Waitere-Tutaki v Police
[2025] NZHC 1275
•23 May 2025
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 and a breach of bail created a maximum penalty of 12 months’ imprisonment.
[9] The Judge observed that the drink-driving charges were the appellant’s sixth and seventh convictions of that type. As a result, the Judge applied a starting point towards the upper end of the maximum sentence range, namely 18 months’ imprisonment, taking into account the appellant’s previous convictions. The Judge applied a two months’ uplift for the appellant’s third breach of bail, leading to a starting point of 20 months’ imprisonment.
[10] The Judge applied a 20 per cent discount for a guilty plea as the plea was not entered into at the earliest stage possible.
[11] The Judge did not consider it appropriate to adjourn the hearing to ascertain whether home detention was available and whether there was an available address. The Judge viewed the appellant as having an extensive criminal record for driving and dishonesty-related offending. The Judge observed prior sentences of home detention or imprisonment did not deter the appellant from further offending. As a result, the Judge did not consider home detention was appropriate, even if it was available.
[12] Overall, the Judge sentenced the appellant to 16 months’ imprisonment for the charges of driving with excess breath alcohol charges and two months’ imprisonment concurrently for the breach of bail. The Judge also disqualified the appellant from holding or obtaining a driving license for a period of 28 days. The Judge refused leave to apply for home detention.
Previous convictions and bail history
[13] The appellant has five prior convictions related to driving with excess breath alcohol, with one conviction in 2017, three in 2012 and one in 2010. In 2017, the appellant had a reading of 1127 mg of alcohol per litre of breath. In 2012, she is recorded to have readings of 1167 mg, 960 mg, 1076 mg of alcohol litre of breath. In 2010, the readings were 647 mg of alcohol per litre of breath. She also has 46 convictions between 2007 and 2017 relating to driving while disqualified, dishonesty offences, failing to answer District Court bail, breaching orders and breaching home detention conditions. Of those 46 convictions, the appellant committed a total number of 42 offences while on bail.
Approach on appeal
[14] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.4 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken by the Judge in reaching that outcome.6 The Court must dismiss the appeal in any other case.7
[15] An order declining leave to apply for home detention is treated as a sentence for the purposes of appeals under the Criminal Procedure Act 2011.8 The Court of Appeal confirmed in Palmer v R that the same standard of review on appeal applies to decisions not to commute imprisonment to home detention as it does to any other sentence.9 The Court went on to note that the decision often calls for a difficult exercise of judgment by the sentencing judge, and therefore, “… the margin of appreciation extended to sentencing judges is usually significant”.10
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
5 At [36].
6 Ripia v R [2011] NZCA 101 at [15].
7 Criminal Procedure Act 2011, s 250(3).
8 Sentencing Act 2002, s 80J.
9 Palmer v R [2016] NZCA 541 at [18].
10 At [19].
Submissions
Appellant’s submissions
[16] Mr Seal submits home detention is the most appropriate sentence and is the least restrictive sentence that meets the purposes and principles of sentencing. Counsel argues the appellant was not given a further opportunity to provide an address for home detention, namely, the address to which she was EM bailed. The appellant states she was unable to complete a pre-sentence report as she had not received any forms of communications from the report writer.
[17] Mr Seal argues the Judge erred in holding that imprisonment was the only sentence available to the Court due to the appellant being previously sentenced to imprisonment. The appellant refers to Tawa v Police in support of a sentence of home detention.11 In Tawa v Police, the appellant successfully appealed his sentence of 23 months’ imprisonment for driving with excess breath alcohol (third or subsequent) being his fourth conviction for drunk driving, two charges of driving while disqualified (third or subsequent) being his sixth and seventh convictions for disqualified driving, and careless driving. Mr Seal states that the length of time between the offending and granting home detention was a significant factor in Tawa and that the defendant in Tawa also served terms of imprisonment previously. The appellant further notes the Judge gave no weight or insufficient weight to the fact that the appellant’s previous drunk driving conviction occurred in December 2017, some five years and 11 months prior.
