Tawa v Police
[2016] NZHC 696
•15 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000072 [2016] NZHC 696
BETWEEN TROY TAWA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 April 2016 Appearances:
J D Pennick for Appellant
J V Angelson and GM Woods-Child for RespondentJudgment:
15 April 2016
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Friday, 15 April 2016 at 11:30 am pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors: Meredith Connell (Crown Solicitor), Auckland, for Respondent
Counsel: JD Pennick, Barrister, Auckland, for Appellant
TAWA v NZ POLICE [2016] NZHC 696 [15 April 2016]
Introduction
[1] This is an appeal against a sentence of 23 months imprisonment imposed on
Mr Tawa by Judge RG Ronayne in the Auckland District Court on 23 February
2016.1 Mr Tawa had earlier pleaded guilty to:
(a) One charge of driving with excess blood alcohol being his fourth conviction for the same charge.2 This charge carries a maximum penalty of two years imprisonment.
(b)Two charges of driving while disqualified being his sixth and seventh convictions for the same charge.3 These charges carry maximum penalties of two years imprisonment.
(c) One charge of careless driving.4 This charge carries a maximum penalty of a fine not exceeding $3,000.
[2] Mr Tawa appeals on the basis that the sentence of 23 months imprisonment is manifestly excessive and, furthermore, that the Judge should have substituted the sentence of imprisonment with a community-based sentence.
Background
[3] The charges of which Mr Tawa was convicted arose out of two separate incidents. The first incident occurred on 21 August 2015. At about 6:45 pm Mr Tawa was driving a small 50cc motorcycle along a footpath in Taniwha Street, Glen Innes. It was dark and the motorcycle did not have headlights attached to it. Mr Tawa drove from the footpath across the road in front of a motor vehicle. He crashed into the front of the vehicle and was knocked off his motorcycle. He was taken to hospital where he was treated for a broken leg and a head wound. A blood test revealed that Mr Tawa’s blood alcohol content was 192 milligrams of alcohol per
100 millilitres of blood.
1 Police v Tawa [2016] NZDC 3094.
2 Land Transport Act 1998, ss 56(2) and 56(4).
3 Land Transport Act 1998, ss 32(1)(a) and 32(4).
4 Land Transport Act 1998, s 37(1).
[4] The second incident occurred on 7 November 2015. Mr Tawa was found driving the same motorcycle on Elstree Avenue, Glen Innes. The police stopped Mr Tawa because the motorcycle was not registered. Subsequent inquiries revealed that Mr Tawa had been disqualified from driving. Mr Tawa claims he had repaired the motorcycle and was intending to give it to his 15 year old daughter. He says he was test driving the motorcycle to make sure it was working.
[5] Mr Tawa has a number of convictions for drink-driving and driving while disqualified and although he has been sentenced to short terms of imprisonment on two previous occasions, his last drink-driving offence occurred eight years and four months before the 21 August offending and his last driving while disqualified offence occurred six years ago. He has incurred no convictions at all in the last five years.
[6] Mr Tawa is now 39 years old and lives with his wife and three daughters aged eight, 10 and 11. He has employment as an arborist.
District Court decision
[7] After setting out the background to the offending, noting the pre-sentence report and referring to the submissions made by counsel, the Judge stated:
[18] The starting point in my view, Mr Tawa, should be a short term of imprisonment. I bear in mind the Clotworthy decision and the decisions in more recent cases such as Samson. Here, the manner of your driving on the first occasion was poor, you had a high blood alcohol reading, you drove not only drunk but while disqualified. Your second disqualified driving conviction has come in close succession and as I said earlier, that was committed while you were on remand for the first set of offences. I take into account the attitude that you display to your offending, which is trying to justify it. It is not justifiable at all. I also take into account the fact that you have previously been imprisoned for this sort of offending. I also take into account that you have convictions for other types of offending.
[19] On the positive side, I take into account your guilty pleas. I also take into account that it is just short of five years since your last drink- driving conviction.
[20] For the first set of offences on 21 August, my view is that an appropriate starting point is a sentence of 20 months’ imprisonment for the totality of that offending. I uplift that by a further six months to reflect the second brazen offending. That, Mr Tawa, comes to 26 months’ imprisonment. I add to that three months to reflect your previous list of
convictions, over and above the elements inherent in these charges. That then comes to 29 months.
