Waitere-Tutaki v Police - [2025] NZHC 1275

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-18

[2025] NZHC 1275

BETWEEN
HINA TAKIRI WAITERE-TUTAKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 May 2025

Appearances:

J P Seal for Appellant

A N Kearney for Respondent

Judgment:

23 May 2025

JUDGMENT OF GWYN J

[Sentence appeal]

Introduction

[1] On 26 March 2025, the appellant was sentenced to 16 months’ imprisonment on the following charges:1

(a)two charges of driving with excess breath alcohol over 400 mg – third or subsequent;2 and

(b)one charge of failing to answer District Court bail.3

1      Police v Waitere-Tutaki [2025] NZDC 8346.
2      Land Transport 1998, s 56(1) and 56(4) — maximum penalty of 2 years’ imprisonment or $6,000; and the Court must order the person to be disqualified from holding or obtaining a driver license for 6 months or more.
3      Bail Act 2000, s 38(a) — maximum penalty of 1 year imprisonment or $2,000.

WAITERE-TUTAKI v NEW ZEALAND POLICE [2025] NZHC 1275 [23 May 2025]

[2] The appellant now appeals her sentence on the basis that the District Court Judge erred in:

(a)assessing that home detention was not the least restrictive sentence and declining an adjournment to consider home detention;

(b)refusing to grant leave for home detention if a suitable address were to become available; and

(c)refusing to apply an allowance for personal mitigating factors namely, the appellant’s personal circumstances at the time of the offending and time on EM bail.

[3] The appellant asks the Court to quash the sentence of imprisonment, and direct that sentencing occur again in the District Court and grant the appellant EM bail pending sentence.

The offending

Driving with excess alcohol breath

[4] On 29 November 2023, the police stopped the appellant after receiving information that the appellant had left an address intoxicated. A breath test indicated a reading of 1209 mg of alcohol per litre of breath. The appellant admitted to the police that she had consumed 12 Smirnoff Ice cans.

[5] On 8 June 2024, the police stopped the appellant for a routine traffic stop. The reading of the breath test was 671 mg of alcohol per litre of breath.

Failure to answer District Court bail

[6] On 12 August 2024, the appellant was due to appear in the Whanganui District Court for sentencing relating to two charges of driving with excess alcohol breath. The appellant failed to appear, and warrants were issued for her arrest.

District Court decision

[7] Judge Andrée Wiltens acknowledged that the appellant was drinking on the evening of 29 November 2023 due to her mother’s death. However, the Judge did not consider that reason to justify driving in a condition where the appellant would be a danger to herself and other users of the road. The readings of the breath test displayed a result of more than three times over the alcohol limit.

[8] The Judge noted the maximum sentence for the drink-driving offences was two years’ imprisonment for each offence…

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.

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Details

Case: [2025] NZHC 1275
Decision Date: 23 May 2025

CaseChat Overview and Summary

The appellant, Hina Takiri Waitere-Tutaki, appeals her sentence of 16 months' imprisonment for two charges of driving with excess breath alcohol over 400 mg, and two months' imprisonment for failing to answer District Court bail. The appeal focuses on the District Court Judge's refusal to consider home detention as a sentencing option, the denial of leave to apply for home detention if a suitable address became available, and the refusal to apply a discount for personal mitigating factors. The appellant argues that home detention should have been considered as the least restrictive option and that she was entitled to a discount for her personal circumstances and time spent on electronically monitored (EM) bail. The Court of Appeal must determine if the District Court Judge erred in his sentencing discretion.

The court considered whether the District Court Judge erred in declining to consider home detention as an alternative to imprisonment, refusing leave to apply for home detention, and not applying a discount for the appellant's personal circumstances and time on EM bail. The Court examined whether the Judge's decision to proceed without an updated pre-sentence report and a consideration of home detention was justified. The court noted that while the appellant had an extensive criminal record, there was no rule that precluded home detention as a sentencing option. The court found that the Judge's decision not to adjourn the sentencing hearing and obtain an updated pre-sentence report was an error, as such reports are crucial for informed sentencing decisions.

The Court of Appeal concluded that the District Court Judge erred in not adjourning the sentencing hearing to consider an updated pre-sentence report and in not considering home detention as an appropriate sentence. However, the court found no error in the Judge's decision to refuse a discount for personal circumstances and time spent on EM bail. The appeal was allowed in part, and the sentence was quashed. The Court directed that the sentencing be remitted to the District Court for reconsideration after an updated pre-sentence report has been completed. Additionally, the Court granted the appellant EM bail pending the new sentencing hearing.

Orders