[18] The appellant submits a 10 per cent discount was appropriate for her personal circumstances at the time of the offending. The appellant’s mother died the day after the offending. Mr Seal states that the appellant experienced stress of arranging her mother's estate and “being at loggerheads” with other family members for her second driving with excess alcohol breath charge. Counsel also refers to the appellant’s attempts to attend rehabilitation programmes. While the appellant had been accepted to two rehabilitation facilities, she claims she was refused entry due to the programmes being female-only.
11 Tawa v Police [2016] NZHC 696.
[19] Mr Seal suggests that the appellant was entitled for a two-week discount for one month on EM bail on a 24-hour curfew without breach.
Respondent’s submissions
[20] Ms Kearney submits it was open to the Judge to refuse to commute the term of imprisonment to home detention and grant leave to apply for home detention. Given the circumstances of the case, the appellant’s history and recidivism, and poor rehabilitative prospects, the Crown submits that the purposes of deterrence, denunciation and protection of the public were engaged. The Crown highlights the offending was a sixth and seventh conviction for this type of offending and the appellant showed a lack of engagement and insight imperative for a rehabilitative sentencing response in this case. As a result, leave to apply for home detention was not required, given the sentencing Court concluded imprisonment was the appropriate end sentence.
[21] The Crown submits the appellant’s mother’s death was not a legitimate reason to provide a discount in respect of the appellant’s offending. Ms Kearney highlights that the Police arrested the appellant at approximately 12:14 am on 30 November 2023, implying the appellant was consuming alcohol on the evening of 29 November 2023. The funeral programme (attached to the defence’s submissions on sentence filed in the District Court) confirms the appellant’s mother died on 30 November 2023.
[22] The Crown highlights the duration of the appellant’s history of drink driving is approximately 15 years. The appellant re-offended while on bail and failed to take material rehabilitative steps. Ms Kearney argues that the appellant’s lack of engagement with programme coordinators was determinative of the success of her admission into rehabilitative programmes rather than the fact that the programmes were female-only.
[23] The Crown submits that where an offender spends a short time on electronically monitored bail, little credit may be available. The Crown refers to Longman v Police where the defendant received one month credit for two and a half
months on EM bail.12 In McKeeman v Police, no discount was given because the defendant was on EM bail for 39 days.13 In the present circumstances, Ms Kearney highlights the appellant was on EM bail for approximately 37 days. The Crown submits the time spent on EM bail was very short and it was open for the Judge to refuse to reduce the sentence.
[24] The Crown refers to the case of Ilolahia v Police where the Judge held that home detention was inappropriate for three reasons.14 The Judge stated that irrespective of whether a suitable residence was available, there was no cogent evidence of the appellant having taken any steps to address his issues with alcohol abuse. The Judge noted that deterrence, denunciation and protecting the community from risk from intoxicated drivers takes precedence over the rehabilitative interests of the offender.15 The Judge found that the appellant’s rehabilitative needs were not prevented or ignored as a result of the imposition of a sentence of imprisonment.16
Analysis
Considering a sentence of home detention
[25] Where a short-term sentence of imprisonment is available to an offender, the sentence may be commuted to home detention.17 The Court may only commute a sentence of imprisonment to home detention if it is satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences.
[26] In considering whether to impose a sentence of detention the judge must follow a two-step process.18 The first step is to determine that the sentence that would otherwise be appropriate is two years’ imprisonment or less. That step occurred here
– the Judge reached an end sentence of 16 months’ imprisonment.
12 Longman v Police [2017] NZHC 2928.
13 McKeeman v Police [2022] NZHC 1033.
14 Ilolahia v Police [2022] NZHC 1853.
15 At [20]–[23].
16 At [23].
17 Sentencing Act, s 15A.
18 R v Vhavha [2009] NZCA 588 at [31].
[27] The second step is the exercise of the court’s discretion as to whether it is an appropriate case to commute the sentence to one of home detention. There is no presumption that either imprisonment or home detention is to be preferred,19 but the judge must identify which option is the least restrictive taking into account all the purposes of sentencing.
[28] The Judge, in this case, at least implicitly undertook a limited assessment. He said:20
… You have a terrible record, not only for driving but for other offending as well, a lot of dishonesty, and it seems to me that a previous sentence of home detention has not done anything to deter you from acting in this way again, neither has imprisonment for that matter, but I cannot look down the sentencing ladder. What is required is that I go up the sentencing ladder.