[21] My view is that approximately a 20% discount ought to be given for your guilty pleas. I take into account all of the range of circumstances applicable in relation to calculating your guilty plea reduction. These were unanswerable charges and the case has been somewhat delayed. That removes from the 29 months, a period of six months. That then results in 23 months’ imprisonment.
[8] On this basis the Judge sentenced Mr Tawa to the following prison terms to be served concurrently:
(a) Twenty one months imprisonment for the excess breath alcohol offending on 21 August 2015;
(b)Eighteen months imprisonment for the driving while disqualified offending on 21 August 2015;
(c) Twenty three months imprisonment for the disqualified while driving offending on 7 November 2015.
[9] The Judge convicted and discharged Mr Tawa on the charge of careless driving on 21 August 2015. Finally, he also disqualified Mr Tawa from driving for
18 months on the drink-driving and driving while disqualified charges.
[10] The Judge then considered whether to commute the sentence of 23 months imprisonment to one of home detention. The Judge placed emphasis on the principles of deterrence, denunciation and the need to protect the community and considered a sentence of home detention to be inappropriate in all the circumstances.5
Issues on appeal
[11] Mr Pennick, for Mr Tawa, submits that the sentence was manifestly excessive because the Judge:
5 At [22].
(a) Adopted an excessive starting point;
(b)Uplifted the starting point by an excessive amount to take account of the careless driving charge;
(c) Wrongly uplifted the starting point to take into account Mr Tawa’s
previous convictions;
(d) Failed to take into account mitigating factors personal to Mr Tawa;
(e) Failed to take into account the “most unusual” circumstances which gave rise to Mr Tawa’s indefinite driving disqualification.
[12] Mr Pennick also submits that the Judge erred in exercising his sentencing discretion and should have substituted the sentence of imprisonment with a lesser sentence. Mr Pennick submits that community detention coupled with intensive supervision, as recommended by the Department of Corrections in its pre-sentence report, would be the least restrictive outcome appropriate in the circumstances.
Approach on appeal
[13] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.6 The principles behind the law are well known, and are not
changed by the Criminal Procedure Act 2011.7 A sentence will be manifestly
excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.8
6 Sentencing Act 2002, s 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
8 At [33], [35].
Starting point
Starting point for the 21 August offending
[14] In fixing a starting point Judge Ronayne considered the totality of the
21 August offending and directed himself to the leading cases of Clotworthy v
Police9 and Samson v Police.10
[15] Clotworthy provides a framework for sentencing (third and subsequent) excess breath or blood alcohol offending in terms of aggravating and mitigating factors. In Clotworthy Wild J considered the following factors to be relevant to the sentencing exercise:11
[a] The breath or blood alcohol level;
[b] The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
[c] Conviction for two or more drink driving offences in close succession.
[d] The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).
[e] Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 of the Land Transport Act 1998).
[f] The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.
[g] The sentences (in particular whether they included imprisonment) imposed for previous excess breath or blood alcohol convictions and the response (or lack of it) to those sentences.
[h] The offender’s record, if any, of convictions for other types of
offending.
[i] Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
9 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
10 Samson v Police [2015] NZHC 748.
11 At [20].
[j] Any mitigating personal or family circumstances contributing to the offending.
[16] I apply this framework to the 21 August offending. Typically when fixing a starting point only features of the offending (rather than the offender) are taken into account.12 Strictly speaking, therefore, only factors [a]-[e] should be taken into account when determining an appropriate starting point.13 For convenience, however, I will also consider aggravating factors personal to Mr Tawa when
considering whether the Judge in the present case reached a starting point within the range available to him. That approach accords with the global approach the Judge took in fixing a starting point. Starting point in this context therefore means the sentence reached before mitigation.
[17] In my view, the following features aggravate the 21 August offending: (a) Mr Tawa’s blood level alcohol;
(b) The careless driving charge;
(c) Mr Tawa’s indefinite disqualification from driving at the time of the offending.
(d)The earlier sentences of imprisonment imposed on Mr Tawa for drink- driving and driving while disqualified offending.
[18] I discuss these factors in turn with reference to counsel’s submissions.
[19] Mr Tawa’s blood level alcohol was 192 milligrams of alcohol per
100 millilitres of blood. That is almost two and a half times the legal limit. Mr Pennick submits that the blood level was some distance from offending of the worst sort. In Samson, Whata J cited Sands v Police14 as a case involving a very
high level of intoxication. The offender in that case had a breath alcohol level
12 R v Taueki [2005] 3 NZLR 372 (CA).
13 See Samson, above n 10 at [14] where Whata J separated the Clotworthy factors into aggravating factors of the offending and then aggravating and mitigating factors of the offender.
