Sala v Police

[2012] NZHC 421

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000033 [2012] NZHC 421

JONATHAN DAVID SALA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 March 2012

Counsel:         Appellant in Person

JB Hamlin for the Respondent

Judgment:      12 March 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 March 2012 at 12 noon

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

JD Sala: 2505B State Highway 10, Waipapa, Northland. JB Hamlin: [email protected]

SALA V POLICE HC AK CRI 2012-404-000033 [12 March 2012]

[1]       The appellant, Mr Sala, appeals against a sentence of six months’ community detention, supervision for one year, and disqualification for one year and one day imposed by Judge A M Taumaunu in the District Court at Waitakere, following a guilty plea entered on one charge of driving with excess blood alcohol (third or subsequent charge) pursuant to s 56(2) of the Land Transport Act 1998.  Mr Sala was also ordered to pay an analyst’s fee of $93 and medical expenses of $80.

[2]      It was Mr Sala’s seventh drink driving conviction.  The maximum sentence for a third or subsequent offence is two years’ imprisonment, or a fine of $6,000, and the Court must disqualify the person from driving for more than one year.[1]

[1] Land Transport Act 1998, s 56(4).

[3]      Mr Sala’s notice of appeal is dated 30 February 2012.   It asserted that the sentence was based on a faulty pre-sentence report  containing major inaccuracies.  It is also asserted that the sentence of community detention is unworkable, due to Mr Sala’s childcare responsibilities and the fact that he is moving elsewhere.

District Court Decision

[4]      Judge  Taumaunu  started  by  reciting  the  relevant  facts.    He  noted  that Mr Sala’s blood alcohol was 111 milligrams of alcohol per 100 millilitres of blood, and the legal limit is 80.   He observed that Mr Sala was only “slightly over” the threshold.  He went on, however, to observe that Mr Sala had made the same mistake on a number of previous occasions.  He warned Mr Sala that he was very much in danger of going to prison if he continued to drink and drive.

[5]      The Judge referred to the applicable principles and purposes of sentencing, to the pre-sentence report, and to the recommendations made in that report.   He also considered a letter sent to him by Mr Sala.  He noted that Mr Sala has four previous breaches of community work orders.  He noted that further community work was not recommended, and that in the circumstances, it was appropriate to adopt the more punitive sanction of community detention coupled with supervision.   He imposed

curfew hours as follows:

(a)       8.00 pm — 5.00 am, Wednesday and Thursdays, and

(b)      8.00 pm Friday — 5.00 am Monday.

Submissions

[6]      Mr Sala submitted that there are significant errors in the pre-sentence report and that there were various matters which Judge Taumaunu was not aware of.  He said that as a result, the sentence imposed was unworkable.

[7]      Mr Hamlin for the Crown submitted that the end sentence imposed by the Judge was within the range of appropriate sentences for offending of this kind, having regard to the relevant features of the offending, and taking into account appropriate sentencing principles and purposes.   He did however accept that there was one significant error in the pre-sentence report and that there were resulting difficulties for Mr Sala.   He proposed that the curfew hours could be altered to alleviate those difficulties.

[8]      I granted the parties an adjournment to enable them to discuss whether amendments could be made to the curfew hours.   They came back to me with a suggested variation in that regard.   Mr Sala also advised me that subject to that variation being made, he abandoned the remaining points on appeal.

Analysis

[9]      This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957.  Section 121 of that Act confers powers on the Court to determine such appeals.  Relevantly, it provides that in the case of an appeal against sentence, the Court may vary a sentence, or any part of it, or any condition imposed on it, if, inter alia, the Court is satisfied that substantial facts relating to the offender’s character or personal history were not before the Court.

[10]     Here, I am so satisfied.  The pre-sentence report stated that Mr Sala resides with his wife and his five year-old son in Titirangi.

[11]     In fact, Mr Sala resides with his partner and his 23 month-old son.  Because Mr Sala’s partner works, Mr Sala has to share the responsibilities for childcare with his partner.  Moreover, at the time of the offending, Mr Sala and his wife lived in Titirangi.  However, the tenancy agreement for the premises he and his wife rented has run its course, and Mr Sala and his family have now been required to relocate to Northland.

[12]     Judge Taumaunu was not aware of these matters.

[13]     The curfew hours which the Judge put in place create very real difficulties for Mr Sala.  His wife works on Saturday mornings.  Mr Sala takes his son to swimming lessons.  He also has to take his son for a short walk each evening to help get him to sleep.

[14]     The  police  were  not  opposed  to  the  curfew  hours  being  altered  to accommodate  Mr  Sala’s  parental  responsibilities.    By consent,  I  direct  that  the curfew hours be altered to read as follows:

(a)       9.00 pm — 7.00 am Mondays to Fridays, and

(b)      7.00 pm — 7.00 am on Saturdays and Sundays. [15]   In all other respects, the appeal is dismissed.

[16]     There is one practical difficulty.  As noted above, Mr Sala has been forced to move address.  He and his family are now living in the mid-north of New Zealand.  I am advised by Mr Sala that his new address has been assessed by the Probation Department.   The Department has not  as  yet reported  and  neither Mr Sala nor Mr Hamlin knew whether the house is suitable for electronic monitoring.

[17]     Accordingly, pursuant to s 137(1)(c) of the Sentencing Act 2002, I direct that the sentence imposed by Judge Taumaunu, varied as noted above, is to resume, but not until Monday, 9 April 2012.  In the event that Mr Sala’s new address proves to be unsuitable for electronic monitoring, then Mr Sala or the probation officer can make application for variation or cancellation of the sentence of community detention

pursuant to s 69I(1)(b) of the Sentencing Act 2002.  The Court will then be able to make an order in s 69I(3).

[18]     I record that Mr Sala has already served part of the sentence.  The sentence was imposed on 23 January 2012, and Mr Sala’s notice of appeal was filed in this Court on 24 February 2012.  I am advised that Mr Sala complied with the sentence from 23 January 2012 through to 23 February 2012.

[19]     I also record that I have advised Mr Sala bluntly that he has had a close call, and that a sentence of imprisonment is the most common sentence for repeat drink driving  offences  of  this  kind.    I  have  told  him  that  the  sentence  imposed  by Judge Taumaunu  was  not  excessive,  let  alone  manifestly  excessive.    Indeed,  if anything, it was lenient.  Mr Sala has been told that the Court is unlikely to be so lenient if there is yet a further offence of this kind.  Mr Sala acknowledged that he

understood this warning.

Wylie J