Toetoe v Police HC Rotorua CRI 2010-463-586

[2010] NZHC 2270

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-586

MARK MALONE TOETOE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 December 2010

Appearances: Mrs N Scott for Appellant

Ms L Owen for Respondent

Judgment:      15 December 2010

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors/Counsel: Crown Solicitor, Rotorua Mrs N Scott, Rotorua

TOETOE V NEW ZEALAND POLICE HC ROT CRI-2010-463-586  15 December 2010

[1]      Mr Toetoe pleaded guilty at an early stage in the District Court to charges of driving with excess breath alcohol, obstruction of a police officer and behaving in a threatening manner in a public place.

[2]      His   Honour   Judge   McGuire   sentenced   Mr   Toetoe   to   six   months imprisonment  on  the  charge  of  driving  with  excess  breath  alcohol  and  to  a cumulative sentence of one month’s imprisonment on the charges of obstruction and threatening behaviour.

The facts

[3]      The events that gave rise to the charges are contained in two summaries of fact that are not the subject of any dispute.

[4]      Mr Toetoe was stopped at about 2.43 am on Sunday 8 August 2010 at a police checkpoint on State Highway 5, Main Road, Ngongotaha.  When the breath testing procedures were carried out, the evidential breath test gave a positive reading of 741 micrograms of alcohol per litre of breath.   This gave rise to the charge of driving with excess breath alcohol.

[5]      The other charges arose out of events that occurred shortly after the police had carried out the breath testing procedures.  After the police had processed him on the charge of driving with excess breath alcohol, Mr Toetoe demanded that they transport him to his home address.  When they declined to do so, he became angry and began to make threats that he would harm a member of the public if he was not taken home.

[6]      The  police  then  transported  him  to  his  vehicle  to  retrieve  his  personal property.  He reiterated his threat to harm a member of the public, and he refused to leave the patrol vehicle.   This caused some inconvenience to the officer who was dealing with Mr Toetoe, because he had received orders to carry out another task by this point.  He was unable to do so, because Mr Toetoe refused to leave the patrol vehicle.  Mr Toetoe was arrested after he had refused to get out of the patrol vehicle notwithstanding being given several warnings about his behaviour.

[7]      In  explanation  for  driving  that  night  Mr  Toetoe  said  that  he  had  been involved in a violent incident, and had driven away from that incident in order to escape the violence.   He was not driving his own vehicle at the time that he was apprehended.

Grounds of appeal

[8]      In  support  of  the  appeal  counsel  for  Mr  Toetoe  makes  three  broad submissions.  First, she contends that the Judge ought to have considered a sentence of home detention rather than a sentence of imprisonment.  Secondly, she submits that the starting point that the Judge selected was too high.  Thirdly, she contends that  the  Judge  should  not  have  imposed  a  cumulative  sentence  of one  month’s imprisonment on the charges of obstruction and threatening behaviour.

Home detention

[9]      When  Mr  Toetoe  was  sentenced,  counsel  who  then  appeared  for  him submitted that sentencing should be deferred so that Mr Toetoe could have the possibility of a sentence of home detention investigated.   This would involve the nomination and investigation of an address at which Mr Toetoe would serve any sentence of home detention.

[10]     The Judge declined to defer sentencing, principally on the basis that counsel for Mr Toetoe had already had sufficient time to investigate the possibility of home detention.  The Judge also said, however, that home detention was inappropriate in the circumstances, because he had already received a suspended sentence of imprisonment on a charge of driving with excess breath alcohol back in 2001.  The Judge took the view that, having already received the benefit of a suspended term of imprisonment, it was inappropriate now for Mr Toetoe to be given a sentence of home detention.

[11]     Counsel for Mr Toetoe accepts that the Judge had a discretion as to whether or not to impose a sentence of home detention.  She submits, however, that several factors pointed in favour of that sentence being appropriate. First, there is the fact

that Mr Toetoe has never served a sentence of home detention before.   Secondly, although he has no fewer than six previous convictions for driving with excess breath alcohol, the last conviction was some nine years ago and the previous conviction before that was ten years earlier.  This means that this is only his third conviction in 19 years.  For these reasons, counsel submits that a sentence of home detention was a realistic possibility in the present case, and that the Judge should have deferred sentencing so that that sentence could be further investigated.