14 Sands v Police [2012] NZHC 3011.
2.66 times the legal limit. Mr Tawa is in similar territory with a blood reading that was 2.4 times over the legal limit.15 As a result Mr Tawa’s blood level alcohol must be seen at the very least as a moderately aggravating factor and more likely as a seriously aggravating factor.
[20] The offending is also somewhat aggravated by its careless driving element. Driving a motorcycle on the footpath is plainly dangerous because footpaths are used by pedestrians. The capacity for serious injury to a pedestrian who collides with a motorcycle is obvious. Accordingly, the Judge was right to reject the submission that the relatively low-powered nature of the motorcycle mitigated the offending. In
my view, the offending cannot be considered as “innocuous”.16 Mr Tawa himself
suffered moderate injuries. I acknowledge, however, that the degree of risk to the public was far from the most serious cases of careless driving. The traffic crash report concludes that the motorcycle was travelling no more than 30 kph at the time of the accident. It could have been less. I also accept that the degree of defiance exhibited in the present case is lower than in cases involving driving more powerful vehicles over a longer period of time. Mr Tawa was going to the local dairy a short distance away.
[21] Mr Tawa was, however, indefinitely disqualified at the time of the offending. He had been previously disqualified five times. In Samson the offender was also indefinitely disqualified at the time of the offending and had been previously disqualified on eight occasions. Whata J considered this to be a “seriously aggravating factor”.17 Similarly, in the present case Mr Tawa has demonstrated a prolonged disregard for driving regulation which seriously aggravates the offending.
[22] Mr Tawa has also served two separate sentences of imprisonment for drink- driving and driving while disqualified (imposed in 2007 and 2010). In Clotworthy
Wild J considered it particularly relevant whether previous sentences have included
15 In calculating this figure I have used the alcohol level provided in s 56(2) of the Land Transport Act. That is 80 milligrams of alcohol per 100 millilitres of blood. I note that it is an infringement offence in s 56(2A) to drive a vehicle with an alcohol level of 50 milligrams of alcohol per 100 millilitres of blood.
16 To use the Clotworthy terminology.
17 At [18].
imprisonment and whether the offender has responded to those sentences.18 To his credit, Mr Tawa has not been convicted of drink-driving since 2007 which evinces some level of response to the sentence of imprisonment imposed for that offending (I will return to this point shortly). However, Mr Tawa was sentenced to imprisonment for driving while disqualified in September 2010. That is less than five years prior to the offending on 21 August. Given the 21 August offending entailed driving while disqualified, the relatively recent term of imprisonment should be seen as an aggravating factor.
[23] Thus, the 21 August offending is marked by four aggravating factors, with at least two of them seriously or moderately aggravating the offending. In Samson, Whata J provided some broad generalisations in relation to how aggravating factors bear on starting points reached in excess breath or blood alcohol cases as follows:19
(a) No seriously or only moderately aggravating factors, 9-12 months imprisonment;
(b)One or more seriously aggravating factors, 12-18 months imprisonment;
(c) Multiple offences with seriously aggravating factors, 18-20 months imprisonment;
(d)Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months imprisonment.
[24] Arguably, therefore, the 20 months starting point adopted by the Judge appears to be within the available range. There were three offences before the Court marked by at least two serious or moderately aggravating factors. Whata J made it clear, however, that the above bands are not tariffs. His Honour cautioned that care
must be taken when relying on precedent in this context.20 The Court of Appeal
18 See factor [g] at paragraph [20].
19 At [15].
20 At [17].
made similar remarks in R v McQuillan.21 Accordingly, a closer level of scrutiny is warranted.
Other cases
[25] I will therefore review authorities adopting starting points of 18-20 months imprisonment in order to ascertain whether the offending in the present case is at a similar level of seriousness to the offending in those cases.
[26] I turn first to the case of Dick v Police.22 The offending in that case was marked by the following features:
(a) Seven previous convictions for driving with excess breath or blood alcohol;
(b) Six previous convictions for driving while disqualified;
(c) The offending occurred on 10 February 2013 with the offender’s most
recent prior offending being in 2012.
