Toluono v Police HC Auckland CRI 2010-404-38

[2010] NZHC 1010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-000038

PATRICK CRAIG TOLUONO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 March 2010

Appearances: A Steedman for the Appellant

P Singh for the Respondent

Judgment:      31 March 2010 at 4:30 pm

JUDGMENT OF WYLIE J [Appeal against sentence]

This judgment was delivered by Justice Wylie on 31 March 2010 at 4:30pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

A Steedman, P O Box 7728, Wellesley Street, Auckland 1141

Crown Solicitor, P O Box 2213, Auckland 1140

P C TOLUONO V NEW ZEALAND POLICE HC AK CRI 2010-404-000038  31 March 2010

[1]      On 4 November 2009, Mr Toluono pleaded guilty to, and was convicted, of driving with excess breath alcohol pursuant to s 56(1) of the Land Transport Act

1998.  He was sentenced on 16 December 2009 by Judge T H Everitt in the District Court at  Auckland  to  18  months’  imprisonment  with  both  standard  and  special conditions to terminate six months after termination of his sentence.   The special conditions required Mr Toluono to undertake alcohol treatment counselling and any other counselling programme as directed to the satisfaction his Probation Officer. Mr Toluono was also disqualified from holding or obtaining a motor vehicle driver’s license for a period of three years.

[2]      Mr Toluono has appealed the sentence on the basis that the sentence was manifestly excessive.  The notice of appeal is dated 25 January 2010.  It was filed on

8 February 2010.

Background facts

[3]      At about 11:30 pm on 18 July 2009, Mr Toluono was driving on George Street in Auckland City.  He was stopped on an unrelated traffic matter and breath testing procedures were carried out.   A subsequent evidential breath test recorded that a sample of Mr Toluono’s breath contained 744 micrograms of alcohol per litre of breath.  In explanation, Mr Toluono stated that he had had about five or six beers earlier in the evening.

[4]      Mr Toluono was charged with driving with excess alcohol as a third or subsequent offence.  He pleaded guilty at a Court appearance on 6 November 2009 and  was  remanded  on  bail  for  sentence.     As  noted,  he  was  sentenced  on

16 December 2009.

[5]      Mr Toluono is a 34-year-old Maori male who was formerly employed as a part-time furniture remover.   He suffers recurrent back pain.   He is living on a sickness benefit, although I was advised that he has been carrying out light work as referred to him by Work and Income.  He has two children, one aged four years and one aged 13 months.   They reside with their mother, but Mr Toluono maintains regular contact with them.  I am told that he has been addicted to alcohol from the

age of 12 years.   His mother appeared in Court at the hearing of the appeal.   I allowed her to address me.  She advised that she was an alcoholic.  She underwent a residential treatment programme and has now been in recovery for several years. She is confident that her son will be assisted by rehabilitation programmes and advised me that he has already attended a number of events with her and enthusiastically participated in them.

[6]      Mr Toluono  has  many  previous  convictions,  predominantly  for  alcohol- related  and  traffic  offences,  but  also  for  common  assault,  theft,  burglary  and breaches of community-based sentences  The last driving with excess breath alcohol conviction prior to the offence here in issue was on 2 November 1999.   On that occasion, he was sentenced to nine months’ imprisonment and was granted leave to apply for home detention.  I also note that he was sentenced to a term of six months’ imprisonment in May 2003 for driving while disqualified as a third or subsequent offence and refusing a Police officer’s request for blood.

[7]      Mr Toluono has acknowledged his alcohol addiction, and sought help from community alcohol services.   He attended an appointment at Community Alcohol and Drug Services on 24 July 2009, and was transferred to the Te Atea Marino Service as a result of that interview.  He attended the Te Whare Tapa Wha alcohol and  drug  programme  and  has  graduated  from  that.    I  am  advised  by  counsel appearing for Mr Toluono — Mr Steedman — that Mr Toluono went on to complete

32 hours of counselling, and that he intended to attend further ongoing sessions prior to the present sentence being imposed.

