Tafere v Police

[2017] NZHC 2992

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000325 [2017] NZHC 2992

BETWEEN

TEWODROS TAFERE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 December 2017
Appearances:	C Frans for the Appellant L Fraser for the Respondent
Judgment:	4 December 2017

JUDGMENT OF WOOLFORD J

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland

Counsel:            C Frans, Orewa

TAFERE v NZ POLICE [2017] NZHC 2992 [4 December 2017]

[1]      On 7 September 2017, Tewodros Tafere was sentenced to six months home detention on two charges of driving with excess breath or blood alcohol, one charge of driving with excess breath or blood alcohol on a third or subsequent occasion, one charge of driving while suspended and one charge of receiving a stolen computer valued at $3000.1   He now appeals against sentence on the basis that it is manifestly excessive because it did not sufficiently take into account the fact that he was in custody between 10 January 2017 and 23 March 2017 and then was granted EM bail until 7 September 2017, when he was sentenced.

Factual background

[2]      The three drink-driving offences occurred over a period of about six weeks between 7 July 2016 and 21 August 2016.  On 7 July 2016, Mr Tafere was stopped when he failed to comply with a red traffic signal.  He was spoken to and exhibited signs of recent alcohol consumption.  His breath was subsequently found to contain

534 micrograms of alcohol per litre of breath.

[3]      On 17 August 2016, Mr Tafere was stopped on an unrelated traffic matter.  He again exhibited signs of recent alcohol consumption and breath test procedures were carried out. His breath was subsequently found to contain 638 micrograms of alcohol per litre of breath. He was on the same day suspended from driving for a period of 28 days by the Police.

[4]      Four days later, on 21 August 2016, Mr Tafere was again stopped on an unrelated traffic matter.  Enquiries were carried out which revealed Mr Tafere to be a suspended driver.  When spoken to he exhibited signs of recent alcohol consumption. Breath  and  blood  test  procedures  were  carried  out  and  returned  a  result  of

197 milligrams of alcohol per litre of blood.

[5]      As to the receiving charge, on 12 November 2016 an Apple Macbook Pro was taken in a burglary of a Grey Lynn flat.  The next day, 13 November 2016, Mr Tafere came into possession of the stolen laptop, having received it from an associate in Mt Roskill outside the TAB.  He did not pay any money for the laptop, but arranged to

sell the laptop to an acquaintance.  The acquaintance suspected the laptop had been stolen and confronted Mr Tafere, who ran away, throwing the laptop over a ledge onto a grass bank.

District Court sentence

[6]      After reciting the facts of the offending, Judge P A Cunningham commented that the drink-driving offences were the most serious charges, particularly because Mr Tafere had two previous convictions for driving with excess breath alcohol; one in April 2015 and one in March 2016.  The Judge said that the picture in front of her showed that Mr Tafere had a severe alcohol problem and had recently been diagnosed with depression.  Although Mr Tafere did refer himself to Community and Alcohol Drug Services, he did not continue with their services.  That was of concern to Judge Cunningham, who felt that Mr Tafere was dependent on alcohol and needed further treatment.

[7]      Judge Cunningham adopted a starting point of 12 months imprisonment on the most serious drink-driving charge to which she added six months imprisonment to reflect the fact that there were two other charges and another six months imprisonment for the charge of receiving.   Judge Cunningham also added three months for Mr Tafere’s previous convictions, which together added up to 27 months imprisonment. From that point, Judge Cunningham gave Mr Tafere a seven month discount for his guilty pleas, which resulted in an end sentence of 20 months imprisonment.

[8]      Because the end sentence was less than two years imprisonment, Judge Cunningham had the discretion to substitute a sentence of home detention for the sentence of imprisonment.2    Judge Cunningham was of the view that a sentence of home detention was appropriate, commenting that it could not be anything less because everybody who drinks and drives needed to be aware of the dangers they presented to other people and also the danger they presented to themselves when they drank and drove.

