Tinei v Police
[2012] NZHC 2003
•7 August 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000148 [2012] NZHC 2003
ELIA TINEI
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 7 August 2012
Counsel: A A Rasheed for Appellant
R Thomson for Respondent
Judgment: 7 August 2012
JUDGMENT OF ASHER J
Solicitors/Counsel:
AA Rasheed, PO Box 97 057, Manukau City, Auckland. Email: [email protected]
Crown Solicitor, DX CP24063, Auckland 1140. Email: [email protected]
TINEI V NZ POLICE HC AK CRI-2012-404-000148 [7 August 2012]
[1] On 11 November 2011, the appellant Elia Tinei was stopped while driving a motor vehicle at a Police checkpoint at Clover Park. Inquiries revealed that he had previously been forbidden to drive a motor vehicle and he was therefore failing to comply with the prohibition under s 52(1)(c) of the Land Transport Act 1998 (“the Act”). An alcohol breath test procedure was carried out and his breath was found to contain 945 micrograms of alcohol per litre of breath. His explanation was that he had no one else to pick him up after drinking.
[2] Mr Tinei had six previous convictions for driving with excess breath alcohol (“EBA”) or refusing requests for a blood specimen. He was for all intents and purposes offending for the seventh time. He was charged with driving with EBA on a third or subsequent occasion under s 56(4) of the Act. The maximum penalty is two years’ imprisonment or a fine of $6,000 and a minimum disqualification of one year. He was also charged with two counts of, being an unlicenced driver, failing to comply with a prohibition under s 52(1)(c) of the Act. The maximum penalty for that offence is a fine of $10,000.
[3] Mr Tinei appeared before Judge Wiltens on 7 May 2012 for sentencing. The Judge imposed an end sentence on him of six months’ home detention, he disqualified him from driving for a period of two years and convicted and discharged him on the other charges. This appeal is against that sentence.
The sentencing decision
[4] The Judge noted that this was the second time that Mr Tinei had been driving while forbidden and the high level of the breath alcohol reading. He noted that the position was aggravated by him driving for a second time while he was already facing a charge of driving while forbidden to do so. He noted the previous convictions omitting one of those. However, he proceeded on the correct basis that this was the seventh occasion that Mr Tinei had appeared before the Courts for driving with EBA. He also noted that on previous occasions Mr Tinei had received a final warning.
[5] The Judge observed that the pre-sentence report recommended a sentence of supervision, and stated that this did not appeal to him. He concluded that the least restrictive outcome that was available was home detention. In doing so, he bore in mind Mr Tinei’s “health considerations”.
[6] In referring to Mr Tinei’s health, the Judge undoubtedly had in mind the references to this in the pre-sentence report. The pre-sentence report was in general terms sympathetic to Mr Tinei noting that he expressed remorse and indicating that the risk of re-offending was low. The recommendation was a sentence of supervision and community detention, a recommendation that the Judge specifically was not prepared to follow.
Grounds of appeal
[7] Mr Rasheed submitted that the sentence was manifestly excessive. He accepted that a starting point of up to 18 months’ imprisonment could have been imposed, but taking into account the wide gaps between the previous offending, submitted the appropriate starting point was 12 months. Then he submitted taking into account Mr Tinei’s health and his personal home circumstances and his guilty plea, a sentence of three months home detention, or indeed supervision, was appropriate rather than the six months’ home detention imposed. He also submitted that the period of disqualification was too long in all the circumstances and should be reduced to a period of one year and six months.
[8] Mr Rasheed was also critical of some aspects of the Judge’s reasoning. He submitted that insufficient weight was given to the recommendations of the probation officer. He observed that there was no starting point fixed by the Judge or specific recognition of the guilty pleas. He submitted that the Judge was in error in observing that “it seems to me that it is inevitable that the Courts have to look up the sentencing ladder” when considering the earlier sentences.
[9] I am mindful that the starting point was two years’ imprisonment and an unlimited period of disqualification. The Judge did not carry out the R v Taueki1 process in assessing culpability to reach a starting point, then assessing the aggravating and mitigating factors relating to the offender personally, and finally in accordance with R v Hessell2 applying a discount for a guilty plea.
[10] I recognise that in traffic sentencing this approach may be cumbersome and awkward where there is no question of a sentence of imprisonment, but when imprisonment is clearly at issue it is helpful to have an analysis along those lines. Nevertheless, I also recognise that the provision of that level of detailed reasoning can pose a difficulty in a busy sentencing day.