(d)There had been a period of 11 years before the offending in 2012 where the offender had not committed any drink-driving offences.
(e) The driving itself was innocuous.
[27] Lang J considered that a starting point of 18 months imprisonment was appropriate for the excess breath or blood alcohol offending. His Honour considered the significant gaps in offending to mean that the offender was not a person who had offended habitually. Rather, he had offended from time to time with the most serious period of offending occurring between 1991 and 1995. On this basis, the offender did not fit into the category of offenders for whom the maximum penalty should be
reserved.
21 R v McQuillan CA 129/04, 12 August 2004 at [22].
22 Dick v Police [2014] NZHC 434.
[28] However, Lang J uplifted the starting point by six months to take into account the driving while disqualified charge. So the sentence, before mitigation, reached two years imprisonment. That supports the starting point of 20 months imprisonment reached by way of the global approach of the Judge in the present case.
[29] In Sands v Police23 an end sentence of 23 months imprisonment was upheld on appeal. The offender was sentenced on two charges of driving with excess breath alcohol (both being third or subsequent offences) and driving while his licence was suspended. The offending was marked by the following features:
(a) Eight previous convictions for driving with excess breath or blood alcohol;
(b) Five previous convictions for driving whilst disqualified;
(c) Two previous convictions for driving in a careless manner and one previous conviction for driving in a dangerous manner.
(d) As discussed,24 the offender’s breath alcohol level was 2.66 times the
legal limit.
(e) The offending occurred in 2011 with the offender’s last conviction for driving with excess breath alcohol being in 2006.
(f) The offending occurred while the offender was on bail.
[30] Wylie J considered the offender to be a recidivist drink-driver notwithstanding the five year gap in offending. He upheld the sentence of 23 months imprisonment on appeal. In my view, the offending in Sands was more serious than in the present case. This perhaps suggests that the same sentence of imprisonment
reached by the Judge was excessive.
23 Above n 14.
24 At paragraph [19] above.
[31] In R v Fair25 the offender was sentenced to 18 months imprisonment. The Court of Appeal explained the relevance of previous convictions and the time span they are committed within as follows:26
Sometimes, even in the absence of other highly aggravating factors, sheer recidivism can call for a sentence at or close to the maximum. But the number of convictions needs to be set against the span over which they were incurred and when within the span. Convictions remote in time, of themselves, may amount to little more than a statistic. They may derive such significance as they have from the convictions that follow. Generally speaking, the closer convictions are to the offence for sentence the more aggravating they become. If they are close in time they can be highly aggravating; if there has been a significant gap less so. Once again an exercise in judgment is called for.
[References omitted]
[32] Although the offender had a longer list of relevant previous convictions (13 for drink-driving and 12 for driving while disqualified) than Mr Tawa, there is a degree of commonality in the offending. The offender was only caught driving while disqualified once in the seven years preceding the offence before the court while Mr Tawa was only caught driving while disqualified once in the period of eight years and four months that preceded the offending on 21 August. Neither Mr Tawa nor the offender was caught driving with excess breath or blood alcohol throughout those periods. Both Mr Tawa and the offender were only seen to have
driven a short distance. In Fair the Court of Appeal said:27
Within the preceding seven years Mr Fair may have driven once while disqualified. Of greater significance was that he had not driven with an excess breath alcohol level; and that seven year period was far from negligible. Also, perhaps fortuitously for Mr Fair, he was seen only to drive very briefly and without any incident. These factors combined take Mr Fair’s two offences out of the most serious category. They lie rather “near to the most serious of cases”: s 8(d). A starting point of 20 months for each offence is the most we consider justifiable.
[33] The Court of Appeal considered a starting point of 20 months imprisonment for each offence to be served concurrently to be supportable by authority. Mr Tawa’s offending on 21 August shares many features with the offending in Fair. The
offender had considerably more previous convictions than Mr Tawa but this is
25 R v Fair [2007] NZCA 282.
26 At [13].
27 At [19].
counterweighed by the innocuous nature of his driving. In my view, the level of culpability in Fair is comparable to that of the 21 August offending.
[34] In view of these authorities, I consider the starting point adopted by the Judge to be within the range available to him. The cases of Dick and Fair do demonstrate the availability of the starting point given the broadly similar offending.
[35] However, Mr Pennick refers to two other cases which he submits demonstrate that the starting point adopted by the Judge was out of step with the relevant case law.