[12]     I accept that it would have been open to the Judge to defer sentencing for that purpose.  I am not, however, satisfied that he erred in principle when he declined to grant an adjournment so that it could be done.

[13]     Several factors militated against any sentence of home detention.  First, there is the fact that Mr Toetoe was appearing for sentence on his seventh charge of driving with excess breath alcohol.  His reading of 741 micrograms of alcohol per millilitre of breath was relatively high.  That has been the case in relation to all of his previous convictions.   On one occasion, in fact, his reading was over 1000 micrograms of alcohol per litre of breath.

[14]     Secondly, Mr Toetoe has already served two sentences of imprisonment for driving with excess breath alcohol.  These were imposed in relation to offending that occurred on 30 December 1990 and 8 January 1991.   On the first occasion he received a sentence of six weeks imprisonment.  On the second occasion he received a sentence of two months imprisonment.  Then, on 20 December 2001, he received the suspended sentence of nine months imprisonment on a charge of driving with excess breath alcohol on 15 November 2001.

[15]     I consider that Mr Toetoe was probably fortunate to receive a suspended sentence in 2001.  The fact that he has offended again, albeit nine years later, means that sentences short of imprisonment are virtually ruled out from this point on.

[16]     For  these  reasons  I do  not  consider  that  the  Judge  was  wrong when  he concluded that the earlier suspended sentence effectively operated to preclude him from a sentence of home detention on this occasion.

[17]     Allied to this is the fact that in very recent times, namely between February

2008 and February 2010, Mr Toetoe has been convicted on no fewer than five occasions of breaching community work or breaching the conditions of his supervision.   This does not provide a helpful indicator towards likely compliance with a sentence of home detention if it was to be imposed.

Starting point

[18]     The next issue is whether the starting point that the Judge selected was too high.  The Judge selected an effective starting point of nine months imprisonment. He said that the starting point would have been 12 months but for the fact that the most recent offending was of some antiquity.  He then reduced that starting point by three  months  to  reflect  the  guilty plea,  leaving  an  end  sentence  of  six  months imprisonment.

[19]     Counsel for the respondent has helpfully provided me with three authorities in which this Court has considered appeals against sentences of imprisonment imposed on persons who had five or more previous convictions for driving with excess  or  blood  alcohol:    Marshall  v  Police  HC  Hamilton  CRI  2009-419-82,

12 February 2010; Rogers v Police HC Rotorua CRI 2007-463-6, 14 February 2007; Bidois v Police HC Hamilton CRI 2006-419-123, 1 November 2006..  These cases show that sentences of between six and eight months imprisonment have routinely been upheld by this Court as being within the available range.  This means that, even if I may have selected a lower starting point myself, the end sentence of six months imprisonment is well within the range.

[20]     Moreover, this Court is not concerned on appeal with the manner in which sentences are constructed.  It is the end sentence that is the critical fact in each case. I do not consider that an end sentence of six months imprisonment could possibly be said to be outside the range that was available to the Judge.

Cumulative sentence

[21]     The final issue is the cumulative sentence of one month’s imprisonment that the Judge added for the charge of threatening behaviour.   Counsel for Mr Toetoe submits that this offending was really part and parcel of the offensive driving with excess breath alcohol.   For that reason, she contends that the Judge should have imposed a concurrent sentence, and not increased Mr Toetoe’s sentence any further to reflect this charge.

[22]     It would, of course, have been open to the Judge to take the view that this offending was tied up with the breath alcohol offending.  I consider, however, that he was also entitled to view the charges of obstruction and threatening behaviour as comprising discrete conduct warranting an additional sentence.  It occurred after Mr Toetoe had stopped driving.  It involved a relatively prolonged incident.  The police gave Mr Toetoe numerous warnings to get out of their vehicle so that they could attend to other business.  It had elements of seriousness about it given the fact that he was threatening to harm members of the public if the police did not drive him home.

[23]     Viewed overall, I consider that the Judge was entitled to regard this offending as being more than conduct that might ordinarily be associated with the processing of an intoxicated person for driving with excess breath alcohol.   For that reason I consider that he was entitled to recognise these charges by applying an uplift to the sentence that he imposed on the charge of driving with excess breath alcohol.

Result

[24]     The appeal against sentence is dismissed.

Lang J