Tarei v Police

[2012] NZHC 3393

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-463-62 [2012] NZHC 3393

WHITIAUA JUNIOR TAREI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2012 (Heard at Rotorua)

Counsel:         S R Franklin for the Appellant

D J McWilliam for the Respondent

Judgment:      13 December 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr S R Franklin, Hamertons Lawyers Ltd, Solicitors, Whakatane

Mr D J McWilliam, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

TAREI V POLICE HC TAU CRI-2012-463-62 [13 December 2012]

[1]      Mr Tarei appeals against a sentence of 7 months imprisonment.   This was imposed for his third offence of driving with excess breath alcohol as an adult (and his fourth such offence if an offence under the age of 20 is included) and for driving while disqualified.

[2]      The  notice  of  appeal  contended  that  the  sentence  of  imprisonment  of  7 months was manifestly excessive and that a sentence of home detention should in any  event  have  been  imposed.    Mr  Franklin,  for  the  appellant,  reviewed  the authorities on prison sentences in this area and concluded before the hearing that although 7 months imprisonment may be regarded as severe (a point in which the respondent concurs) he could not responsibly contend that it was manifestly excessive.   I commend that careful review which has resulted in that point being withdrawn.  It has also led to focused and helpful written submissions both from Mr Franklin and from Mr McWilliam, for the respondent.  The sole issue therefore is whether the Judge erred in imposing a prison sentence rather than home detention.

[3]      I will need to come to the principles in that regard, but it will assist firstly to

provide a chronological summary of Mr Tarei’s previous relevant offences:

(a)      In April 2005, at the age of 18, he drove with 202 micrograms of alcohol in the breath, compared with the limit of 40 micrograms.  He was disqualified from driving for 3 months and sentenced to community work for 40 hours.

(b)In December 2006, aged 20, there was a further offence of driving with 461 micrograms of alcohol.  There was a sentence of 70 hours community work and disqualification for 6 months.

(c)      In July 2011, at the age of 24, there was another offence of driving with 588 micrograms of alcohol.   The sentence was 9 months supervision, 100 hours of community work and disqualification for 7 months.

(d)In  December  2011,  at  the  age  of  25,  Mr  Tarei  drove  while disqualified.  This offence occurred approximately 5 months after the previous drink drive conviction and while still on supervision and still subject to disqualification.   Sentencing for this disqualified driving occurred on 29 June 2012.   The sentence was 60 hours community work and disqualification for 6 months.

(e)      The  offences  now  subject  to  appeal  occurred  14  days  after  the sentencing for the disqualified driving offence just mentioned.   The breath alcohol reading was 642 micrograms of alcohol.   And there was the associated driving while disqualified.

The judgment under appeal

[4]      A difficulty that arises on this appeal is that the Judge’s observations  on sentencing are short.   This is understandable.   I had assumed when reading the judgment that sentence would have been imposed in a busy list court in the District Court at Whakatane.  Mr Franklin, who appeared for Mr Tarei in the District Court, confirmed that that was the case.  This needs to be taken into account, and I will come back to that.

[5]      It will assist to record those parts of the Judge’s observations which bear most directly on the central point in issue in respect of the appropriate sentence.   The central  point  is  whether  the Judge  erred  in  focusing  unduly,  if  not  entirely,  on questions of deterrence in particular and, perhaps implicitly, on denunciation and holding the offender to account, without having regard to matters of rehabilitation and reintegration of the offender. The relevant passages are as follows:

[1]       Mr Tarei, I have taken some time considering this because your history makes particularly sorry reading.

…

[3]       Your counsel submitted that the appropriate consideration here is community detention, but it is important to address the sentencing structure and the sentence in the appropriate way.  Before community detention can be imposed the Court has got to be satisfied that a sentence of imprisonment is appropriate.    Notions  of community  detention,  instead  of  a  term of  the

imprisonment,   only   apply   once   the   Court   has   fixed   the   term   of imprisonment.   Then the issue becomes as to whether there is the least restrictive sentence required, to send a message to offenders generally and to you in particular, is such that a community-based sentence is appropriate.

[4]       Given that this is a combined offence, of driving whilst disqualified and driving whilst intoxicated and appears that you have complete disregard for Court orders in the circumstances, I believe that – though this is and here is an oxymoron if I ever heard one – only the third drink driving, is such that the message that needs to be sent generally is that repeat drink driving is a scourge on the community.   It is dangerous, it is irresponsible and it is serious  criminal  offending.     Parliament  has  sent  a  clear  message  by increasing the maximum sentence that the start point for a third and subsequent drink driving is a sentence of imprisonment.