[36] The first case referred to by Mr Pennick is Henderson v Police.28 The offender in that case faced charges of driving with excess blood alcohol, driving in a dangerous manner and driving contrary to a zero alcohol licence. It was her third drink driving offence. All three drink driving offences occurred within a four year period. A starting point of 15 months imprisonment was adopted in the District Court. It was upheld on appeal as being high but not excessive. The offender was observed on a number of occasions crossing the centre line in the face of oncoming traffic. Drivers heading in the opposite direction had to take evasive action, by braking and swerving to avoid the appellant. A breath test recorded that the offender had 1438 micrograms of alcohol per litre of breath.
[37] Plainly, the driving in Henderson occasioned a higher degree of risk to the public than in the present case. The level of alcohol involved was also markedly higher.29 Further, the offender’s relevant convictions spanned only a four year period. Thus in many ways the offending in Henderson was more serious than in the present case. This is offset somewhat by the fact that the offender had not been disqualified from driving at the time of the incident. The starting point reached by the Judge for the 21 August offending took into account the disqualified while driving charge. Critically, Mr Tawa had relatively recently been sentenced to a term
of imprisonment for driving while disqualified. The Court in Henderson did not
need to respond to a long chain of driving whilst disqualified offending. Thus, the
28 Henderson v Police [2015] NZHC 3249.
29 The offender in Henderson was three and a half times over the legal limit.
higher starting point adopted in the present case could be justified on this crucial distinction.
[38] But Henderson does tend to show that the starting point adopted by the Judge in the present case was stern. It was significantly higher than the starting point reached by Dunningham J in Henderson. I take this into account.
[39] The second case referred to by Mr Pennick is Matkovich v Police.30 The offender in that case drove over a roundabout and collided with another vehicle. He returned a breath alcohol level of 901 micrograms per litre of breath. It was his sixth drink driving offence. The offender was sentenced in the District Court to six months imprisonment. The Judge had adopted a starting point of nine months imprisonment. That sentence was upheld on appeal. I acknowledge Mr Pennick’s submission that in at least a couple of ways the offending in Matkovich was more serious than in the present case. The offender had a longer history of drink-driving offending than Mr Tawa and the incident involved inflicting considerable damage on another vehicle. However, the offender had not previously been sentenced to imprisonment and was not facing driving while disqualified charges. Even still, I consider there to be a disparity in the two starting points.
Conclusion as to starting point
[40] I consider the starting point of 20 months imprisonment adopted by the Judge to be stern. I say this on the basis that it was Mr Tawa’s fourth drink-driving offence which stands in contrast to Sands where the offender had eight previous drink- driving convictions. Further, a considerable time has elapsed since Mr Tawa’s most recent drink-driving conviction. The cases referred to by Mr Pennick confirm that the starting point reached by the Judge was stern. Equally, however, the cases of Dick and Fair show the Judge’s starting point of 20 months imprisonment was within the range available to the Judge. Whilst the starting point is stern it does not warrant interference on appeal. Nevertheless, I bear the foregoing analysis in mind when discussing the Judge’s uplifts for the offending on 7 November and for
previous convictions.
30 Matkovich v Police [2013] NZHC 872.
Uplifts to starting point
Uplift for 7 November offending
[41] The Judge uplifted the starting point of 20 months imprisonment by six months to reflect the “brazen” offending on 7 November. However, regard must be had to totality principles. In my view, the six month uplift for the 7 November offending brings the sentence out of step with the broadly comparable cases which I have discussed. In my view, a sentence reaching 26 months imprisonment before mitigation offends totality principles and is not supportable with reference to the relevant authorities.
[42] Nevertheless, the second disqualified driving conviction did come in close succession to the 21 August offending and it was committed while Mr Tawa was on remand for the first set of offences. Some recognition is required at sentencing. While referred to as “brazen” by the Judge, Mr Tawa had not been drinking and was stopped only a short distance from his home. His explanation that he was test driving the motorcycle after repairing it and before giving it away is not implausible. Accordingly, I do not think a significant uplift is required despite the fact the offending was clearly irresponsible.
[43] At most only a three month uplift is required for the 7 November offending. That would bring the sentence to 23 months imprisonment before taking into account any mitigating factors.
