Te Puia v Police HC Palmerston North CRI 2011-454-4 [2011] NZHC 237 (22 March 2011)

Last Updated: 4 June 2011

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CRI 2011-454-4}

BETWEEN ANDREW TE PUIA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 22 March 2011

Counsel: B Gore for Appellant

M G Sinclair for Respondent

Judgment: 22 March 2011

_{ORAL JUDGMENT OF MILLER J}

[1] Mr Te Puia appeals against an effective sentence of 22 months imprisonment, saying that home detention ought to have been imposed as the least restrictive sentence appropriate and the sentence is in any event too long. The sentence was imposed for a third or subsequent offence of driving while disqualified, for theft, and for making a false statement, the latter contrary to s 111 of the Crimes Act 1961.

[2] On 22 December 2009 Mr Te Puia went into a Farmer’s store in Levin and removed two board games from a shelf, putting them into his backpack. He began to move towards the exit, with store security following him, but he stopped at the women’s wear counter and took the two games out of the backpack. It is evident from the summary of facts that he saw that he had been detected. The board games had a value of $80. He was spoken to and gave his brother’s name and details. He persisted in this deception for some time, signing a bail bond in his brother’s name and arranging for his brother to appear at the Levin District Court on 23 December. His identity was discovered after his brother was shown a photograph of the offender taken at the time of the theft and denied identity. Mr Te Puia’s photograph was then

_{published in the newspaper, resulting in him being identified. When spoken to he}

TE PUIA V NEW ZEALAND POLICE HC PMN CRI 2011-454-4 22 March 2011

denied having stolen the items. He was charged with theft in June 2010 and with making a false statement on the day of his guilty pleas, 27 October 2010.

[3] Between 21 October 2008 and 15 April 2010 Mr Te Puia was convicted on four charges of driving while disqualified. On the last of those occasions he was disqualified for 13 months and imprisoned. However, he chose to drive again on 24

December 2010, when he was apprehended with a vehicle that the police had previously ordered off the road. It is not clear why the vehicle was deemed unfit to be on the road. He again gave the details of his brother, but he eventually admitted his identity and said that he had been driving home to Levin.

[4] Mr Te Puia, at the age of 27, has an extensive list of convictions beginning in

1997. The list is notable for the regularity of his offending over that time and the repetition of driving offences, offences of dishonesty, and breach of Court orders or bail. There are 21 convictions for breach of Court orders, including bail, and community-based sanctions, 43 for dishonesty offending, five for driving while disqualified, one for giving false details. He has previously been sentenced to terms of imprisonment.

[5] The pre-sentence report was written on the basis of the December 2009 offending only. It recorded that although Mr Te Puia was assessed at high risk of reoffending, he was apparently highly motivated to change. However, he had displayed similar motivation in the past but had been unable to maintain it after sentencing. He had three children, the oldest whom was aged four, and he and his partner provide a supportive family unit for the children. He lives on an unemployment benefit. Home or community detention was not recommended because his partner had been a victim of his domestic abuse. She was however adamant that she had no fears for her safety, and said she would move out of the family home if her presence meant that he would not get home detention. She would leave the older children with him. The probation officer recommended intensive supervision and community work.

[6] The Judge outlined the facts and Mr Te Puia’s circumstances and noted that

Mr Te Puia had written to the Court acknowledging his wrongdoings. He addressed

the purposes of sentencing, noting that he must denounce the conduct and impose a sentence that provided both specific and general deterrence. The Judge acknowledged that he must impose the least restrictive sentence appropriate.

[7] The Judge treated the offence of making a false statement as the lead offence because of its nature, striking as it does at the administration of justice, and the maximum penalty, three years imprisonment. There is no tariff case. He adopted a starting point of 12 months imprisonment having regard to the need for deterrence when dealing with offences affecting the administration of justice. He added one month for the theft, making an overall starting point of 13 months imprisonment. Mr Te Puia’s personal history warranted an increase to 19 months. In mitigation, six months was allowed for the guilty pleas, which were entered at a relatively early date.

