Te Papa v Police

[2013] NZHC 3218

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-80 [2013] NZHC 3218

BETWEEN  RAYMOND TUMARAE TE PAPA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   28 November 2013

Appearances:           M J Hine for Appellant

L Owen for Respondent

Judgment:                28 November 2013

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Rotorua

TE PAPA v POLICE [2013] NZHC 3218 [28 November 2013]

[1]      On 23 September 2013 Raymond Te Papa was convicted of driving with an excess breath alcohol proportion on 29 May 2013, an offence in the aggravated category.    He  was  sentenced  to  imprisonment  for  18  months.    He  appeals  his sentence as manifestly excessive.

[2]      Judge McGuire began by saying that the breath alcohol reading was 1070 micrograms of alcohol per litre of breath and that Mr Te Papa did not hold a current driver’s licence.  As he then said, this was Mr Te Papa’s seventh such offence and, when he had last appeared in 2011, when the reading was 788, and a community based sentence was imposed, he received a final warning.

[3]      The Judge saw that he had been allowed the benefit of three rehabilitative sentences in the past, targeting his issue with alcohol, and also accepted that he had recently obtained a certificate from Te Utuhina Manaakitanga confirming that he had completed  a  Ko  Te  Pito  program  in  an  attempt  to  face  up  to  his  dependency. However, the Judge said, nothing had changed since 2011 and, on the night of this most recent offence when he was apprehended on a major road, he was a risk to public safety. The final warning had to be given literal effect.

[4]      Taking into account that Mr Te Papa’s most recent offence had been within two years, and that this was his seventh such offence and that rehabilitation had failed, the Judge took as his starting point the maximum term for the offence, two years imprisonment.  He allowed Mr Te Papa a 25 per cent credit for his early plea and imposed the sentence under appeal.

[5]      On this appeal, Mr Te Papa contends, and counsel for the police accepts, the starting point the Judge felt obliged to take is reserved for the most serious category of serial offending; and serious though this offending was, it was not in that category. The sentence imposed, it is common ground, is inconsistent with that upheld or imposed in this Court on appeal for similar offending.

[6]      In Clotworthy v Police,1  to take the most well known example, where 17 comparable appellate decisions were reviewed, Wild J imposed a sentence of 12 months imprisonment for an eighth offence set against ten considerations.

[7]      As was later said in R v McQuillan2 in the Court of Appeal, sentencing is not an exact science because offenders and offending vary so widely.   But the factors Wild J identified are useful indicia against which to assess the relative seriousness of the offending for sentence.

[8]      In the recent case, Toetoe v Police,3 a 12 month sentence was substituted on the appeal where, just as here, Judge McGuire had imposed an 18 month sentence from the maximum starting point.   Brewer J set out in that case the ten factors identified  by Wild  J  and,  in  a  general  sense,  this  case  comes  within  the  same compass.

[9]      There the breath alcohol was 692 micrograms, whereas here it was 1070 micrograms.  There the last offence had been two years, 10 months before.  Here it is two years, three months before.  There the previous convictions spanned 23 years. Here they spanned 32 years.   There, there was a ten year gap before offending recommenced.  Here there was a 17 year gap.

[10]     There the driving was unexceptional, as it is here.  The driver was unlicensed, as was so here.  Here, as there, a plea was entered at the earliest point.  There the appellant had been imprisoned for his drink, driving convictions.  Here, for his first five convictions, between 1981  – 1994, the appellant was sentenced  at most to periodic detention.

[11]     There the offender had a long list of other convictions, as does this appellant. There the appellant showed genuine remorse and had taken some initial steps.  That is  evidently  so  here.     There  the  appellant  had  only  just  obtained  fulltime

employment.  Here the appellant has employment and is valued.

1      Clotworthy v Police (2003) 20 CRNZ 439.

2      R v McQuillan CA129/04, 12 August 2004.

3      Toetoe v Police [2013] NZHC 2686.

[12]     In that case, after an analysis of comparable cases, Brewer J considered that a starting point in the range 16 – 18 months imprisonment was justified and allowed the appellant that at the lower end of the range, 16 months, before allowing him a 25 per cent credit for plea.

[13]     In this case, counsel accept and I agree, by a broadly comparable analysis, Mr Te Papa’s sentence does exceed what his offence requires and must be reduced by an equivalent measure.  I allow his appeal.  I too take a 16 month starting point and, by allowing him the credit for plea the Judge allowed, impose instead a sentence of

imprisonment of 12 months.

P.J. Keane J