Uplift for previous convictions
[44] The Judge then uplifted the adjusted starting point by another three months to
29 months imprisonment to reflect Mr Tawa’s previous convictions. Twenty nine months imprisonment is five months above the maximum penalty for the drink- driving and driving while disqualified charges, although cumulative sentences are, of course, available. In my view the aggravating influence of previous convictions was inherent in the high starting point of 20 months imprisonment adopted by the Judge. A discrete uplift was inappropriate in this context. I am reinforced in this view
having regard to totality principles. Thus, my analysis leaves a sentence of
23 months imprisonment before mitigation.
Mitigation
[45] Mr Pennick submits that there should have been mitigation for:
(a) Discount for hardship already suffered by virtue of the injuries sustained on 21 August.
(b) Mr Tawa’s personal circumstances including stable employment and
family life.
[46] In relation to hardship already suffered, Mr Pennick points to the fact that Mr Tawa suffered considerable injuries as a result of the 21 August offending. These injuries required a lengthy rehabilitation period and forced Mr Tawa away from his job for six months. The injuries have also prevented Mr Tawa from playing rugby
which has been a lifelong passion of his. Mr Pennick refers to R v Lomas31 which
involved the attempted manufacture of methamphetamine. There was an explosion and the offender suffered severe injuries. The offender was given a lenient sentence partly because the horrendous injuries he suffered by virtue of his offending fulfilled the sentencing principles of deterrence and denunciation. The Court said:32
However, the consequences of the respondent’s offence were so horrendous for him and his family that they constituted a deterrent and form of denunciation of his offence far in excess of anything the Court could impose. More than two years after the event the respondent still faces operative treatment as a result of which he is likely to lose toes because of the consequences of his foolish and illegal action. In such circumstances we consider that the sentencing Judge cannot be criticised for imposing a more merciful sentence than would otherwise have been justified.
[47] Mr Pennick acknowledges that the injuries suffered by Mr Tawa fall considerably short of the severity suffered by the offender in Lomas. He submits, however, that Lomas stands for the proposition that discount can be given when there
is a degree of deterrence inherent in the offending itself.
31 R v Lomas CA113/03, 24 July 2003.
32 At [26].
[48] Mr Pennick also refers to Waight v Police.33 That case involved drink-driving offending. The offender was a newly qualified police officer, who had previously been employed as a technician with the navy. He was likely going to lose his job with the police regardless of whether a conviction was entered and thus intended to return to the navy. It was likely that the entry of a conviction would result in an
18 month stand down period if he was successful in applying to rejoin the navy. In deciding whether to allow the offender a discharge without conviction Winkelmann J considered that he had “suffered sufficient consequences to be satisfied that the essential deterrent purposes of sentencing for such an offence are met”.34
[49] Turning to the present case, I note that Mr Tawa decided to drive while disqualified on 7 November only a matter of a few months after the incident on
21 August. Mr Angelson submits that offending on 7 November clearly shows, therefore, that Mr Tawa’s injuries did not deter him from further offending. There is considerable force in this submission. While it is possible that the nature of Mr Tawa’s injuries may deter him somewhat from drink-driving in the future, they clearly did not deter him from once more driving while disqualified. The response of the Court must reflect both charges and on this basis I do not think the need for deterrence can be said to have been met by Mr Tawa’s self-inflicted injuries. In my view, the Judge did not err by failing to discount the sentence to reflect hardship already suffered by Mr Tawa.
[50] In relation to Mr Tawa’s personal circumstances Mr Pennick points to Mr Tawa’s employment and to a stable and supportive family. Mr Pennick refers to Samson where Whata J considered that a discount of 15-20 per cent would have been appropriate to reflect Mr Samson’s stable work and family life.35
[51] Mr Tawa has been able to obtain a letter of support from an employer. That employer has indicated that he will be able to provide Mr Tawa with employment on a part-time basis with the possibility of increasing this to full-time work.
Mr Pennick advises the Court that Mr Tawa’s previous employer has also been very
33 Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007, Winkelmann J.
34 At [37].
35 Samson, above n 10, at [24].
supportive and will have him back although no formal evidence of this was put before the Court.
