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 I commend that careful review which has resulted in that point being withdrawn.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…

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.

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Details

Case: [2012] NZHC 3393
Decision Date: 13 December 2012

CaseChat Overview and Summary

The case of Tarei v Police involves an appeal by Mr. Tarei against a sentence of 7 months imprisonment for driving with excess breath alcohol and driving while disqualified. The High Court of New Zealand was tasked with determining whether the sentence imposed was appropriate or if a sentence of home detention should have been imposed instead.

The key legal issue before the court was whether the sentencing judge erred in imposing a prison sentence rather than home detention. The court examined the sentencing principles and the relevant factors that the judge should have considered, such as rehabilitation and reintegration of the offender.

The judgment found that the sentencing judge did err in focusing unduly on deterrence and denunciation without adequately considering matters of rehabilitation and reintegration. The court noted that the judge did not explicitly weigh these factors, and the absence of such weighing indicated a sufficient error for appellate intervention. The appeal was allowed, and the sentence of imprisonment was quashed. In its place, a sentence of 4 months home detention was substituted, with special conditions attached to ensure compliance and address the offender's behavior.

The final orders of the court were to quash the sentence of 7 months imprisonment and substitute a sentence of 4 months home detention, along with special conditions to be met during the period of home detention.

Orders