Ruru v Police - [2018] NZHC 114

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-443-33

[2018] NZHC 114

BETWEEN
HEREMIA REWIRI RURU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 February 2018

Counsel:

J C Hannam for Appellant G N Milne for Respondent

Judgment:

13 February 2018

JUDGMENT OF THOMAS J

Introduction

[1] Heremia Ruru was sentenced on 17 November 2017 in the New Plymouth District Court to 15 months’ imprisonment1 following a guilty plea for driving with excess breath alcohol (third or subsequent).2 Mr Ruru now appeals his sentence on the grounds the Judge erred in not sentencing Mr Ruru to home detention.

Factual background

[2] Mr Ruru is 30 years of age. At 4.21 am on 30 April 2017, in breach of his restricted licence conditions, Mr Ruru was found to be driving with a breath alcohol level of 740 micrograms per litre of breath.

1 New Zealand Police v Ruru [2017] NZDC 26367.
2 Land Transport Act 1998, s 56(1) and 56(4); maximum penalty 2 years’ imprisonment, $6,000 fine.

RURU v NEW ZEALAND POLICE [2018] NZHC 114 [13 February 2018]

[3] Mr Ruru has five previous convictions for driving with excess breath alcohol. Two from 2015 (readings 1143 mg and 884 mg) resulted in six-month imprisonment sentences. One from 2010 (855 mg) and one from 2008 (862 mg) resulted in community work, and one from 2005 (518 mg) resulted in a fine.

[4] Mr Ruru has several other convictions for a variety of offences, including disorderly behaviour, theft, assault, wilful damage, and wounding with intent to injure. The latter resulted in a two-year sentence of imprisonment. At the time of the present offending, Mr Ruru was on release with conditions from that sentence.

[5] Mr Ruru’s partner gave birth to their child the day after he was sentenced to imprisonment on the current charge. It is his first child. He was not released for the birth. His partner has written a letter to the Court indicating she is not coping without him, suffering from post-natal depression. She says his release to home detention would allow him to be the father their son deserves.

Pre-sentence report

[6] There are two pre-sentence reports. The first flagged Mr Ruru’s relatively persistent offending and his being on release conditions following imprisonment for violent offending. It identified his insightfulness into his drink driving and his motivation to change. The writer described Mr Ruru’s compliance with his release conditions as “very good”, and noted his self-referral to Narcotics Anonymous, completion of a Drive Straight programme for repeat drink drivers, and attempts to find a place in the Bridge Programme. The writer considered remand to complete the Bridge Programme was appropriate, with sentencing options to be considered depending on the Programme outcome.

[7] The second report flagged Mr Ruru’s failure to complete the Bridge Programme due to differences between Mr Ruru and the programme provider (the Salvation Army). The writer noted Mr Ruru nevertheless continued to attend Narcotics Anonymous, regularly…

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 Ruru v Police

Details

AGLC: Ruru v Police [2018] NZHC 114
Case: [2018] NZHC 114
Decision Date: 13 February 2018

CaseChat Overview and Summary

Heremia Ruru appeals the sentence imposed on him by the New Plymouth District Court. Mr Ruru was sentenced to 15 months' imprisonment for driving with excess breath alcohol (third or subsequent offence). He argues that the District Court Judge erred in not sentencing him to home detention. The Court of Appeal agrees, allowing the appeal and substituting the sentence with home detention and community work.

The legal issue before the Court was whether the District Court Judge erred in not sentencing Mr Ruru to home detention. The appeal was brought under section 250 of the Criminal Procedure Act 2011. The Court of Appeal found that the Judge had indeed erred in not considering home detention as a viable option. The Court considered the offender's personal circumstances, including his motivation to change, his rehabilitative efforts, and the letter of support from his alcohol and drug treatment counsellor. The Court found that the most effective protection of the community was successful rehabilitation, and that home detention would have precisely the same effect as imprisonment. The Court substituted the sentence with six months' home detention, with conditions, and 200 hours' community work.

The Court emphasised the need for Mr Ruru to comply with the conditions of his sentence and warned him of the likely consequences of any breach. The sentence takes into account time Mr Ruru has already served in prison. The Court also confirmed that the address for home detention is suitable as Mr Ruru will be the sole occupant. The Court of Appeal allowed the appeal and substituted the sentence with home detention and community work.

Orders