[52] Mr Pennick also argues that Mr Tawa has a supportive and stable family life. Mr Tawa’s wife and children have provided a letter of support. That letter speaks to Mr Tawa’s work ethic and character. It details the family’s decision to distance themselves from negative influences of relatives in the Eastern Bay of Plenty. The letter also refers to Mr Tawa’s disappointment at the victims of his offending not
attending a Restorative Justice conference scheduled for 2 February 2016.36
[53] On the other hand, Mr Angelson submits that Mr Tawa is the respondent of a protection order and has numerous convictions for family violence offending. He submits that while the offending appears to have tapered off Mr Tawa should not receive discount on the grounds of a stable family life. I note that there was a domestic police call-out as recently as October 2015, but no further action was taken
and Mr Tawa’s most recent conviction for domestic violence was in 2010.37
[54] Further, any personal factors standing to Mr Tawa’s credit must be weighed against comments he made to the author of his pre-sentence report. The report states:
Mr Tawa also advised that he believed that the victim involved in the accident was at fault and that the incident resulted from this person rather than through his own actions. He suggested that the small distance he travelled justified his actions in driving while disqualified. Mr Tawa’s explanation indicates limited remorse for his actions in combination with a sense of entitlement and offending supportive attitude.
[55] Mr Tawa’s partner was in Court for the hearing of the appeal and confirmed her support for him and the productive role he plays in the family through working and caring for their children. I was impressed by her support. I would, therefore, allow a modest discount of 10 per cent to take into account personal circumstances.
[56] I deal briefly with Mr Pennick’s submission that the Court should take into account the “most unusual” circumstances which gave rise to Mr Tawa’s indefinite
36 Mr Tawa’s affidavit also expresses this disappointment.
37 Mr Tawa was convicted for common assault in 2012 but the material in front me did not identify the victim of the offending.
driving disqualification. Mr Pennick notes that had Mr Tawa’s second drink-drive offence occurred one week later he would have fallen outside the statutory five year window for an indefinite disqualification, which he has been subject to ever since. I do not see much force in this submission. It fell within the statutory window and Mr Tawa has failed to convince the relevant authorities that he should be allowed to return to the roads. Any unfairness in the circumstances is reflected in the discount I would give to Mr Tawa for personal circumstances.
Conclusion as to length of sentence of imprisonment
[57] Mr Pennick does not challenge the 20 per cent discount given by the Judge for Mr Tawa’s guilty pleas. My analysis leaves, therefore, an end sentence of 16 and a half months imprisonment. On this basis, I think the end sentence of 23 months imprisonment reached by the Judge was manifestly excessive.
[58] I am strengthened in my conclusion with reference to the case of Himiona v
Police.38 The offender in that case was sentenced to a cumulative sentence of
24 months imprisonment which included a nine month sentence for a 13th driving while disqualified conviction. The offender had a breath alcohol level of
1,520 micrograms per litre of breath. It was his fifth excess breath or blood alcohol conviction, and the convictions spanned the period 1990 to 2008. As Whata J said in Samson, this sentence must be considered at the top end.39 In my view, the offending in the present case is not at this level. It did not warrant an end sentence of
23 months imprisonment, being one month shy of the maximum penalty for the drink-driving and driving while disqualified charges.
Availability of a lesser sentence
[59] As the Court of Appeal has made clear in James v R an appeal against a refusal to grant a lesser sentence than imprisonment does not provide an opportunity
to revisit or review the merits.40 The question is whether the Judge applied an
38 Himiona v Police [2012] NZHC 1756.
39 Samson, above n 10 at [26].
40 James v R [2010] NZCA 206 at [17].
incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong.41
[60] I reproduce the paragraph in which the Judge considered the availability of home detention as an alternative to the sentence of 23 months imprisonment:42
[22] I have to then decide whether or not I should commute that to a sentence of home detention. I need to take into account the purposes and principles of sentencing and in your case, particularly deterrence, denunciation and a need to protect the community. When I bear those things in mind, it is my view that it is an inappropriate response to sentence you to home detention and you are not a suitable person to be sentenced to home detention in all the circumstances.
[61] The Judge, however, made no reference at all to the recommendation in the pre-sentence report of community detention coupled with intensive supervision. The pre-sentence report advised that Mr Tawa’s home address was not suitable for home detention, but was suitable for a community-based sentence and recommended community detention coupled with intensive supervision. Accordingly, I approach the issue as being whether the Judge erred by not substituting the sentence of imprisonment with a community-based sentence.
[62] Mr Pennick relies on the case of Tua v Police.43 In that case Mr Tua appealed against a sentence of 14 months imprisonment for driving while disqualified. It was his eighteenth conviction for that offence. Sentences of imprisonment had been imposed for previous driving while disqualified offences, but these were imposed in conjunction with sentences for more serious offences. Home detention was not a viable option in the circumstances.