[5]       If I begin from the proposition that this is only a third, I need to also consider that this is also a disqualified driving and occurs within two weeks of  your  last  sentence.    I am therefore  satisfied  that  the  start  point is  a sentence of imprisonment that is in the order of 10 to 12 months.  You are, however,  entitled  to  a  credit  for  your  early  plea  of  guilty  and  the  end sentence can be reduced to a sentence of seven months.   Then the issue becomes whether it is appropriate I consider any sentence, other than a term of imprisonment, as the least restrictive sentence appropriate in the circumstances. Without double-counting the closeness of the offending, I am satisfied that your disregard of the Court orders suggest to me that you are not an appropriate candidate for a sentence in the community.  That you will interpret this simply as having got away with drink driving again.

[6]      The Judge, following the last quoted paragraph, then imposed the sentence of

7 months imprisonment together with disqualification for 12 months and 1 day, commencing at the end of the current disqualification on 28 December 2012.  The same penalties were imposed for driving while disqualified.  The Judge concluded his sentencing by imposing a special release condition as follows:

To   attend   such  counselling,   programme   and/or  treatment   to   address identified offending behaviour, as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.

Personal circumstances of the appellant

[7]     There was no reference in the sentencing observations to any personal circumstances  in  respect  of  Mr  Tarei,  save  for  those  relating  to  his  previous offending and, in particular, the fact that the current offending occurred 14 days after sentencing for the December 2011 disqualified driving offence.

[8]      There was what may be described as a positive pre-sentence report.   The report writer recognised negative aspects of Mr Tarei’s offending, including some tendency to play down the offending.  On the other hand Mr Tarei has been married for 6 years and from the pre-sentence report that has been a stable relationship for 6 years.  Mr Tarei and his wife at the time of the report had an 18 month old son.  Mrs Tarei described her husband as an “awesome father” and acknowledged the commitment he had to support her and their son.   The probation officer did not mention, but Mr Franklin advised me, that Mrs Tarei gave birth to another child after Mr Tarei went to prison.   Mr Tarei at the time of the pre-sentence report was in employment.   He is reported to be a keen rugby player.   The probation officer records that Mr Tarei is deeply regretful for what has occurred.   He accepted the need to obtain counselling for alcohol abuse.

[9]      The probation officer recommended sentences  of supervision, community work and community detention.  Mr Franklin on the appeal did not submit that there could realistically be a sentence less than home detention.

Submissions

[10]     Mr Franklin undertook a careful survey of the relevant provisions of the Sentencing Act.   He placed some emphasis on s 16 regarding the restraint on the Court in imposing a sentence of imprisonment.   As I have earlier indicated, he recognised that the Judge was recording his reasons for sentence in a busy list court. Whilst fully recognising that, Mr Franklin submitted that on a careful reading of the Judge’s  reasons,  and  drawing  all  reasonable  inferences  as  to  what  was  not articulated, there still appears to have been undue focus on deterrence.  As I have earlier recorded, and arising from Mr Franklin’s submissions, there was no express reference in the sentencing to matters of reintegration and rehabilitation.   Express reference to precise statutory provisions would not be expected.  However, there is also no reference to any matters of fact bearing on rehabilitation and reintegration.

[11]     For the respondent, Mr McWilliam quite properly emphasised the fact that the sentence was being imposed in a busy list court.   He submitted that when the sentencing remarks are considered it is sufficiently apparent that the Judge did weigh

the matters he was required to weigh, including those which may have pointed towards a sentence of home detention.  The passage in the sentencing notes given emphasis by the respondent is the second half of paragraph [5] and in particular the reference to the assessment of the least restrictive sentence.

Discussion

[12]     The correct approach by a Court on sentencing when determining whether a sentence should be imprisonment or home detention was recently reviewed by the Court of Appeal in Manikpersadh v R.[1]     Relevant passages in that judgment on matters of principle include the following:

[1] Manikpersadh v R [2011] NZCA 452.

[10]     This Court in Osman v R[2] supported William Young P’s comments in

[2] Osman v R [2010] NZCA 199.

R v Vhavha[3] (in a dissenting judgment) when he said:

[3] R v Vhavha [2009] NZCA 588.

[29]  Eligibility  for  home  detention  depends  upon  the  sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act

2002. In effect, the Court is given a discretion to commute to home detention  what  would  otherwise  be  a  short-term  sentence  of

imprisonment. There is nothing in the Sentencing Act to suggest a

presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

(Emphasis added.)

...