[8]      I  received  a  number  of  letters  from  family  members.    All  attested  to Mr Toluono’s good character and to his desire to come to terms with his alcohol addiction.

The District Court judgment

[9]      Judge Everitt noted that from the records given to him, Mr Toluono had a number of previous convictions for excess alcohol related offending for driving while disqualified, and for breach of community-based sentences.  He noted that the

Probation Officer had recommended community detention and counselling as an alternative  to  imprisonment.    He  expressed  the  view  that  such  alternative  was “totally and utterly inappropriate for a man who is a public menace and an uncontrolled alcoholic”.

[10]     The Judge noted that Mr Toluono had driven in the face of all of his previous history of driving with excess alcohol, indefinite disqualifications and driving whilst disqualified.   He noted that the message did not appear to be getting through to Mr Toluono, and that sooner or later, his driving was likely to kill an innocent bystander.   He expressed the view that Mr Toluono was “getting close to the maximum possible sentence to impose — and that is two years’ imprisonment”.  He recorded that Mr Toluono could have pleaded guilty at an earlier stage on 14 August

2009, but did not plead guilty until 6 November 2009.   His Honour went on to comment that to refuse Mr Toluono any benefit from a plea of guilty, and his acknowledgement of his wrong-doing, would be harsh.   He nevertheless indicated that he was not prepared to allow him a full one-third discount.

[11]     His  Honour  adopted  a  starting  point  of  two  years’  imprisonment,  but convicted and sentenced Mr Toluono to a term of imprisonment of 18 months, with the standard and special conditions noted above.  .  He also disqualified Mr Toluono from holding or obtaining a motor vehicle driver’s license for three years.

The appeal

[12]     Mr Steedman in his written submissions recorded that Mr Toluono did not appeal his sentence of imprisonment.  I was advised that he appealed only against the Judge’s refusal to grant leave to apply for home detention.

[13]     The  provisions  relating  to  leave  to  apply  for  home  detention  have  been repealed, with the introduction of home detention as a sentence in its own right under subpart 2A of Part 2 of the Sentencing Act 2002.  A Judge no longer decides whether leave to apply to the Parole Board for home detention should be granted.  Rather, he or she has jurisdiction to impose a sentence of home detention instead of imprisonment.

[14]     I have treated the appeal as being an appeal against the Judge’s decision not to impose a sentence of home detention  under s 80A(1) of the  Act,  instead of sentencing Mr Toluono to imprisonment.

[15]     There is one other preliminary issue.  The notice of appeal was only filed on

8 February 2010.  It should have been lodged within 28 days of sentencing.  It was out of time.   I have power to allow an extension of time under s 123(1) of the Summary Proceedings Act 1957.

[16]     Mr Steedman seeks an extension.   He advised that the appeal was delayed because of the intervention of Christmas holidays and his busy schedule.  Ms Singh for the Crown does not oppose the grant of leave.  In the circumstances, in my view it is appropriate to extend the time within which the appeal was required to be filed, and I so order.

Submissions

[17]     Mr Steedman submitted that the sentence of imprisonment was manifestly excessive — albeit at the “lower end” of the range of manifestly excessive sentences. He  referred  to  s  8(h)  of  the  Sentencing  Act,  to  Mr  Toluono’s  particular circumstances, and to the pre-sentence report.

[18]     When interviewed by the Probation Service, Mr Toluono offered no excuse for his offending, and indicated his desire to stay out of trouble and to change his lifestyle.   The report went on to record Mr Toluono’s disappointment that he was again before the Court, but noted that he continues to engage with the Te Atea Marino Service in further efforts to control his alcohol abuse.   The report acknowledged that Mr Toluono is at medium risk of re-offending, but observed that he had made constructive efforts to address his alcohol consumption.  A sentence of community sentence  coupled  with  supervision  was  recommended,  to  enable Mr Toluono to address his alcohol abuse.