[63] Woodhouse J allowed the appeal and substituted the sentence of imprisonment with one of community work. In doing so he placed emphasis on the following factors:
(a) Mr Tua had stable employment and was valued as an employee.
41 James v R at [17].
42 At [22].
43 Tua v Police [2013] NZHC 2994.
(b) Most of Mr Tua’s convictions were historic.
(c) Mr Tua had made considerable efforts to turn his life around. He had, of his own volition, moved himself and his partner away from various negative influences and managed to find gainful employment.
(d)A probation officer had mistakenly informed Mr Tua that his disqualification had ended before it actually did.
[64] Woodhouse J referred to ss 16 and 55 of the Sentencing Act which indicate that community work is appropriate in some cases as an alternative to imprisonment.
[65] The Court of Appeal has confirmed in Manikpersadh v R44 that it is an appealable error where a sentencing Judge focuses solely on deterrence in considering whether a sentence of home detention is available. The Court of Appeal observed that s 7 of the Sentencing Act requires the Court to have regard to assisting an offender’s rehabilitation and reintegration.45 The Court of Appeal further noted that s 8 requires the Court to have regard to the least restrictive outcome, the offender’s personal circumstances including his personal and family background and relevant rehabilitation.46 Thus the purposes and principles of sentencing provided in ss 7 and 8 require analysis in the round rather than emphasis on deterrence and denunciation.
[66] In my view, this is a finely balanced case. Mr Tawa has numerous previous convictions for drink-driving and driving while disqualified. He has offended again. The 7 November offending quickly followed the 21 August offending. The Courts are required to deter and denounce such conduct. Further, Mr Tawa has not demonstrated much insight into his offending. The pre-sentence report concluded that Mr Tawa indicated limited remorse for his actions in combination with a sense
of entitlement and an offending supportive attitude.
44 Manikpersadh v R [2011] NZCA 452.
45 At [15].
46 At [16].
[67] On the other hand, this was not egregious offending and Mr Tawa’s poor driving record has improved as time has gone on. Mr Tawa himself was the principal victim of his offending. Crucially, there was period of eight years and four months in which Mr Tawa was not convicted of any drink driving offences. That factor weighs heavily in Mr Tawa’s favour. Whilst the 21 August offending is serious, credit must be given for Mr Tawa’s improved track record. Moreover, Mr Tawa has advised that he is willing to undertake an alcohol and drug rehabilitation programme. None of the previous sentences imposed on Mr Tawa for drink-driving and driving while disqualified involved any rehabilitative element. He is a father to three daughters and has the support of his partner. He is able to resume employment. I place considerable emphasis on this factor as Woodhouse J did in Tua. Finally, the pre-sentence report recommends a community detention and intensive supervision.
[68] In all the circumstances, I am of the view that the Judge erred in focussing on the sentencing principles of deterrence and denunciation without balancing those principles against the need for rehabilitation and reintegration. In my view, the least restrictive outcome as required by s 8(g) of the Sentencing Act 2002 is a sentence of community detention coupled with intensive supervision. I note that the end sentence I reached is 16 and a half months imprisonment. It is a significant indulgence for the Court to allow a community-based sentence instead. Occasionally, as in Tua, strong personal circumstances will call for that indulgence. In my view, Mr Tawa just meets this standard.
Conclusion
[69] The appeal is allowed on the basis that the sentence was manifestly excessive. The sentences of imprisonment imposed on the charge of driving with excess blood alcohol and charges of driving while disqualified are quashed. I note that Mr Tawa has already served seven weeks of those sentences as bail was not sought pending appeal. The orders of disqualification are to remain as is the conviction and discharge on the careless driving charge.
[70] In place of the sentences of imprisonment, I sentence Mr Tawa to six months community detention to commence three working days after the date of this judgment to allow for Mr Tawa’s induction into the sentence.
[71] Mr Tawa is to be subject to a curfew between the hours of 9:00 pm and
6:00 am Monday to Sunday inclusive at the curfew address specified in the pre- sentence report.
[72] In addition, I also sentence Mr Tawa to 12 months intensive supervision with the following special conditions as recommended in the pre-sentence report:
(a) To attend an assessment for an alcohol and drug programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To attend an assessment for a Departmental Short Rehabilitative Programme for Men as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
……………………………….
Woolford J
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