[11] The absence of any specific reasoning means that this Court must itself try on a principled basis to discern the correct sentencing range. It must also consider comparable decisions to ensure a level of parity. In the end it will only intervene if the sentence has been shown to be manifestly excessive.3
[12] A leading decision relating to this type of offending is Clotworthy v Police4 where the High Court upheld a sentence of 12 months; imprisonment for an offender who received his eighth EBA conviction, having recorded a level of 764 micrograms per litre of breath. Wild J, after an extensive review of EBA decisions and sentencing levels for multiple EBA offending, set out 10 relevant factors that the Court could take into account.
[13] It must be recognised that in applying Taueki reasoning, the distinction between the culpability of the offending and matters personal to the offender, such as the offender’s previous record, is blurred by the fact that the offence itself requires two or more previous offences. While mindful of this difficulty I propose adopting
the Taueki approach.
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
3 Summary Proceedings Act 1957, s 121(3)(b).
4 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
[14] There are a number of factors relevant in assessing culpability. I begin with the previous convictions. As I have said, these must be considered at this point as the previous convictions are an inherent part of the culpability of this particular offence.
[15] Here there have been six previous offences, over three times the level of offending which results in the application of s 56(4). However, it is relevant to consider the lapse of time since the last driving conviction and the lapses of time between the other earlier offences.5 Mr Rasheed makes the fair point that despite the increased culpability arising from the number of convictions, they were spaced well apart. The first was in 1983, two refusal convictions in 1989, the third in 1990, the
fourth in 1996, the fifth in 2000 and the sixth in 2004. There was an eight-year gap between the present offending and the last offence. Thus, although six previous convictions shows a high degree of culpability warranting a high initial starting point, I accept as Mr Rasheed submits this assessment must be modified because of the spacing.
[16] The second factor is the amount of the excess. At two and a half times the permitted amount it is very high indeed and this adds to the culpability of the offending.
[17] The circumstances of the driving itself I consider to be relatively neutral. There was no bad driving, but I do not accept that the fact that it was claimed to have been for a short trip of about one kilometre is a particular ameliorating factor. Nor do I consider it relevant that Mr Tinei wanted to go to a funeral. He could have always done so by taxi.
[18] The final factor relevant to culpability is that Mr Tinei was prohibited from driving at the time and was facing two charges of driving while prohibited. This was a factor that increased his culpability, although only to a modest degree given that
the maximum penalty is a $10,000 fine on that charge.
5 Clotworthy v Police, above n4, at [20][b] and [c].
[19] Taking all these factors into account I accept Mr Rasheed’s submission that a
starting point of around 12 months’ imprisonment period was correct.
Discussion – the sentence of home detention
[20] I now turn to factors personal to Mr Tinei, although not including his previous driving record which I have already considered. It is relevant that he appears to be of good character and remorseful. Like the District Court Judge I do not ignore the fact that he suffers from some ill-health having suffered a minor stroke. However, I do not consider his ill-health to be at a level to be of great relevance to a sentencing process. It is no excuse, and will not make serving home detention more harsh.
[21] I also note that he is in a relatively new relationship and is now the father of young twins. I do not ignore that factor, but again it is generally the case that any sentence imposed on an offender will have some effect on the offender’s family. There is nothing before me to indicate that there will be any particular or severe detriment to his children arising from the six month period of home detention.
[22] Taking all these factors into account some modest deduction on the starting point could be warranted. Further, there should be some deduction as a final step for the guilty plea, although this also must be modest given the strength of the Crown case and that Mr Tinei does not appear to have had any conceivable defence open to him.
[23] In all the circumstances, an end sentence of imprisonment of up to nine months could have been justified if the Court had chosen to go down that route. In fact of course the Judge did not imprison Mr Tinei. The Judge referred to his ill- health and had the information before him as to his personal circumstances, and sentenced him to what he described as the least restrictive outcome available which was a six month term of home detention.