[8] For the charge of driving whilst disqualified the Judge took a cumulative sentence. He adopted a starting point of ten months imprisonment, having regard to the judgment of this Court in Peterson v Police.[1] There were no aggravating features with respect to the driving. However, the Judge noted that his last offence of driving whilst disqualified had earned Mr Te Puia a term of imprisonment. Further, at the time of this offence he was on bail awaiting sentence for the December 2009 offences yet once again provided false details. Those aggravating features led to an uplift of five months, taking the starting point to 15 months. Full credit was given

for the guilty plea together with a further, unspecified allowance for the totality principle. The resulting sentence was nine months imprisonment.

[9] The Judge then considered whether home detention ought to be imposed. He noted that Mr Te Puia was at high risk of reoffending and had a very poor history of compliance with Court orders and community-based sentences. The need for deterrence was strong. While there was motivation to change, there was reason to doubt whether that motivation would survive sentencing. The Judge considered that Mr Te Puia was unlikely to comply with the conditions of a home detention sentence, and it was unlikely that home detention would have any rehabilitative

_{effect. Nor would it sufficiently deter him or others.}

[10] On appeal Mr Gore appears, Mr Stevenson being unavailable. I am advised that counsel has been denied legal aid. Nonetheless he has filed extensive and thorough submissions. He first notes that a number of Judges addressed the file before sentencing. As a result of some confusion about the pre-sentence reports, the report before the Judge did not address the driving offence. I observe that nothing turns on that, as matters turn out.

[11] Counsel argued that the shoplifting offending was at the bottom end of the scale, and it was wrong to treat the offence of giving a false statement as a serious matter. He drew my attention to cases of conspiring to pervert the course of justice in which sentences of community work or home detention had been imposed. In the circumstances, counsel submitted, the sentence of 13 months imprisonment was manifestly excessive.

[12] Counsel next challenged the uplift for previous history, describing it as particularly unfortunate and inappropriate when there was clear evidence that Mr Te Puia had settled down and had been making strenuous efforts to turn his life around. I observe that that is not evident from Mr Te Puia’s history.

[13] Counsel did not dispute that a cumulative sentence was appropriate for the driving offence, but he argued that the Judge was wrong to adopt a starting point of

10 months, and further erred by increasing the starting point by five months because Mr Te Puia had been on bail and had again provided false details. Counsel submitted that a charge of driving while disqualified, with an immediate guilty plea and no aggravating features of the driving itself, ought not to attract a prison sentence, even for a recidivist such as Mr Te Puia who is apparently immune to deterrence.

[14] With respect to home detention, counsel argued strongly that the probation officer’s adverse recommendation ought to have been overruled. The recommendation was based on a Corrections Department policy about putting an offender into a home where there has been domestic violence. The appellant himself was suitable, the address was suitable, and the police had no concerns. Mr Te Puia is an involved parent and a good father, and there is reason to believe that he has made efforts to turn his life around.

[15] Counsel emphasised s 16 of the Sentencing Act, which requires that the Court must have regard to the desirability of keeping offenders in the community so far as practicable and consonant with the safety of the community. Counsel submitted that the Judge could not logically have arrived at a sentence of imprisonment in this case. It is plainly Parliament’s intention that those sentenced to short-term sentences of (two years or less) should now serve their sentences by way of home detention,

referring to the judgment of the Court of Appeal in R v Iosefa.[2]

[16] Finally, counsel noted the interest of Mr Te Puia’s children, stating that his instructions are that the children were in Court for the sentencing and left the Court in a very distressed state when it was explained to them that their father would not be coming home. He submitted that “the Judge’s sentencing decision had just broken up the family relationship, and, in effect, damaged the children”. The Court failed, wrongly, to have regard to the paramount interests of the children, a principle which is reflected in New Zealand family law legislation.

[17] I begin by observing that the question for me is whether the sentence was clearly excessive, and that a sentence may be clearly excessive where it takes the wrong form, as in the case where the Judge has chosen imprisonment rather than the equivalent term of home detention.

[18] There is no tariff case for the offence of giving a false statement. I readily accept that the offence will often be treated as a minor one. Indeed, non-custodial sentences are sometimes imposed for the more serious offence of perverting the course of justice.[3] But it all depends on the facts. On this occasion the deception did strike at the administration of justice, particularly since he persisted in it through court appearances. A starting point of imprisonment was inevitable because of the

brazen and persistent nature of the offence. At no point before his arrest did Mr Te Puia try to put the matter right, although he had plenty of opportunity to reflect. It was only his brother’s eventual unwillingness to play along that resulted in

_{him being detected. I am not persuaded that the starting point was wrong. The uplift}

of one month for the theft was also fully justified, in circumstances where that offence was sentenced concurrently.

