Toetoe v Police - [2013] NZHC 2686

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-66 [2013] NZHC 2686

BETWEEN MARK TOETOE Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 October 2013

Counsel:

GAM Schweizer for Appellant
N Tahana for Respondent

Judgment:

15 October 2013

JUDGMENT OF BREWER J

Solicitors/Counsel: GAM Schweizer (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent

TOETOE v POLICE [2013] NZHC 2686 [15 October 2013]

[1] Mr Toetoe appeals his sentence of 18 months’ imprisonment handed down by Judge CJ McGuire in the District Court at Rotorua on 23 September 2013.1 The sentence was imposed as a consequence of the appellant’s eighth conviction for driving with excess breath alcohol. In this case, the appellant was stopped on a routine vehicle check on 6 June 2013. He was found to have a breath alcohol reading of 692 micrograms of alcohol per litre of breath.

[2] The District Court Judge decided that, having regard to the appellant’s record, he should adopt a starting point of two years’ imprisonment. That is the maximum term of imprisonment provided for by the statute. The District Court Judge allowed a 25% discount for the appellant’s early plea of guilty. In addition, the appellant was disqualified from holding or obtaining a driver’s licence for a period of 18 months, and the District Court Judge ordered general and special release conditions to apply for six months.

[3] The appeal is brought on the ground that the sentence is manifestly excessive. Counsel for the appellant, Mrs Schweizer, develops this ground in careful and cogent submissions. I will come back to them shortly.

[4] I note at this point that the only factor relevant to the appellant’s actual driving on this occasion is that he did not have a current driver’s licence. He had lost his licence for previous offending and had not re-applied, although he was eligible to do so.

[5] The appellant’s criminal record is of obvious relevance. The appellant is

44 years old and his record commencing in 1984 is quite extensive. His convictions for excess breath alcohol were in respect of offending which took place in 1987,
1988, 1990 (x2), 1991, 2001 and 2010. He was sentenced to short terms of imprisonment for the 1988, 1990 (both occasions), 1991 and 2010 offending.

[6] Other driving related offending includes 15 convictions for driving while disqualified entered from 1987 to 2011.

[7] On the occasion of his sentence on the current offence, the appellant could point to a dawning realisation of the problem he has with alcohol, as evidenced by positive progress reports on his drug and alcohol counselling. He had acquired his first job in 20 years and this position is still open to him. The pre-sentence report recommends community detention and intensive supervision.

[8] An appeal against sentence proceeds by way of rehearing. That means I have to look at all of the circumstances of the appellant’s offending but I will not disturb the District Court Judge’s sentence unless I find that he fell into error which resulted…

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: [2013] NZHC 2686
Decision Date: 15 October 2013

CaseChat Overview and Summary

In the case of Toetoe v Police, the appellant, Mark Toetoe, appealed against his sentence of 18 months’ imprisonment imposed by Judge CJ McGuire in the District Court at Rotorua. Toetoe was sentenced following his eighth conviction for driving with excess breath alcohol, with a breath alcohol reading of 692 micrograms of alcohol per litre of breath. The District Court Judge set a starting point of two years’ imprisonment, applying a 25% discount for Toetoe's early plea of guilty. In addition, Toetoe was disqualified from holding or obtaining a driver’s licence for a period of 18 months, and general and special release conditions were imposed for six months.

The appeal focused on whether the sentence was manifestly excessive. Counsel for the appellant argued that the District Court Judge erred in setting the starting point at two years’ imprisonment, which is the maximum sentence available for this offence. It was also argued that the District Court Judge failed to give credit for Toetoe's genuine remorse and steps towards rehabilitation, as well as not following the principle of imposing the least restrictive sentence appropriate. Counsel for the respondent accepted that the District Court Judge erred in setting the starting point, but argued that a sentence of imprisonment was required by law.

The High Court considered relevant case law and the factors identified by Wild J in Clotworthy v Police, concluding that a starting point of 16 months to 18 months’ imprisonment was justified. The court agreed with the District Court Judge that Toetoe's steps towards rehabilitation were too little and too late and should not be given weight in his sentencing. The appeal was allowed, and the sentence of 18 months’ imprisonment was quashed, with a sentence of 12 months’ imprisonment being substituted. The period of disqualification from holding or obtaining a driver’s licence was extended to 18 months, and the general and special release conditions imposed by the District Court Judge were adopted.

Orders