[24] Mr Rasheed submits that the correct term should have been three months, on the assumption that the right term of imprisonment would have been around six
months’ imprisonment. I do not accept that there should be a mathematical division by two of any potential sentence of imprisonment to derive the appropriate period of sentence for home detention. The Court of Appeal observed in R v Bisschop:6
While the maximum period of home detention that can be imposed (12 months) equates with the maximum period an offender sentenced to a short- term sentence of imprisonment is required to serve, it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case. Once the jurisdiction to impose home detention exists through what otherwise would have been a short-term prison sentence, then the home detention term, if granted, is to be fixed after an overall assessment of all factors relevant to the offender, and consistent with the purposes and principles of the Sentencing Act, including imposing the least restrictive sentence appropriate.
[25] Home detention, while second in the hierarchy of sentences under s 10A of the Sentencing Act 2002 is nevertheless a very different penalty to that of imprisonment. The offender is not in custody, and is able to live at home with his or her loved ones. This will be the case for Mr Tinei. He is not working at the moment so it will not interfere with his work. He is now 60 years old and while there will be undoubted inconvenience in having to stay at home, in these circumstances the sentence is not in any way comparable to imprisonment.
[26] I conclude, therefore, that the end sentence imposed of six months’ home detention was within the range. While it is more than half the likely prison sentence that would have been imposed, that does not mean it is too severe. Home detention is not a light sentence, and ranks second in the hierarchy set out in s 10A of the Sentencing Act. It is nevertheless in the circumstances in my view a relatively merciful sentence given the fact that offenders such as Mr Tinei are very often sentenced to short sharp terms of imprisonment. The Judge had undoubtedly taken cognisance of the particular mitigating factors.
[27] I have been referred to a number of other relevant decisions where on occasions for recidivist offending akin to the present, sentences of five or six
months’ imprisonment were imposed.7 In all those cases the level of EBA was lower
6 R v Bisschop [2008] NZCA 229 at [18].
7 Williams v Police HC Auckland A178/01, 14 December 2001; Bidois v Police HC Hamilton
CRI-2006-419-123, 1 November 2006; Mokotupu v Police HC Christchurch CRI-2009-409-19,
19 February 2009.
than the present case and in two the number of previous convictions was less.8 I do not consider this sentence of home detention to be out of a parity with those other decisions.
[28] Having carried out my own assessment of the correct range for sentence, I do not need to consider the other specific criticisms of the Judge’s reasons.
Discussion – the sentence of disqualification
[29] In approaching the sentence of disqualification I take into account the fact that there is an element of protecting the public. In circumstances such as this where the offender is a recidivist offender, there is in my view a justification to impose a longer sentence to protect the public for a term longer than the minimum of 12 months.
[30] The Court of Appeal has had occasion to consider sentences of disqualification in the context of offenders who are guilty of multiple driving with EBA offences. In R v Stone9 it was observed that there was not necessarily any correlation between the number of previous convictions and the length of disqualification. It was noted that quite lengthy periods of disqualification can be imposed in this area of offending.10 Among the relevant factors referred to is the need to protect the public,11 and the weight to be given to the previous convictions.12
The Court also accepted that a Judge could extend the period of disqualification to offset some leniency that was involved in imposing a comparatively short term of home detention.13 The three year period of disqualification there imposed against an eight time recidivist was upheld.
[31] I do not accept Mr Rasheed’s submission that in imposing a lengthy period of disqualification the Judge was effectively punishing the offender twice. I consider
8 Bidois v Police and Mokotupo v Police.
9 R v Stone [2009] NZCA 539.
10 At [17]–[21].
11 At [18].
12 At [19].
13 At [24].
that in the circumstances the period of disqualification, while moderately severe, was justified.
[32] I have been referred to a considerable number of comparable cases where sentences have been imposed for multiple drink drive offending.14 On occasions the period of disqualification is as low as 12 months, but on others sentences as high as an unlimited period of disqualification have been imposed. There appears to me to be no particular pattern to these decisions, and this is consistent with the conclusion reach by the Court in Stone.
Result
[33] I find that the sentence of six months’ home detention imposed by the Judge was within the appropriate range of sentencing. The period of disqualification, while moderately severe, was also within the range.
[34] The appeal is dismissed.
……………………………..
Asher J
14 Williams v Police HC Auckland A178/01, 14 December 2001; Bidois v Police HC Hamilton
CRI-2006-419-123, 1 November 2006; Mokotupu v Police HC Christchurch CRI-2009-409-19,
19 February 2009; and Fairbrother v Police HC Masterton MA16/02, 5 December 2002.
9