Vhigakeni v Police HC Auckland CRI-2011-404-299

[2011] NZHC 1182

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-299

OLEIKI VHIGAKENI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 October 2011

Counsel:         G Vear for Appellant

Mr Fotherby for Respondent

Judgment:      3 October 2011

ORAL JUDGMENT OF TOOGOOD J

Solicitors:

G Vear, Public Defence Service, Auckland:  [email protected]

W Fotherby, Meredith Connell, Auckland:  [email protected]

VHIGAKENI V NEW ZEALAND POLICE HC AK CRI-2011-404-299 3 October 2011

[1]      This is an appeal by Oleiki Vhigakeni against a sentence of three months‟ imprisonment  imposed  upon  him  in  the  District  Court  at  Waitakere  when  he appeared having pleaded guilty for driving whilst disqualified, acknowledging that this was the fifth occasion on which he had been convicted for such an offence.

[2]      When  he  last  appeared  on  a  relevant  charge  and  was  sentenced  on

23 July 2007,  Mr Vhigakeni  was  sentenced  to  a  community  based  sentence  on charges of refusing to provide a blood specimen when requested, and driving while disqualified.   He was sentenced to community work but subjected to an indefinite period of disqualification from driving.  At that time he was given a warning that he could expect a custodial sentence for any later offending.

[3]      The  circumstances  giving  rise  to  the  present  conviction  were  that  on

5 May 2011  at  about  11:53 pm  the  appellant  was  the  driver  of  a  Subaru  motor vehicle on Swanson Road.   The vehicle was stopped by Police at a check-point. Mr Vhigakeni was not found to have any sufficient quantity of alcohol on his breath to justify further investigation, but when being spoken to he admitted that he was a disqualified driver.  The explanation given was that he had had friends at home who had been drinking and that he elected to drive them home rather than see any of his friends driving when they should not have been because of the influence of alcohol.

[4]      The District Court Judge said this about the appellant‟s offending history and about the considerations to be taken into account in determining the appropriate sentence in this case:1

[2]       He has refused the request for specimen of blood twice according to the record in front of me and received a final warning.  Whether that is a repetitive statement in the report, I take it that he was driving whilst disqualified on 23 July 2007 and he refused the officer‟s request for blood. He also refused to accompany at that stage.   In 2002 he had a refusing officer‟s  request of blood specimen.   He drove whilst disqualified before that.  He refused an officer‟s request for blood in 1994.

[3]       This man has previous convictions for excess alcohol driving at a very high level, 1094 and 650.   He does not seem to attach any weight whatsoever to Court orders such as disqualifications or final warnings.

[4]       There is a suggestion that his job should be put ahead of the public interest.   There is a suggestion that his family will suffer.   I note that his children are aged 27 to 16 years.  That is nonsense to suggest that there is any undue or extreme hardship on that family.  There would be extremely and undue hardship on that family if this man was to kill himself whilst driving drunk. That is the concern.

[5]       It is public interest now in having Court orders obeyed particularly when the Court has bent over backwards to assist this man.  In the past he was disqualified indefinitely and he chooses to continue to drive.  That will be met by a stern sentence to deter him and others who think that it is smart to ignore Court orders and drive in this fashion.   I have noted that he has employment, he has skills, when he is released from prison he will get the job back again.

[5]      In support of the appeal Ms Vear submits that the approach to be taken was not one of an appeal against the exercise of a discretion but rather an appeal against a judicial assessment, which was undertaken by the District Court Judge.  She says the Judge took into account irrelevant considerations, failed to take into account relevant considerations  and  failed  overall  to  give  proper  consideration  as  to  whether  a sentence  other  than  imprisonment   might   have  been   appropriate.     Although Mr Fotherby‟s written submissions include a suggestion that I should approach this as an appeal against the exercise of a discretion, I agree with Ms Vear that I should approach the appeal as one of those cases referred to by the Supreme Court in

Austin, Nichols & Co v Stitchting Lodestar2  as being an appeal from a judicial

assessment, albeit one which contained elements of discretion.

[6]      In  those  circumstances,  I  am  entitled  to  take  such  account  as  I  think appropriate of the reasons given for the decision below, but I am required to come to my own view as to the merits of the case.  That said, as the Supreme Court made clear  in  Austin,  Nichols  &  Co  v  Stitchting  Lodestar  [2007]  NZSC  103,  it  is incumbent upon an appellant in these circumstances to show that the sentence is wrong.  It is also important to bear in mind that in sitting on appeal in these cases, the real issue is not so much a question of the route by which the Judge reached the outcome he determined but whether, in the end, the sentence assessed overall was wrong.

