that  he appears  to  be  maturing  since  the  recent  death  of  his  father.    Mr Rangitonga  is responsible for his mother’s care, and the care of his two young children during weekends, one of whom is a type one diabetic and requires a high level of care.

[5]      Mr Rangitonga is employed by a civil engineering firm, and that employment is seen as a stabilising factor.   However, he was classified as having a long term pattern of excessive and harmful drinking involving moderate drinking throughout the week followed by heavy drinking sessions on Friday nights.  He has an inability to moderate his use of alcohol and his on-going association with a network of friends who support anti-social behaviour is a barrier to positive change in his life.  He was seen as having some insight into the impact of his drinking.  His risk of re-offending, risk of causing harm and motivation to address alcohol problems were all assessed as moderate.

[6]      The report writer did not recommend home detention because of concerns regarding Mr Rangitonga’s inability to abstain from alcohol and the impact of home detention  on  his  family.    Police  records  show  three  family  violence  call-outs

involving Mr Rangitonga.   Two of these involve his ex-partner and one his late father.   The report noted that an electronically monitored sentence could place increased stress on him and his household.   Community detention was not recommended because it would not remove Mr Rangitonga from high risk situations. Instead, the report suggested community work and supervision, or alternatively a short term of imprisonment followed by appropriate release conditions.

[7]      The report writer noted that Mr Rangitonga is available for community work but that his past performance of community work had been “patchy”.

[8]      The appeal was brought on at short notice, and no updating advice was available from the Probation Service.

Evidence before the Court

[9]      A letter from Ms Johnson of Mental Health and Addiction Service dated

9 September   2014   confirmed   that   Mr Rangitonga   has   requested   individual counselling to address problematic alcohol use.

[10]     An undated letter from Mr Rangitonga’s employer stated that he had been employed with the company since 2007.  The letter was before Judge Roberts.   It described Mr Rangitonga as a very capable worker, punctual, dedicated and a team player.  The employer stated that he had always been impressed by Mr Rangitonga’s attempts to separate his private life from his work, and that the company is prepared to  offer  on-going  support  to  Mr Rangitonga  in  the  form  of  re-employment  and training.

District Court decision

[11]     Judge Roberts considered that community work and supervision would not adequately  address  Mr Rangitonga’s  offending.     Judge  Roberts  identified  the following aggravating factors:

(a)       It is Mr Rangitonga’s fourth conviction for drink driving;

(c)       the proximity of last relevant convictions; and

(d)      a view that Mr Rangitonga is undeterred and has continued to offend. [12]    Judge Roberts adopted a starting point of eight months’ imprisonment, which

was reduced to six months to take account of Mr Rangitonga’s guilty pleas.

Standard on appeal

[13]     The  decision  not  to  impose  home  detention  involves  the  exercise  of discretion.   Therefore the question is whether Judge Roberts applied an incorrect principle, failed to take into account a relevant factor or took into account an irrelevant one, or was plainly wrong.1

Submissions

[14]     For Mr Rangitonga, Mr Hannam submitted that the decision to impose a sentence  of  imprisonment  rather  than  a  community-based  sentence  was  plainly wrong.    He  urged  that  a  rehabilitative  sentence  would  allow  Mr Rangitonga  to respond to a structured programme of assistance and that he has not had such a sentence previously.

[15]     Mr Hannam submitted that, although Mr Rangitonga has eight convictions for driving related offending, five of these occurred in an 18 month period when he was aged between 18 and 19.   Mr Hannam argued that Mr Rangitonga’s breath alcohol levels do not indicate an established drinking habit.

[16]     Mr Hannam referred to and relied upon Afamasaga v Police as an example of a successful appeal against refusal to grant home detention for a fifth drink driving

conviction.2

1      James v R [2010] NZCA 206 at [17].

2      Afamasaga v Police [2013] NZHC 2763.

[17]     In submissions for the respondent, Ms Sweetman argued that an offender in Mr Rangitonga’s position could not expect there to be a uniform progression up the hierarchy of sentences, as he was convicted on successive occasions for the same type of offending.  Although that might occur, all things being equal a sentencing decision such as the present could not be criticised because it did not reflect an orderly progression.

[18]     Ms Sweetman defended the Judge’s approach to a rehabilitative sentence and argued that as the number of convictions for offending such as drink driving increased, the offender would have to expect that the court’s confidence that the offender would respond positively to a rehabilitative sentence must decrease.  She did not accept that the decision in Afamasaga was an appropriate analogy.  In that case, a review of the merits as matters had been presented to the sentencing Judge would not have justified the successful appeal, which was instead dependent on new evidence that had not been before the sentencing Judge.

[19]     Ms Sweetman questioned the weight that could be given to Mr Hannam’s point that the bulk of Mr Rangitonga’s drink driving offending had occurred in a “spree” when he was relatively young.   She submitted that, however concentrated the convictions were in time, the reality is that at the age of 26, Mr Rangitonga has four convictions which justified the Judge’s concern that he has not learnt to refrain from such conduct as a result of the earlier convictions.

Analysis

[20]     I am not satisfied that the standard for a successful appeal has been met.  The point  that  Mr Rangitonga  has  not  received  a  rehabilitative  sentence  may  have provided  grounds  for  a  sentence  of  home  detention  or  community  detention. However, because of the nature of his drinking patterns and his living situation, he was  assessed  as  unsuitable  for  both  of  these  sentences.    The  submission  that Mr Rangitonga does not have an established drinking habit is inconsistent with the assessment in the pre-sentence report.   In the context of such repeat offending, I agree with the sentencing Judge that a sentence of community work and supervision

would  be  insufficient  to  properly  denounce  Mr Rangitonga’s  persistent  driving offending and to deter others.

[21]     Afamasaga does not assist Mr Rangitonga.  Mr Afamasaga was convicted of driving with excess blood alcohol and dangerous driving and sentenced to seven months’ imprisonment.   He had two relevant convictions arising from an incident seven years previously.  A report from MidCentral Health assessed Mr Afamasaga as having insight and commitment and was optimistic about further treatment.  He had been assessed as suitable for home detention.

[22]     In Afamasaga, Simon France J referred to the decision of Whata J in Carran v Police, in which the High Court substituted a sentence of seven months’ imprisonment with one of six months’ community detention.3    Mr Carran’s reading was 1266 micrograms  of alcohol per litre of breath and  his previous  offending occurred 10 and 20 years previously.

[23]     In both of those decisions there was a considerable period of time between the latest offending and previous offending.  Mr Afamasaga was assessed as suitable for home detention and Mr Carran suitable for community detention.  In the present case,  Mr Rangitonga’s  most  recent  offending  occurred  in  late 2011  and  he  was assessed as unsuitable for both home and community detention.

Conclusion

[24]     Accordingly, the appeal against sentence is dismissed.

Dobson J

Solicitors:

Hannam & Co, New Plymouth for appellant

Crown Solicitor, New Plymouth for respondent

3      Carran v Police [2013] NZHC 1450.