[19]   Mr Steedman referred me to various authorities where the Courts have commented on the advantages of home detention.  He submitted that home detention

is more cost effective than imprisonment, provides greater rehabilitative prospects for offenders, and offers better prospects for community and family reintegration.

[20]     Mr Steedman referred me specifically to cases which involve sentencing for breath or blood-alcohol related offending — in particular, Ministry of Transport v Graham[1]  and Clotworthy v Police.[2]    He submitted that it was appropriate to grant home detention in this case because Mr Toluono’s personal circumstances and his desire for rehabilitation fit in with the objects of home detention, and provide greater rehabilitative prospects for him than if he were merely to serve a term in prison.  He submitted that if he is kept in prison, Mr Toluono will not learn valuable life skills and  get  the  treatment  he  needs  to  recover  from  his  alcohol  addiction.    It  was

submitted that without rehabilitation and treatment, Mr Toluono is unlikely to be able to succeed in trying to rehabilitate himself.  Further, it was submitted that Judge Everitt should not have taken a restrictive view of the home detention provisions, and that Mr Toluono’s recent behaviour has “lacked the intensity of offending that would have of itself left the Court with no other option than to impose a custodial sentence and not consider home detention”.

[1] [1990] 3 NZLR 249 (HC).

[2] (2003) 20 CRNZ 439 (HC).

[21]     Ms Singh for the Crown submitted that the sentence imposed was neither manifestly excessive nor wrong in principle, and that there are no exceptional circumstances calling for a revision of the sentence if reference is made to the purpose and principles of the Sentencing Act.   Specifically, she submitted that a sentence of imprisonment was not manifestly excessive given Mr Toluono’s criminal history, in particular for offending of the kind here in question, and that his rehabilitative needs can be addressed in prison.  She referred me to s 7(a), (b), (e), (f), (g) and (h), and to s 8(a), (b), (c), (d), (e), (g), (h) and (i) of the Sentencing Act. She submitted that this is a case where deterrence and denunciation are more important than rehabilitation.

Analysis

[22]     First, I note that this is an appeal against sentence under s 121(3) of the

Summary Proceedings Act.  That subsection provides as follows:

(3)In the case of an appeal against sentence, the High Court may— (a)         Confirm the sentence; or

(b)If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)Quash  the  sentence  and  either  pass  such  other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      Quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)      Vary,   within   the   limits  warranted   in  law,  the sentence or any part of it or any condition imposed in it.

[23]     Here it is not suggested that Judge Everitt had no jurisdiction to impose a sentence of imprisonment.  Nor is it suggested that substantial facts relating to the offending, or to Mr Toluono’s character or personal history, were not before the Judge.  Rather it is submitted that a sentence of imprisonment imposed was clearly excessive, or inappropriate.

[24]     The penalty for third or subsequent excess breath or blood-alcohol offences under s 56(4) of the Land Transport Act is a maximum of two years’ imprisonment, or a $6,000 fine, plus a minimum of one year and one days’ disqualification.  The maximum sentence appropriate for such offending was increased by Parliament in

1998.  The Select Committee, in reporting back to Parliament, noted that drinking

and driving is generally condemned by society as high-risk behaviour, and that it places innocent parties in grave danger.

[25]     This  has  been  recognised  by  the  Court.     Drink  driving  offences  are considered to be a moderately serious form of offending.

[26]     In Clotworthy, Wild J set out various factors that the Court should consider when sentencing repeat excess breath/blood alcohol offenders.   It is not a tariff judgment,  but  it  nevertheless  provides  guideline  assistance.     That  has  been recognised by the Court of Appeal on a number of occasions.  Relevant factors when sentencing in relation to multiple excess breath or blood-alcohol offending identified by Wild J include the following:

a)        the breath or blood-alcohol level;

b)the  length  of  time  that  had  elapsed  since  the  last  drink  driving conviction;

c)        the manner of driving;

d)       license status;

e)        the plea;

f)        previous sentences and responses;

g)        record for other offending;

h)        expressed remorse; and

i)         mitigating personal or family circumstances.

