Rata v Police
[2022] NZHC 1736
•20 July 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2022-488-49
[2022] NZHC 1736
BETWEEN MANUEL PATRICK RATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 July 2022 Appearances:
T Luders for Appellant
S-L Litt and E Stolwerk for Crown
Judgment:
20 July 2022
JUDGMENT OF HARVEY J
[on appeal against sentence]
This judgment was delivered by me on 20 July 2022 at 2.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Whangarei WRMK Lawyers, Kerikeri
RATA v NEW ZEALAND POLICE [2022] NZHC 1736 [20 July 2022]
Introduction
[1] Manuel Patrick Rata pleaded guilty to charges of driving with excess breath alcohol, third or subsequent,1 driving while disqualified,2 and breach of release conditions. On 25 May 2022 he was sentenced to 12 months imprisonment by Judge G L Davis in the District Court at Whangārei.3 He now appeals that decision to this Court on the basis that the learned Judge should have sentenced him to home detention.
Background
[2] On 12 March 2021, after conviction on two separate driving with excess breath alcohol charges, Mr Rata was disqualified indefinitely from driving from that date.
[3] Despite that, on 4 December 2021, Mr Rata was stopped by a police patrol car after he was observed driving along Riverside Road in Whangārei. After exhibiting signs of recent alcohol consumption, a breath test confirmed that he had a breath alcohol of 776 micrograms of alcohol per litre of breath. In explanation, after giving police his middle name Patrick, Mr Rata said that he had consumed Nitro energy beers and had driven from Kawakawa. He stated that he held a learner’s drivers’ licence and that he did not think that he was disqualified.
District Court decision
[4] Judge Davis began his sentencing by outlining the offending and noting that Mr Rata had been convicted of drunk driving on four other occasions — on one occasion with 1108 micrograms of alcohol per litre of breath. He summarised that this was, in effect, the fifth time Mr Rata has come before the Court in recent years for driving with excess alcohol.
[5] His Honour confirmed that a pre-sentence report recorded the availability of a Whangārei address for electronic sentence, which updated an earlier report that suggested imprisonment should be imposed. Judge Davis noted that Mr Rata was
1 Land Transport Act 1998, ss 56(1) and 56(4). Maximum penalty two years’ imprisonment or a
$6,000 fine and a minimum one year of disqualification.
2 Land Transport Act 1998, ss 32(1)(a) and 32(3). Maximum penalty three months’ imprisonment or a $4,5000 fine and minimum six months’ disqualification.
3 Police v Rata [2022] NZDC 9646.
asking for an electronic sentence and that, while he agreed with the summary of facts, stated: “If I was impeded, I wouldn’t have driven”.4 Judge Davis pointed out that Mr Rata was indefinitely disqualified and should not have been driving at all. He drove 55 km from Kawakawa to Whangārei with a reading of 776 micrograms of alcohol per litre of breath.5 The Judge commented:
This is all about public safety here. A person who comes before the Court on his sixth excess breath alcohol charge but five of them in four years is looking at imprison[ment].
[6] His Honour considered that a starting point of 16 months’ imprisonment was appropriate. He accepted that Mr Rata was entitled to credit for pleading guilty at an early stage, but that ultimately this was a public safety issue:6
There is nothing that has been presented to me today that suggests that Mr Rata will simply not drive a motor vehicle. In fact, everything suggests the opposite. His comments: “That had I been impeded I would not have driven” belies the fact he was not permitted by law to drive at all, let alone drive with any alcohol on his breath whatsoever.
[7] Weighing up those factors, the Judge concluded that a term of imprisonment was the only available outcome. Judge Davis concluded that he was required to impose a term of imprisonment and, as foreshadowed, sentenced Mr Rata to 12 months’ imprisonment. Inter alia, the indefinite qualification was reimposed.
Approach to appeals against sentence
[8] Under s 250(2) of the Criminal Procedure Act 2011, the Court will allow an appeal only if it is satisfied that there is an error in the sentence, and that a different sentence should be imposed.7 In any other case, the appeal must be dismissed.8 In addition, on appeal to this Court, a sentence must be shown to be “manifestly excessive”.9 An appellate court will not intervene when the sentence is within the range set according to sentencing principles.10 Whether the sentence is “manifestly
4 Police v Rata, above n 3, at [9].
5 At [10]
6 At [13].
7 Criminal Procedure Act 2011, s 250(2).
8 Section 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
10 At [36].
excessive” is assessed by reference to the final sentence, rather than the process by which that sentence is reached.