[7]      Ms Vear says, first, that the Judge focused inappropriately on the need for deterrence and gave undue emphasis to the appellant‟s history of alcohol-related driving offences.  She points to the Judge‟s comments in the sentencing notes,3 and, in particular, she refers to the last two sentences where the Judge said “There would be extreme and undue hardship on that family if this man was to kill himself whilst driving drunk.   That is the concern.”4    Ms Vear suggests that that is a somewhat ironic   observation   in   circumstances   such   as   this   where   Mr Vhigakeni   was apprehended in fact taking steps to ensure that others did not drive while drunk, and that he himself was not affected by alcohol at the time.   I agree with her that Mr Vhigakeni‟s motives were laudable, but that does not really answer the Judge‟s point.

[8]      What the Judge was saying was that, bearing in mind the background to Mr Vhigakeni‟s offending, the order for indefinite disqualification was intended by the Court to ensure that having apparently had something of an alcohol problem in the past he should not drive until that matter had been addressed.5    As to that Ms Vear  submits  that  it  is  clear  from  the  fact  that  Mr Vhigakeni  has  not  been convicted of any drink driving charge since 2007 that he is addressing that issue, and there is no evidence, she says, that he is not taking reformative steps in that regard. She  says  that  he  realises  that  what  he  should  have  done,  having  improved  his

position, was to apply to the Court to have his licence restored to him, but he was unsure as to the steps to be taken in that regard.

[9]      Ms Vear submits that the Judge failed to have proper regard, in considering an  alternative to  imprisonment,  to  Mr Vhigakeni‟s personal  circumstances.    She points out that he is in full-time employment and has been with his current employer for some seven years.  He is apparently well regarded and it seems that now that his employer is aware of the prospect of imprisonment his job will be held open to him. The Judge made a comment to that effect, as can be seen in the sentencing notes.6

Ms Vear pointed out that at that time the employer was not aware of Mr Vhigakeni‟s

position, and she is unable to say where the Judge obtained the information that

3 At [2] and [3].

4 At [4].
5 At [3] and [4].

6 At [5].

Mr Vhigakeni would get his job back.  Nevertheless, that now seems to be the case. What  Ms Vear  says,  really,  is  that  the  Judge  dismissed  the  suggestion  that Mr Vhigakeni‟s family would suffer financial hardship as a result of a period of imprisonment being served, because it seems he has financial responsibilities for his wife and two teenage children, and it is said that they will suffer if he has to face a period of imprisonment, albeit, what the Judge described as a „short sharp sentence‟.

[10]     In the end Ms Vear suggested that the facts here demonstrate an error of judgment on the part of Mr Vhigakeni but one which was well motivated.  She says that displays an increased awareness of public safety and she points also to the significant improvements in Mr Vhigakeni‟s personal life.  Ms Vear also comments on the fact that the Judge made no reference to the fact that Mr Vhigakeni had pleaded guilty to this charge at the earliest opportunity.  When I put to her that any discount for a plea of guilty in this case would be minimal given the strength of the Prosecution case and the inevitably of a conviction, she suggested that Mr Vhigakeni should be entitled to at least some credit for not having dragged out the Court process.  I accept that that is a fair proposition.

[11]     It was submitted by Mr Fotherby, for the respondent, that the Court cannot overlook the large number of previous convictions which the appellant has for failing to  comply  with  penalties  or  orders  imposed  by  the  Court.     It  is  said  that Mr Vhigakeni has something in the order of 29 previous convictions for failing to comply with Court orders, that he has convictions for breaching community work orders, breaching conditions of bail, refusing to follow the instructions of Police officers, and driving while disqualified.   Furthermore, Mr Fotherby points out that the appellant has previously been sentenced to community detention and also to a short period of imprisonment, he suggests in efforts by the Court to break a pattern of behaviour  where  Mr Vhigakeni  seems  to  disregard  orders made  against  him. Against  that  Ms Vear  submits  that  Mr Vhigakeni‟s last  sentence  of  community detention was successfully completed indicating his ability to comply now with Court orders.

[12]     Standing back from this matter and coming to my own view on it, it seems to me that while credit needs to be given to the appellant for his motive in driving his

friends home, and to the fact that he seems to have his life much better in order than was the case in 2007, nevertheless this was a deliberate breach of a Court order. There is nothing in the facts to suggest that Mr Vhigakeni was obliged to drive a motor  vehicle  on  this  occasion;  nothing  to  suggest  that  some  other  means  of transport might not be available to his friends, or that they could not have slept off the affects of alcohol before getting into a vehicle.   Nothing in the pre-sentence report indicates to me that Mr Vhigakeni did anything other than make a deliberate decision to drive and take the risk that he would not be apprehended.

[13]     In those circumstances, the Court was obliged to consider whether or not an alternative to imprisonment was appropriate.  I do not think it was in this case.  The appellant has an appalling history of breaching orders.   He deliberately chose to breach a Court order here, in circumstances where I consider there to be no justification.     I  take  account  of  the  effect  of  a  term  of  imprisonment  on Mr Vhigakeni‟s family, but that is not a factor which overrides the need of the Court to make it clear to Mr Vhigakeni and others that Court orders must be obeyed.

[14]     In the circumstances the appeal is dismissed.

.........................................

Toogood J