[27]     Here, Mr Toluono’s conviction was his 13th conviction for driving with excess breath or blood-alcohol.   Those convictions started in 1993.   His breath alcohol reading was almost twice the legal limit.  The offending was revealed when

he was stopped on an unrelated traffic matter.  I am told by Ms Singh that he was stopped  for  driving  with  a  sustained  loss  of  traction.    Mr  Toluono  was  not disqualified at the time, but he had only finished an earlier period of disqualification some 10 months before the offending for driving while disqualified.  Moreover, the sentence imposed in 2007 carried a final warning.   Mr Toluono initially entered a plea of not guilty.  He vacated that plea, and entered a guilty plea some two and a half months after his first appearance.   Mr Steedman explained the circumstances and I return to this below.  He has a formidable criminal record, and the Courts have over the years   imposed the full gamut of sentences available, ranging from community-based sentences through to custodial sentences.   Mr Toluono has expressed some remorse, and I accept that he has taken steps to try and deal with his alcohol addiction.  He also has a young family.

[28]     Notwithstanding Mr Toluono’s remorse and personal circumstances, in my view,  Judge  Everitt  did  not  err  in  the  views  he  expressed  in  relation  to  the seriousness of this type of offending, or the gravity of Mr Toluono’s particular offending  and  culpability.    He  was  entitled  to  take  these  matters  into  account pursuant to s 8(b) and (c) of the Sentencing Act.

[29]     Judge Everitt took as a starting point a term of imprisonment of two years. That is the maximum sentence available.

[30]     Section 8(c) and (d) of the Sentencing Act provide that the Court:

(c)       must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

(d)       must  impose  a  penalty  near  to  the  maximum prescribed  for  the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate ...

[31]     I have considered various authorities referred to me by counsel, including

Wilson v Police[3]  and McKinlay v Police.[4]    Mr Toluono’s case did not involve an

extreme breath alcohol reading.  His reading was however high, and clearly he was a recidivist offender.  As was noted by Panckhurst J in McKinlay at [18], there comes a point when recidivism and a moderate to high alcohol level is sufficient to place a case within the most serious of its kind.

[3]  [2006] DCR 655 (HC).

[4] HC Christchurch CRI-2006-409-116 7 August 2006.

[32]     In  the  present  case,  and  as  Judge  Everitt  identified,  Mr  Toluono  had numerous previous convictions between 1993 and 2009, including 12 previous convictions for driving with excess breath or blood-alcohol, and 16 offences for driving while disqualified.  In my view, the Judge was entitled to take the view that the recidivist nature of Mr Toluono’s driving-related offending, in combination with the offending before the Court, brought his case within the most serious case of its kind.  He was entitled to take maximum sentence as his starting point, and there were no circumstances relating to Mr Toluono which make it inappropriate to do so.

[33]     Ms  Singh  cited  to  me  a  number  of  authorities  to  persuade  me  that  the sentence was not disproportionate to that imposed in other cases.  I have considered the authorities she referred me to.   All involved sentencing where there had been previous multiple breath or blood alcohol-related offending.  Each turns on its own facts; however, in each case, a term of imprisonment was imposed.  In a number of the cases, the Court noted that home detention was not an option, and leave to apply for home detention was declined.  In other cases it was granted.  I am satisfied that it is not uncommon for offenders with numerous previous convictions for breath or blood alcohol relating offending to be sentenced to imprisonment and that Judges in this Court have consistently upheld sentences of imprisonment of 15 months or more for offending of this kind.  I also note the observations of the Court of Appeal in R v

McQuillam,[5] where it was stated that imprisonment was clearly now the usual, if not

necessarily the inevitable consequence of such recidivist offending.