[9]      In considering the period of home detention, Judge Cunningham said that she took into account the fact that Mr Tafere had spent two and a half months in custody and then been on electronically-monitored bail for six months, which she regarded as being some restriction.  The sentence finally imposed was one of six months home detention.   She also set special conditions which were to continue post-detention, which included submitting to judicial monitoring, undertaking the stop drink-driving programme and continuing with his treatment for alcohol issues and any other treatment or counselling as directed.  Finally, Mr Tafere was indefinitely disqualified from driving.

Appellant’s submissions

[10]   Counsel for the appellant accepts that the starting point of 12 months imprisonment and uplifts for the other offending and for previous convictions were appropriate.  The short point on appeal is whether the Judge should have allowed an additional reduction from the high point for the period of nearly six months that

Mr Tafere had spent on electronically-monitored bail.

Discussion

[11]     Appeals against sentence in the High Court are governed by s 250 of the

Criminal Procedure Act 2011. This requires the Court to allow the appeal if:

(a)       for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should have been imposed.

[12]     I accept that it is appropriate for a sentencing judge to allow for time spent in custody (if a sentence other than imprisonment is imposed) and also for time spent on restrictive bail.3   In the present case, Judge Cunningham expressly took into account the time spent by Mr Tafere in custody and on restrictive bail in setting the length of the term of home detention.   It matters not whether she reduced the sentence of imprisonment before converting it to a term of home detention or subsequently made

some reduction in the term of home detention after conversion from a sentence of imprisonment.  It is the end result which matters.

[13]     While not a hard and fast rule, sentences of imprisonment are often halved when they are converted into a term of home detention because offenders sentenced to a term of imprisonment of two years or less are automatically released after serving half their sentence.4     In the present case, the end sentence was 20 months imprisonment. An equivalent term of home detention would therefore be 10 months, which would be served in full.

[14]    However, Judge Cunningham sentenced Mr Tafere to six months home detention, a reduction of four months on the 10 month term which might otherwise have been imposed.  The sole issue is whether Judge Cunningham was wrong not to give any further discount – that is, was a reduction of four months sufficient to recognise the two and a half months Mr Tafere spent in custody and the five and half months he spent on electronically-monitored bail.

[15]     In all the circumstances, I am of the view that Judge Cunningham was not wrong to give no further discount. It is not an inflexible exercise of giving something like a one-for-one discount.  Although the EM bail conditions were restrictive, Mr Tafere was soon permitted to go shopping at Lynnmall, banking on Dominion Road and to attend the New Lynn library for three hours once a week.  He was also free to attend appointments with his legal counsel and there was also no impediment to Mr Tafere attending individual appointments or classes for the assessment or treatment of his alcohol issues.

[16]     Mr Tafere has complained that until 7 July 2017 he was unable to exercise in the backyard of the EM bail address.   While this may have been restrictive on

Mr Tafere, it was eventually eased.

[17]     When standing back and looking at the sentence imposed, this Court is also entitled to have regard to the fact that the seven months reduction for guilty pleas was generous.  That amounted to a discount of just over 25 per cent.  In Hessell v R the

Supreme Court stated that a 25 per cent discount was only available for a guilty plea at the first available opportunity.5     Here the guilty pleas were only made after a sentence indication was given by Judge Collins on 16 February 2017.  In his sentence submissions in the District Court counsel for Mr Tafere acknowledged that he was not entitled to a 25 per cent discount as he did not plead guilty at the earliest opportunity.

[18]     A 15 per cent discount, which would ordinarily be more appropriate than a

25 per cent discount, would bring the end sentence down from 27 months to 23 months imprisonment.   Half of that is a term of 11 and a half months home detention.

Mr Tafere’s final sentence was a term of six months home detention, which is a reduction of five and a half months.

[19]     As I mentioned, it is the end result that matters. The term of six months home detention imposed on Mr Tafere was not imposed in error by Judge Cunningham.  It was within the range available to her.

[20]     The appeal is dismissed.

[21]     I have been advised by Mr Frans that Mr Tafere has now completed his Stop Drink Driving programme, which is commendable.  Furthermore, his home detention address has been transferred to the Salvation Army Epsom Lodge.   I have been provided with a letter from a Salvation Army social worker, who confirms that

Mr Tafere is making good progress.  Again, he is to be commended for his attitude,

which should set him right for the future.

Woolford J