Tangipo v Police

[2015] NZHC 1810

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-31 [2015] NZHC 1810

BETWEEN

MARK ANTHONY TANGIPO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 July 2015
Counsel:	M S Boyd for Appellant S J Simpkin and A W M Britton for Respondent
Judgment:	3 August 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Mark Tangipo, pleaded guilty to one charge of driving with excess breath alcohol and was sentenced by Judge Roberts in the District Court at New Plymouth on 18 June this year to six months imprisonment and the mandatory period of disqualification of 12 months and one day.1

[2]      Mr Tangipo now appeals his sentence.  He says the sentence of imprisonment was wrong in law and that he should have been sentenced to community work and supervision.    He does not and in his circumstances cannot challenge his disqualification.

Facts

[3]      Mr Tangipo was stopped by the police in the early hours of the morning of

13 December 2014 whilst driving his motor vehicle in New Plymouth. A subsequent

1      New Zealand Police v Tangipo [2015] NZDC 11384.

TANGIPO v NEW ZEALAND POLICE [2015] NZHC 1810 [3 August 2015]

evidential breath test returned a reading of 508 micrograms of alcohol per litre of breath, compared with the legal limit (for offences) of 400 micrograms.

[4]      When spoken to by the police Mr Tangipo stated he was taking some friends home.

[5]      Up until November 2006 Mr Tangipo had an extensive criminal history.  That history included some seven previous breath and blood alcohol offences, three whilst an unlicensed driver, and numerous other dishonesty, driving and cannabis offending charges dating back to January 1987.   Mr Tangipo has been sentenced to imprisonment   on   four   previous   occasions.      His   most   recent   sentence   of imprisonment was in March 2006 for driving with excess breath alcohol, third or subsequent, when he was sentenced to three months imprisonment and denied leave to apply for home detention.

[6]      Mr Tangipo had, however, not been convicted of any offence between March

2006 and June this year, some eight and a half years.

The challenged sentencing decision

[7]      The Judge declined to accept the proposition that a sentence of community work  was  appropriate.    He  acknowledged  that  it  had  been  some  time  since Mr Tangipo had offended, and that there was a member of his church in Court confirming willingness and ability to provide emotional and financial support.

[8]      The Judge reasoned:

[19]     … You have, in fact, 69 previous convictions.  You are 46 years of age.  At your age, you well know the consequences of offending.  You were, from that point in 2006 when you were jailed, on notice that sentences for you in relation to this type of offending had moved to another level where imprisonment was being calculated.

…

[24]      The short point, Mr Tangipo, is this, time has literally run out.  You can now confidently expect that each time you re-offend in this fashion, prison sentences will be imposed and only increased.  It is unacceptable for you to continue to drink and drive.

[25]      As it happens today, there is no viable alternative sentence available. Home detention and community detention are eliminated.  You acknowledge no home address.  Community work stand alone would be quite inadequate and would not serve to emphasise the sentencing principles of denunciation and   deterrence.      Public   protection   is   another   fact   that   must   be accommodated. …

Appeal

[9]      For Mr Tangipo, Ms Boyd advanced this appeal on the basis that the Judge erred in:

(a)      considering protection of the public as a purpose of sentencing; (b)      failing to consider rehabilitation as a purpose of sentencing;

(c)      failing to correctly analyse the gravity of the offending pursuant to

Clotworthy v Police;2 and

(d)failing  to  impose  the  least  restrictive  outcome,  considering  the desirability of keeping offenders in the community.

Analysis

[10]   It cannot be argued that that protection of the public is not a relevant consideration in sentencing for drink-driving offending.  On the contrary, it is a key consideration, not only when sentencing but one which underpins the whole drink- driving regime.   Nor do I think the Judge failed to consider rehabilitation as a purpose of sentencing.  Rather, in my view the essential question here is whether the Judge  erred  when,  in  sentencing  Mr  Tangipo,  he  concluded  that  Mr Tangipo’s previous record meant that no sentence but imprisonment was the appropriate outcome.

[11]     Mr Tangipo, although in regular employment, was unable to provide any permanent address.  I understand that he had been staying with friends, or perhaps in

his car.  He is, I was informed by Ms Boyd, endeavouring to save sufficient money

2      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

to provide a bond for rented accommodation.  As the Judge noted, therefore, home and community detention, which depend upon an acceptable address, were simply not available in Mr Tangipo’s case. That is clearly unfortunate.

[12]     It has to be said – moreover – that it would be highly unusual for a person convicted of a third or subsequent blood alcohol offence to be sentenced to community work and supervision.

[13]     Nevertheless,  I  think  the  eight  and  a  half  “trouble  free”  years  since Mr Tangipo’s last offending deserve greater recognition than the Judge gave them.  I do not think it can be said, at least without qualification, that in terms of Clotworthy Mr Tangipo had not been deterred by his previous sentence of imprisonment, nor that he had not been prepared to change, as the Judge concluded.

[14]     Nor, as a matter of law, was imprisonment the inevitable sentence, accepting

– of course – that for repeat drink-driving offending (third or subsequent) it is the usual  sentence.3      An  example  of  relevance  is  the  decision  in  R  v  Parker,4  a Solicitor-General’s appeal against a sentence of 200 hours community work for a tenth  conviction  for  drink-driving,  following  a  17  year  gap  from  earlier  like offending.  There, the Court said that the penalty was lenient, but acceptable in the circumstances.  To the extent that the Judge regarded imprisonment as inevitable, he

did in my view therefore err in law.

[15]     Mr Tangipo has, in my view, but for this most recent event addressed the problem he had with alcohol and driving.  Accepting that all drink-driving offending is  serious,  Mr  Tangipo’s  recent  offending  is  not  especially  grave:  unwisely,  he decided to drive friends home after a work function.   He has now spent some six weeks in prison, approximately half, I note, of the period at the expiry of which he would be entitled to automatic parole.  He has an established job and the opportunity

to return to that when released from prison.

3      R v McMillan CA129/04, 12 August 2004 [2004] BCL 808.

4      R v Parker CA260/04, 6 December 2004.

[16]     Having regard to all those matters, I allow this appeal, quash Mr Tangipo’s sentence of imprisonment and – bearing in mind the time he has spent in prison – sentence  him  to  250  hours  community  work  and  to  six  months  supervision. Mr Tangipo is to undertake any programme his probation officer directs to address Mr Tangipo’s alcohol dependency.

[17]     Mr Tangipo will be aware that, were he to reoffend in this way, the outcome would be most unlikely to be the same.

[18]     The mandatory period of disqualification of 12 months and one day is not subject to appeal and remains in force.

“Clifford J”

Solicitors:

Hannam and Co Lawyers Ltd, New Plymouth for Appellant