Tutahi v Police - [2014] NZHC 3354

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000053 [2014] NZHC 3354

BETWEEN
SAMANTHA TUTAHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 December 2014

Appearances:

D J Blaikie for Appellant
M Jarman-Taylor for Respondent

Judgment:

19 December 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]

This judgment is delivered by me on 19 December 2014 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

TUTAHI v NEW ZEALAND POLICE [2014] NZHC 3354 [19 December 2014]

Introduction

[1] On 11 December 2014 Ms Tutahi was sentenced by Judge Duncan Harvey in the District Court at Kaikohe to imprisonment for a total of two years and one month on charges of driving with excess breath alcohol and driving while disqualified (in each case, for the 3rd or subsequent time).1 An order that Ms Tutahi was subject to an indefinite disqualification from driving remained in place.

[2] Ms Tutahi has appealed against her sentence on the grounds that, in all the circumstances, the sentence was not appropriate.

Facts

[3] On 22 January 2013, Ms Tutahi was convicted in the District Court at Kaikohe on a charge that, being an unlicensed driver, she failed to comply with a prohibition. That was her ninth conviction for driving while disqualified or failing to comply with a prohibition. She was disqualified indefinitely. On 9 April 2014, Ms Tutahi was stopped by a patrol vehicle at Moerewa. She underwent an evidential breath test which returned a result of 1126 micrograms of alcohol per litre of breath. It was discovered that she was an unlicensed driver.

District Court judgment

[4] The Judge began by recording that he had read the pre-sentence report, a letter from Ms Kiro (a clinician at the Ngatihine Health Trust), and had heard from Ms Kiro in Court. He also referred to the submissions made on behalf of Ms Tutahi. His Honour noted that Ms Tutahi was addressing what was “clearly a very serious alcohol problem”. He considered that Ms Tutahi would be at a very high risk of re- offending if she drank again.

[5] The Judge noted that Ms Tutahi has an “extremely worrying” list of previous convictions. The Judge noted seven previous convictions for driving with excess alcohol, between 2004 and 2013. Her alcohol levels had been on occasions
“spectacularly high” (in all but one case more than twice the limit).

1 NZ Police v Tutahi DC Kaikohe CRI 2014-027-558, 11 December 2014.

[6] After referring to the purposes and principles of sentencing, the Judge referred to the recommendation in the pre-sentence report that Ms Tutahi be sentenced to home detention and supervision. He referred also to Mr Blaikie’s submission that given the steps that Ms Tutahi had taken to address her problem, the appropriate sentence was supervision. However, while understanding Ms Tutahi’s difficult background, and a lack of support from whanau in addressing the problem, the Judge concluded that she had to be sentenced on the basis of what…

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.

Continue reading Tutahi v Police

Details

AGLC: Tutahi v Police [2014] NZHC 3354
Case: [2014] NZHC 3354
Decision Date: 19 December 2014

CaseChat Overview and Summary

The High Court of New Zealand, under the judgment of Andrews J, considered an appeal by Samantha Tutahi against her sentence for driving with excess breath alcohol and driving while disqualified. The District Court had sentenced her to a total of two years and one month in prison, with an indefinite disqualification from driving. Tutahi argued that her sentence was not appropriate given her efforts to overcome alcohol abuse.

The court identified the legal issues as whether the District Court erred in sentencing Tutahi to imprisonment instead of a community-based sentence and whether the sentence was manifestly excessive. The High Court found that while Tutahi had made significant rehabilitative efforts, the District Court erred by considering parole eligibility in sentencing. Instead, the court should have discounted her sentence for her rehabilitative efforts and guilty pleas. The High Court concluded that the District Court’s sentence was not appropriate and remitted the case back to the District Court with directions to re-sentence Tutahi, taking into account the appropriate discounts.

The final orders of the court were that Tutahi’s appeal against sentence was allowed, and her sentence was remitted back to the District Court with a direction to sentence her in accordance with the judgment. The new sentence was to be 15 months' imprisonment, with nine months for the excess alcohol charge and six months for driving while disqualified, to be served cumulatively.

Orders