[9]As the Court of Appeal observed in Ripia v R:11
[This] Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.
[10] Then in Palmer v R, the Court of Appeal confirmed that the standard of appellate review adopted in Tutakangahau applies equally to decisions not to commute imprisonment to a lesser sentence as it does to any other sentence:12
[There] is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
(footnotes omitted)
Appellant’s submissions
[11] Mr Luders, for Mr Rata, confirmed that no issue was taken with the starting point or discounts but rather that the Judge erred in not commuting the sentence to home detention. He referred to the Court of Appeal’s decision R v Iosefa which highlighted the importance of the 2007 amendments to the Sentencing Act 2002:13
[41] The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment. It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment. In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of
11 Ripia v R [2011] NZCA 101 at [l5].
12 Palmer v R [2016] NZCA 541 at [18]–[19].
13 R v Iosefa [2008] NZCA 453 at [41].
imprisonment usually will be required to reflect the purposes of denunciation and deterrence.
[12] Counsel contended that Judge Davis’ sentencing notes highlighted the primacy of public safety. Denunciation and deterrence can also be inferred as primary considerations. Mr Luders argued that a sentence of home detention could equally meet the purposes of public safety, denunciation and deterrence that the sentence of imprisonment was imposed to achieve, as set out in Iosefa. He highlighted that Mr Rata has not previously been subject to home detention and that such a sentence would both give effect to the purposes of denunciation, deterrence and public safety, and also meet the objective of assisting in rehabilitation, reintegration and to promote a sense of responsibility.
[13] In addition, Mr Luders submitted that home detention would enable Mr Rata to engage in the “Drive Sober” programme through the Northland District Health Board, which he is motivated to engage with. Counsel also noted that Mr Rata resides with his mother and three children, but that he had primary responsibility for their care. Imprisonment will place a further burden on his mother and deprive his children of their father, according to counsel. For those reasons, Mr Luders submitted that a sentence of imprisonment was manifestly excessive, and that home detention was the least restrictive outcome which should be substituted.
[14] In reply to Crown counsel’s submissions, Mr Luders pointed out that the “false name” given by Mr Rata was in fact his middle name and that which he was more commonly known by. There was, he argued, no nefarious connotation to this, as recorded by Crown counsel and the Judge himself. Further, Mr Luders argued that imprisonment need not be the only sentence, given that Mr Rata had been imprisoned before and with effectively little deterrent value. Instead, counsel submitted that a sentence which would enable Mr Rata to properly engage with a suitable alcohol addiction and driving programme would be more appropriate in the circumstances.
[15] In response to my questions, Mr Luders confirmed that Mr Rata had been involved in family harm incidents and acknowledged that some had occurred at the proposed address. However, he pointed out that as they involved Mr Rata’s father, who had now moved out of that address, it had been accepted now as suitable for home
detention purposes. Mr Luders accepted that Mr Rata could have engaged in alcohol dependency treatment programmes before now, while submitting that only recently had the funding and therefore the availability for such treatment improved. Counsel also accepted that Mr Rata’s insights into his offending were not necessarily as obvious as they should be but that with the support of the DHB-led programme, his rehabilitation and therefore community safety could be enhanced.
Respondent’s submissions
[16] Ms Litt submitted that the end sentence imposed by Judge Davis was not manifestly excessive, and that imprisonment was within range for a recidivist drink driver. Mr Rata’s previous demonstrable lack of compliance and inability to be deterred by non-custodial sentences resulted in the only appropriate sentence — imprisonment.
[17] Crown counsel emphasised that Judge Davis took account of Mr Rata’s significant conviction history for driving with excess breath alcohol, of up to 1,108 micrograms of alcohol per litre of breath on one occasion, which has resulted in six months’ imprisonment, 120 hours’ community work and six months’ supervision. Moreover, counsel submitted that the Judge considered that the offending was undertaken while the driver was disqualified and in breach of release conditions, and the pre-sentence report writer recorded that Mr Rata lacked insight into or remorse for his offending. Notwithstanding that he was willing to engage with a sober driving programme, his attitude minimised the potential harm he could cause by drink driving.
[18] Overall, Ms Litt emphasised that the Judge did not err, and that a term of imprisonment was an appropriate outcome. Counsel relied on Kata v Police as an analogous case in which the appellant unsuccessfully appealed against a sentence of six months imprisonment for driving with excess breath alcohol.14 The High Court found that the defendant had had community-based sentences before, and that they did not have any deterrent effect. On that basis, counsel argued that the sentence of six months’ imprisonment could not be considered manifestly excessive. While this case is more serious, Ms Litt contended that the same principles apply.