[45]  So,  coming  back  to  this  case  again,  I  do  not  see  the requirements of holding the appellant to account, denunciation or deterrence as logically controlling the decision whether to commute the otherwise appropriate sentence of imprisonment to home detention. That being so, and the appellant being in all respects a good  candidate  for  home  detention,  I  see  the  least  restrictive outcome principle (see s 8(g)) as the primary consideration, with the result that I would allow the appeal and sentence the appellant to nine months home detention.

[11]      This Court identified the appropriate approach in James v R in this way:[4]

[4] James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 (CA).

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

(Footnotes omitted.)

[12]      We  agree  with  counsel  for  the  respondent’s  assessment  that  the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of  a  fettered  discretion,  with  appellate  review  focusing,  as  in  other sentencing appeals to this Court, on the identification of error, if any, in the court below”.

[13]     Assessing these matters in the circumstances I have outlined, and referring here in particular to the pressures on Judges imposing sentence in list courts in the District Court, is not easy.  On an appeal the appellate court will always recognise that numbers of matters that will have been in the sentencing Judge’s mind will not have been articulated.  Sufficient weight needs to be given to that.  But undue weight cannot be given to that bearing in mind what is at stake; that is to say, in this case whether there should be a continuing sentence of imprisonment of 7 months or a sentence of home detention.

[14]     In the end I have concluded, with considerable hesitancy, and basing this on the record available to me and the inferences that can be drawn, that the Judge did err in exercise of the discretion available to him, and being a fettered discretion as explained in the Court of Appeal decision.  Parts of the passages I have quoted from the sentencing notes have a degree of ambiguity in the sense that they may indicate a weighing of both sides of the question.  But the general thrust in my judgment is, and with  due respect  to  the  Judge,  undue emphasis  on  deterrence  in  particular.    In

addition, and although again there could be a degree of ambiguity, the concluding sentence in paragraph [3] indicates a degree of presumption in favour of imprisonment.  And if this is the case that is contrary to principle, as also indicated by the Court of Appeal.

[15]     The absence of any express weighing of the countervailing factors does tend to indicate sufficient error for an appellate court to intervene. And, as I have already indicated, this in my judgment is reinforced by the absence of any reference to a range of not insignificant personal factors pointing to a sentence of home detention rather  than  imprisonment  because  of the  relevance  in  that  regard of  matters  of rehabilitation in particular.

[16]     For these reasons the appeal is allowed and the sentence of imprisonment is quashed.

[17]     A sentence of home detention is to be substituted.  Mr Franklin submitted that if a sentence of home detention was to be substituted the appropriate period of home detention should be 2 months.   This was based on a prison sentence of 7 months imprisonment resulting on a conventional basis in a sentence of 3 ½ months home detention with an appropriate allowance for the 7 weeks so far spent in prison.  Mr

Franklin referred to the Court of Appeal’s decision in Paul v R.[5]

[5] Paul v R [2011] NZCA 589.

[18]     Although a starting sentence of imprisonment will often be converted into a period of home detention half the length of the prison starting point, this is not a statutory requirement nor is it a rule of law.  There may be particular circumstances where a period of home detention should be longer than half the length of a prison term.   This would need to be assessed in each case having regard to the relevant principles and purposes of sentencing.  This approach was in fact the approach of the Court of Appeal in Manikpersadh where a sentence of 4 months imprisonment was quashed and a sentence of 5 months home detention substituted.

[19]     In my judgment, the appropriate sentence of home detention in this case, weighing all relevant matters that I have already fairly fully set out, would be 6 months home detention.   Making allowance for the period spent in prison that is reduced to 4 months home detention.

[20]     There is also need for special conditions broadly similar to those imposed by the District Court.

[21]     Accordingly, the sentence of 7 months imprisonment is quashed.  In its place there will a sentence of 4 months home detention.  There will be special conditions attached to the sentence of home detention with these conditions to continue for a period of 6 months at the end of the home detention period. They are as follows:

(a)      Upon release from prison, Mr Tarei is to travel directly to 32 Bob Wilson Place, Kawerau and await the arrival of a probation officer and security officer.

(b)Mr  Tarei  is  to  reside  at  32  Bob  Wilson  Place,  Kawerau  for  the duration of the sentence.

(c)      He is not to purchase, possess or consume alcohol and/or illicit drugs for the duration of home detention.

(d)He is to undertake and  complete an appropriate alcohol and drug assessment and programme to the satisfaction of the probation officer and service provider.

(e)      He is to undertake a Choices Challenge Drink Drive workshop to the satisfaction of the probation officer and service provider after assessment by Community Mental Health.

(f)      He is to undertake and complete a Tikanga Maori programme, subject to availability, to the satisfaction of the probation officer and programme provider.

(g)He is to attend such counselling/programme/treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme

provider.

Woodhouse J