[29] However, as Mr Seal submitted on behalf of the appellant at the hearing, there are two issues with the Judge’s statement. First, there is no “rule” that a previous sentence of imprisonment precludes home detention as an option for sentencing.21 I accept that submission.
[30] Second, where the Court is considering a sentence of home detention it is required to direct a pre-sentence report.22 The Judge did not have before him an updated pre-sentence report, having declined an adjournment for Ms Waitere-Tutaki to obtain such a report.
[31] The importance of obtaining a full pre-sentence report was explained by Myers CJ in Re Moulin and affirmed by subsequent decisions in the Court of Appeal:23
… except where a sentence is fixed by law, a Judge of the Supreme Court never sentences a prisoner to a term of imprisonment or reformative detention without having a Probation Officer's report before him … No matter what the prisoner's previous criminal record may be, and no matter what the Police or Crown Prosecutor may say of the offender's character as gleaned from the Police records, there is always the possibility of the careful inquiry which the Probation Officer is expected to make resulting in the obtaining of some
19 Re Vhavha, above n 18.
20 Police v Waitere-Tutaki, above n 1, at [9].
21 See for example Tawa v Police, above n 11.
22 Sentencing Act, s 26A.
23 Re Moulin [1943] NZLR 325 at 327 affirmed in R v Toki [2007] NZCA 335; R v Harriman [2009] NZCA 156; and Fowler v R [2016] NZCA 233.
information which might dispose the mind of the Court to a more lenient sentence than might have been imposed without such information. It is not right, in my opinion, that any Court should sentence a person to a long term of imprisonment — in this case twelve months' imprisonment with hard labour to be followed by twelve months' reformative detention — without having had the opportunity of considering a report from the Probation Officer.
[32] As the Court of Appeal observed in Fowler v R,24 the general rule expressed in Re Moulin has continuing applicability. Referring to R v Harriman, the Court emphasised the importance of the pre-sentence report in the sentencing process. It said: “This reasoning applies wherever the information available to the sentencing Judge is inadequate to make a properly informed decision about whether to sentence someone to imprisonment”.25
[33] In the appellant’s circumstances, the most recent report was dated 6 August 2024. There was an eight-month gap to the hearing which was on 26 March 2025. The earlier report did not outline whether the appellant had access to a suitable address and whether home detention was appropriate in the circumstances. Nor, as Mr Seal emphasised, did it contain an updated assessment of what rehabilitative steps were available to Ms Waitere-Tutaki and what steps she had already taken. To the limited extent that information was available to the sentencing Judge it was by way of evidence from the bar.
[34] While I can understand why the Judge proceeded as he did in the particular circumstances, where Ms Waitere-Tutaki did not initially appear at the sentencing hearing and where Corrections had reported some previous difficulties in contacting her to attend a pre-sentence report interview, ultimately those are insufficient reasons for the Court to dispense with considering a pre-sentence report.26
[35] I conclude that the Judge erred in refusing to adjourn the sentencing and failing to direct an updated pre-sentence report before sentencing.
24 Fowler v R, above n 23, at [30]-[31].
25 At [31].
26 See Sefesi v Police HC Wellington CRI-2010-485-68, 17 August 2010; and R v Harriman, above n 23.
Other grounds of appeal
[36] In light of my conclusions above and the direction at [38] below, I am not required to make findings on the other points submitted on appeal. Nevertheless, I indicate that I would find no error in the Judge’s reasoning and consider it was open to the Judge to refuse to apply a discount for the appellant’s personal circumstances, credit for time spent on EM bail, and the gap since the appellant’s last prior offending.
Conclusion and result
[37]The appeal is allowed in part.
[38] I quash Ms Waitere-Tutaki’s sentence of imprisonment and direct the sentencing to be remitted back to the District Court for consideration after an updated pre-sentence report has been completed.
[39] The decision of Judge Davidson to grant Ms Waitere-Tutaki EM bail is not available to this Court. I direct that she be granted EM bail at the same address, and on the same conditions as previously applied, pending sentence.
Gwyn J
Solicitors:
Crowley Waugh Barristers and Solicitors, Whanganui for Appellant C&M Legal, Whanganui for Respondent
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