14 Kata v Police HC Whanganui CRI-2010-483-68, 26 January 2011.
[19] In summary, counsel submitted that a sentence of imprisonment is the only available option to effectively deter Mr Rata from further offending. In addition, Ms Litt argued that although the address proposed for electronic monitoring is “technically suitable”, Mr Rata has been subject to 36 family harm occurrences between November 2008 and January 2022, the most recent of which in January of this year involved the proposed sponsor of the address. Further, Ms Litt contended that the Judge would have considered the fact that Mr Rata’s time in prison will deprive his children of a father temporarily but made the decision regardless. Mr Rata will be subject to release conditions to provide for his reintegration and rehabilitation into the community, thus meeting the need for sentencing to assist in his reintegration into the community.
Discussion
[20] Mr Rata’s history of drunk driving offending and sentences presents a pattern of concerning behaviour that does not appear to be slowing:15
(a)Six months’ imprisonment (with standard and special release conditions) for driving with excess breath alcohol (3rd or subsequent) on 15 December 2020 with an alcohol level of 1,108 micrograms of alcohol per litre of breath.
(b)Four months’ imprisonment (concurrent with the above) for driving with excess breath alcohol (3rd or subsequent) on 7 May 2020 with an alcohol level of 738 micrograms of alcohol per litre of breath.
(c)Six months’ imprisonment (concurrent with the above) for driving with excess breath alcohol (3rd or subsequent) on 20 April 2019 with an alcohol level of 857 micrograms of alcohol per litre of breath.
(d)120 hours of community work for driving with excess breath alcohol on 10 May 2018 with an alcohol level of 854 micrograms of alcohol per litre of breath.
15 Disqualifications are omitted from this list. Also omitted is an offence from 2007 committed when Mr Rata was under 20 years of age.
(e)Six months’ supervision for driving with excess breath alcohol on 24 August 2011 with an alcohol level of 757 micrograms of alcohol per litre of breath.
[21] As foreshadowed, the PAC report writer “unconvinced” that Mr Rata had remorse for his actions as he stated, “if I was impaired, I wouldn’t drive” and appeared to lack insight into his recidivist drink driving, stating that “I just drove”. The report writer considered that Mr Rata was unable to identify the problems with driving under the influence and alcohol and the potential harm to himself, passengers and other road users. The report writer recommended home detention. Even so, Judge Davis was not bound to that proposal when exercising his discretion.
[22] The Judge was entitled to give the weight he did to Mr Rata’s apparent lack of remorse or insight into his offending. A previous instance of imprisonment, supervision and community-based sentences had shown to be ineffectual at preventing Mr Rata from re-offending. In these circumstances, it was open to the Judge to decide that imprisonment was appropriate in the circumstances.
[23] As Dobson J noted in Kata v Police, where the appellant had a similar history of offending (but notably more remorse and insight into the offending than in this case), “the conduct constituting a danger to the public in cases such as the present is the continued preparedness to drive after taking alcohol”.16 This was the concern that was top of mind for Judge Davis. He correctly characterised the relevant consideration as a “public safety issue” when everything was pointing to Mr Rata continuing to drive while disqualified and/or after having drunk alcohol.
[24] Mr Luders presented, in effect, an “all or nothing” argument: if Mr Rata is in prison there can be no rehabilitation. However, if Mr Rata has a genuine willingness to engage in alcohol addiction programmes, then he can do so after he has served his sentence. As a short-term sentence, Mr Rata’s release date will be once he has served half of it.17 In any event, and as Crown counsel highlighted, part of the release conditions imposed by Judge Davis is that Mr Rata is to attend the appropriate drink-
16 Kata v Police, above n 14, at [17].
17 Parole Act 2002, s 86.
driving programme and any departmental rehabilitation programmes to the satisfaction of a probation officer. So, in this sense the rehabilitative and reintegration principles of sentencing can also be met through the sentence imposed by the Judge.
[25] In summary, I do not consider that the sentence of imprisonment was manifestly excessive. Judge Davis cannot be said to have erred to have found that in the circumstances home detention would not have the required deterrent effect when Mr Rata has a proven and relatively recent history of drink driving offences while disqualified and with the present incident having further been committed while subject to release conditions. Accordingly, my conclusion is none of the grounds of appeal argued justify disturbing the Judge’s decision.
Decision
[26]The appeal is dismissed.
Harvey J
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