[19] I observe that counsel was critical of the Levin police for taking so long to “join the dots” by identifying the ruse. If that is an attempt to reduce Mr Te Puia’s culpability by blaming the police for not catching him earlier, it is misguided.

[20] The submission that driving whilst disqualified ought not result in imprisonment for a recidivist is plainly wrong. In Mr Te Puia’s case, imprisonment was nothing short of inevitable. It was his fifth such offence since 2008, and he faced a maximum penalty of two years imprisonment. He had just served a sentence of imprisonment for the same offence, he was on bail for the false statement and theft, he again gave a false name, and the vehicle ought not to have been on the road. In such circumstances the Judge might well steer by the maximum when choosing a starting point. The starting point chosen, 10 months, was well within the available range.

[21] The effective uplift from the starting points was eight months. That a sentencing Judge can increase the sentence for relevant previous convictions is not in doubt.[4] Care must be taken not to double count however, particularly when previous convictions are an element of the offence, as in the charge of driving while disqualified. I am not persuaded that the uplift was excessive in this case, although it was stern. Mr Te Puia may occasionally mean well, but his behaviour compellingly evidences a failure of deterrence and an unwillingness to comply with his obligations. I observe that an allowance was made for totality.

[22] No issue was taken with the guilty plea discounts, but counsel did argue that the interests of Mr Te Puia’s family were not given sufficient weight, I am unable to accept this submission. It is one thing to say that family circumstances are a permissible mitigating factor under s 9, quite another to say that the interests of children must take precedence over other sentencing considerations. That would conflict with other s 8 sentencing principles by producing markedly lenient treatment

_{for offenders with children when compared to others who are similarly culpable.}

When it comes to family circumstances, s 8 refers only to particular circumstances of the offender that make an otherwise appropriate sentence disproportionately severe. As I said to Mr Gore this morning, I also find it unsatisfactory that counsel should feel free to criticise the Court for causing distress to children whom Mr Te Puia had chosen to bring to the sentencing in full knowledge that he was at risk of imprisonment. If that submission was made on instructions, Mr Te Puia’s rehabilitation has some considerable way to go. He is wholly responsible for bringing the children to Court, and he must take responsibility for his absence from their lives.

[23] Turning to home detention, it is not correct that, the Court having selected an end sentence of two years or less, home detention must follow more or less automatically. As the Court of Appeal has often made clear, other sentencing considerations, particularly protection of the community, denunciation and

deterrence, may make imprisonment the least restrictive sentence.[5] Further, in cases

where those sentencing considerations matter an appellate Court is unlikely to interfere with a sentencing Judge’s decision to impose imprisonment in preference to home detention.[6]

[24] I do not share counsel’s adverse view of the Corrections Department policy against home detention where there is a history of domestic violence. It is plainly sensible as a general proposition, having regard to the stresses that the sentence imposes. The important point is that the policy cannot be applied mechanically by the sentencing Judge.

[25] In this case the Judge did not make that mistake. He clearly did not consider himself bound by the policy. He based his decision on the history of recidivism and non-compliance, the need for deterrence and denunciation, and importantly the absence of real motivation to change for the long term. He thought it unlikely that Mr Te Puia would comply with the conditions of the sentence. That conclusion was

_{open to him. Together with the others, it precludes home detention in this case.}

_{[26] The appeal is dismissed.}

_{Miller J}

Solicitors:

Crown Solicitor’s Office, Palmerston North for Respondent

---

[1] Peterson v New Zealand Police HC Hamilton CRI-2009-419-000011, 20 February 2009.
[2] _{R v Iosefa [2008] NZCA 453.}
[3] R v Churchward CA 439/05 2 March 2006, R v Heta HC Christchurch, S. No. 19/90, 2 May 1990.

[4] Section 9(1)(j) Sentencing Act 2002.
[5] _{R v D [2008] NZCA 254.}
[6] R v Taiepa [2009] NZCA 120.