Tui v Police

[2020] NZHC 635

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-42

CRI-2019-488-43 [2020] NZHC 635

BETWEEN

EUGENE JAMES TUI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 March 2020
Counsel:	D J Watkins for Appellant M B Smith for Respondent
Judgment:	24 March 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 March 2020 at 4:00 pm

Registrar/Deputy Registrar

Solicitors:

Watkins Law (Kaikohe) for Appellant

Marsden Woods Inskip & Smith (Whangarei) for Respondent

TUI v POLICE [2020] NZHC 635 [24 March 2020]

Introduction

[1]                Mr Tui appeals his sentence of 15 months’ imprisonment imposed on him by Judge DG Harvey on 21 November 2019.1 Mr Tui submits the sentence is manifestly excessive.

[2]                I will examine the circumstances relevant to Mr Tui’s sentence to see whether Judge Harvey was in error such that a different sentence should be substituted.

Background

[3]                Mr Tui has a bad record of driving under the influence of alcohol and driving while disqualified. He is a man of mature years having been born on 28 April 1976. He came before Judge GL Davis on 5 July 2019 for sentencing on his seventh drink driving conviction. He was also before Judge Davis for sentencing on his seventh and eighth charges of driving whilst disqualified.2 The eighth such charge arose from driving while he was on bail for the seventh such charge.

[4]                Judge Davis recognised that with this record of persistent offending, and with the failure of previous sentences of imprisonment or electronic monitoring to deter or rehabilitate, he had few options available to him. The Judge said:

[19]  The thing that is going to save you today is that there is available to  you the alcohol interlock device. I am hopeful that a combination of a sentence that locks you down and has conditions there about non-consumption of alcohol, coupled with the alcohol interlock device on the car is going to provide the appropriate public safety to the Court’s satisfaction.

[5]                The Judge  adopted  a  starting  point  of  28 months’  imprisonment,  being 12 months’ on the drink driving charge plus 16 months’ imprisonment for the two driving whilst disqualified charges. The Judge gave Mr Tui a reduction of 25 percent for his pleas of guilty, making an end sentence of 21 months’ imprisonment. The Judge then commuted that sentence to one of 10 months’ home detention. Conditions attached to that sentence included a prohibition on possessing or consuming alcohol.

1      Department of Corrections v Tui [2019] NZDC 23471.

2      Police v Tui [2019] NZDC 13064.

[6]                Mr Tui lasted on home detention until 24 September 2019. On that date he removed his bracelet and absconded. He surrendered to police some two days later. Alcohol featured in the absconding from home detention. All that Judge Harvey did was take Mr Tui’s sentence back to the sentence of imprisonment that would have been imposed by Judge Davis and then rounded downwards (and in Mr Tui’s favour) to take account of the period of home detention Mr Tui had served before he absconded. Hence the sentence of 15 months’ imprisonment which is now appealed.

[7]                Therefore, although the appeal is necessarily against the sentence imposed by Judge Harvey, it will be determined by examining the decision of Judge Davis.

The appeal

[8]The grounds of appeal are:

(a)Judge Davis’s calculation of a 21 months period of imprisonment was manifestly excessive; and

(b)The Judge erred in not ordering a s 27 cultural report.

[9]                As part of the appeal, Mr Watkins for Mr Tui has filed a s 27 report and has applied for leave to adduce it as evidence on the appeal. The Crown opposes on the basis that it could not have made a difference to the sentence and adds nothing to the appeal.

Discussion

[10]            On an appeal against sentence it is the sentence itself which has to be shown to be manifestly excessive before it will be reduced. The method adopted by the sentencing Judge might be shown to be in error, but that matters only if the error flowed through to an end sentence which is manifestly excessive.

[11]            In this case, the end sentence of Judge Davis was 10 months’ home detention. That was, by any account, a merciful sentence  given the three charges  for which  Mr Tui was sentenced.

[12]            Mr Watkins assiduously referred me to cases which he submits suggest Judge Davis’s starting point was too high. In particular, Clotworthy v Police with its table of comparator cases.3 Clotworthy was reviewed by Whata J in Samson v Police.4 The guidelines were updated. In this case, my view is that Judge Davis’s combined start point of 28 months’ imprisonment was high, even bearing in mind the significant aggravating feature that the eighth driving while disqualified charge was committed while Mr Tui was on bail on the seventh driving while disqualified charge. However, the discount of 25 percent for the entry of guilty pleas was very generous. The pleas were not entered at the first available opportunity and, given the overwhelming strength of the evidence, pleas were inevitable.

[13]            As I have said, it is the end sentence which is determinative.  I agree with   Mr Watkins’s candid submission:

17. In summary the sentence by Davis DCJ was within the range open to him. Counsel suggests in respect to the Clotworthy comparative studies, the sentence is 1 month to 2 months higher. In comparison to the Samson v Police case it is consistent with that pattern and thus the sentence shouldn’t be disturbed.

[14]            The appeal ground alleging error in that the Judge did not order a s 27 cultural report is misconceived. First, there is no entitlement to a s 27 report. The Court must take into account an offender’s personal, family, whanau, community, and cultural background in imposing a sentence.5 However, it is a matter of judicial discretion as to how much weight should be given to the personal circumstances of an offender,6 and as to whether a s 27 report is likely to be helpful.7 Second, the absence of a s 27 report will be relevant to an appeal against sentence only if it can be established that the contents of the report would have mitigated culpability to an extent making the end sentence manifestly excessive.

[15]            I have read the s 27 report obtained by Mr Watkins. It is not helpful to Mr Tui. A report which prompts a discount in sentence will illuminate a nexus between an

3      Clotworthy v Police [2015] NZHC 57.

4      Samson v Police [2015] NZHC 748.

5      Sentencing Act 2002, s 8(i).

6      Rudolph v R [2019] NZCA 451 at [33].

7      Sentencing Act 2002, s 27(5).

offender’s background and her or his  offending.8  Mr Tui’s  report  describes  how Mr Tui’s parents consumed a lot of alcohol during his early years. Further, that Mr Tui ran away from home at 13 years of age when he became a father. He turned to alcohol during this time. The report notes that while Mr Tui regrets his offending, he does not perceive his alcohol consumption to be a problem. The report does not establish such a nexus between Mr Tui’s background and his offending that a reduction in sentence should result.

Decision

[16]            The end sentence of 10 months’ home detention was not manifestly excessive; it was merciful and imposed by an experienced Judge in conjunction with a direction as to the use of an alcohol interlock device in an attempt to give Mr Tui the best chance of breaking the cycle of his offending. It did not work. Mr Tui absconded from his home detention. Judge Harvey cannot be faulted for simply resentencing to the term of imprisonment (making allowance for the period already served on home detention) which would have been imposed by Judge Davis had he not commuted it to a sentence of home detention.

[17]The appeal is dismissed.

Brewer J

8      Solicitor-General v Heta [2018] NZHC 2453 at [50].