[5] CA129/04 12 August 2004 at [20].

[34]     The Judge did allow a discount for Mr Toluono’s guilty plea.  Pursuant to the guidelines in R v Hessell,[6]  a guilty plea entered at the first reasonable opportunity warrants a 33 per cent reduction in sentence.   A guilty plea entered at a status hearing or first callover warrants a 20 per  cent reduction in sentence.   Despite

Mr Steedman’s submissions to the contrary, here I am not persuaded that the guilty plea  was  at  the  first  reasonable  opportunity.     Initially  Mr  Toluono  was  not represented by counsel.   He was, however, represented by counsel on 31 August

2009 and he entered a plea of not guilty.  There were alternatives available to him at that stage, for example, seeking a remand without plea pending disclosure by the Police.  He did not take advantage of those alternatives.  The plea of guilty was not entered until 6 November 2009.

[6] [2009] NZCA 450 at [15].

[35]     Judge  Everitt  did  not  separately  identify  the  discount  he  considered appropriate, but clearly he allowed a discount of 25 per cent from his starting point. That cannot be said to be outside the norm.

[36]     I now turn to the crucial issue on the appeal — whether or not the Judge should have ordered home detention.  The key issue is whether the circumstances of this  case  call  for  denunciation  and  deterrence  under  s  7(1)(e)  and  (f)  of  the Sentencing Act, or whether rehabilitation and reintegration should be preferred under s 7(1)(h).

[37]     I note Mr Steedman’s submission that imprisonment should only be imposed as a penalty of last resort, given ss 7(h), 8(g) and 10A of the Act.

[38]     A sentence of home detention is available to the Court where:

a)        the offender is convicted of an offence punishable by imprisonment

(s 80A(1)(a));

b)the Court is satisfied that the purpose of the sentencing cannot be achieved by any less restrictive sentence or combination of sentences (s 15A(1)(a)); and

c)       the Court would otherwise impose a short term of imprisonment (up to 24 months — see definition of “Short-term sentence” in s 4 of the Parole Act 2002, and s 15A(1)(b)).

[39]   There is no prevailing presumption in favour of home detention if the end

sentence is 24 months or less.   Whether it is appropriate depends upon the circumstances of the case — see R v Stacey[7]  — and I accept that rehabilitative considerations can be an important factor in determining whether to sentence of home detention — see R v Hill.[8]   I also accept that Mr Toluono has made genuine efforts to deal with his alcohol addiction.  That is to be applauded.

[7] [2008] NZCA 465 at [21].

[8] [2008] 2 NZLR 381 at [37] and [39].

[40]     Judge Everitt had considered home detention as a sentencing option.   He expressly referred to the pre-sentence report, and declined to accept it.

[41]     In my view, the Judge was entitled to take that view.   The gravity and seriousness of Mr Toluono’s offending, the need to hold him accountable and to promote in him a sense of responsibility for his offending, the need to denounce repeat offending of this type and the need to deter recidivist offenders from such offending outweighed rehabilitative considerations.  Indeed, I consider that the Judge was correct to decide that home detention was not appropriate, and would not serve as  a  sufficient  deterrent  and  denunciation.    The  community  would  be  rightly affronted were a sentence of home detention to be imposed in such a case.

[42]     Further, and in any event, treatment that is directed to his rehabilitation can be made available to Mr Toluono.   To that end, I record that it would be highly desirable for appropriate treatment to be made available to Mr Toluono while he is in prison, and I direct that a copy of this judgment be made available to the Department of Corrections so that it can endeavour to arrange for the appropriate treatment.

[43]     Having considered the matter in the round, I have decided that the sentence imposed was neither clearly excessive, nor inappropriate.  The Judge turned his mind to the option of home detention, and considered that it was inappropriate.   I agree with his assessment.

Wylie J