Himiona v Police [2012] NZHC 1756 (18 July 2012)

Last Updated: 24 July 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-463-25 [2012] NZHC 1756

BETWEEN TE AO MAAKARIINI HIMIONA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 18 July 2012

Appearances: S R Franklin and K Scott for Appellant

N G Belton for Respondent

Judgment: 18 July 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors: Hamertons, Tauranga Crown Solicitor, Tauranga

HIMIONA V NEW ZEALAND POLICE HC TAU CRI 2012-463-25 [18 July 2012]

The appeal

[1] Mr Himiona appeals against a sentence imposed in the District Court at Whakatane, on 2 May 2012, on charges of driving with an excess breath alcohol concentration and driving while disqualified. Judge P A Moran sentenced Mr Himiona to an effective term of imprisonment of two years. Counsel for Mr Himiona submit that sentence was clearly excessive.

Facts

[2] At about 12.10pm on Friday 23 March 2012, Mr Himiona was driving a motor vehicle along Goulstone Road, Whakatane. Police officers had been searching for Mr Himiona’s vehicle. They had received a telephone call from a concerned citizen regarding his sobriety. Mr Himiona had been refused permission to purchase alcohol at a local supermarket. When he was stopped, he was leaving another liquor outlet, after making a purchase.

[3] When spoken to by a police officer, Mr Himiona was severely intoxicated. The summary of facts records that he “smelt strongly of alcohol, was slurring his words and was stumbling around”.

[4] Mr Himiona refused to undergo a roadside breath screening test. An evidential breath test was administered. The result was a reading of 1520 micrograms of alcohol per litre of breath. That is nearly four times the legal limit of

400 micrograms of alcohol per litre of breath. No blood test was requested.

[5] Mr Himiona admitted to the Police that he had consumed “a box” of beer before driving. Also, he admitted freely that he was a disqualified driver. At the time of his arrest, Mr Himiona was aged 41 years.

Previous traffic history

[6] This is not the first occasion on which Mr Himiona has been before the Courts on charges of this kind. He has six previous convictions, spanning the period between 1990 and 2008, arising out of alcohol impaired driving. He has also accumulated some 12 convictions for driving while disqualified over that period.

[7] Not only have there been six previous convictions, but they have been at levels which cause much concern. On two prior occasions in 1993 and 1997, Mr Himiona was apprehended driving with 1101 micrograms of alcohol per litre of breath and 1023 micrograms of alcohol per litre of breath, respectively. On two other occasions the levels were 700 micrograms of alcohol per litre of breath and

760 micrograms of alcohol per litre of breath respectively. On one occasion, in

2002, the level of alcohol is unknown as Mr Himiona was convicted on a charge of refusing to supply a sample.

[8] That is the context in which the sentence imposed falls to be considered.

Sentencing in the District Court

[9] Judge Moran began his sentencing remarks by outlining the relevant facts. He identified aggravating features. First, there was the level of the breath alcohol reading. The second was that he was committing two offences in combination; namely, drink driving and driving while disqualified. Thirdly, there was the prior criminal history to which I have referred. The Judge considered that the only mitigating factor were the pleas of guilty.

[10] The Judge was given a number of statistics by the prosecutor in relation to drivers who had been processed for excess breath alcohol offences in the Eastern Bay of Plenty over the previous two years. I agree with Mr Franklin’s submission, for Mr Himiona, that those statistics should not, in the absence of an opportunity to check their veracity, have been given too much weight. Nevertheless, the Judge could clearly take judicial notice of the number of offences of this type that come before the Courts and the level of consumption of alcohol involved in this and other

cases. The critical task was for the Judge to identify the level of culpability of the offender and to impose a sentence that would fairly reflect an appropriate community response. Notwithstanding the Judge’s references to the statistical information, I consider that he approached the sentencing task in a correct manner.

[11] In dealing with the excess breath alcohol charge, the Judge took a starting point of 20 months imprisonment and then gave a credit of 25% for the guilty plea. That left the sentence of 15 months imprisonment on that charge.

[12] The Judge accumulated a sentence on the driving while disqualified charge. He took a starting point of 12 months imprisonment and gave a credit of 25%; namely three months for the guilty plea. Adding the end sentences together the Judge arrived at a total of two years imprisonment. He also considered the sentence imposed on the basis of the totality principle and considered that the sentence did not offend against that.

Analysis

[13] Mr Franklin and Mr Scott have put submissions before the Court which have traversed a number of decisions in this area, in an endeavour to demonstrate that the end sentence was clearly excessive. It is unnecessary to refer to those cases. It is preferable to consider particular aggravating factors apparent in this case and to identify, by reference to some of the more similar cases, whether the end sentence is consistent with those previously imposed.

[14] That exercise must recognise that a Judge has a sentencing discretion and the question of imposition of a community response to offending of this nature is not a mechanical exercise. It also must be remembered that, in appellate decisions of this Court and the Court of Appeal, a dismissal of a appeal against sentence brought by an offender only means that the Court did not regard the sentence as manifestly excessive. It does not consider whether a higher sentence might have been justified.

[15] Some attention was paid to my own decisions in Moon v New Zealand Police[1] and New Zealand Police v Tawhara.[2] Moon’s case is, as Mr Franklin recognised, relatively similar, although it is fair to say that it contained some features which were worse than those concerning Mr Himiona. Nevertheless, the level of the breath alcohol reading was higher, though Mr Moon had been convicted of relevant offences on more occasions.

[16] In Moon, I indicated that cases can be treated as near to the worst of its type for Sentencing Act purposes, even though it is always possible to posit cases in which a greater number of convictions for prior offending may have taken place or worse driving results observed.[3] Ultimately, the Court must stand back and say what is required to respond both to the alcohol related driving and the driving while disqualified.

[17] As the cases cited in Tawhara indicate,[4] there is good reason why cumulative sentences should be imposed in cases involving excess breath or blood alcohol and disqualified driving. The Court of Appeal, in R v McQuillan,[5] approved the practice of imposing cumulative sentences to reflect the totality of criminality involved. Such sentences reflect the difference in kind between alcohol impaired driving (a public safety concern) and driving while disqualified (an administration of justice offence involving deliberate disobedience of a Court order). The totality principle is then applied to ensure that cumulative sentences do not “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.[6]

[18] In this case, Mr Himiora has a history over many years of driving not only with an excess breath alcohol concentration, but an extremely high breath alcohol

_{concentration. Including the present occasion, there are three occasions in which he}

has driven with a level of over 1000 micrograms of alcohol per litre of breath. He has continued over that same period to drive while disqualified.

[19] While I accept Mr Franklin’s submission that most of the offending is linked to the alcohol rather than deliberate disobedience of Court orders that, with respect, misses the point. The problem is that the alcohol means that Mr Himiona cannot control himself; the road safety concerns mean that the public must be protected from him; the driving while disqualified offences indicate that he does not have the capacity at present to impose self-discipline and not to drive.

[20] Taken together, the Court was left with an offender who was demonstrating a willingness to continue to offend and there was no option but to respond with a sentence of imprisonment that could denounce the conduct involved, attempt to deter Mr Himiona from offending in this way again and protect the community from him. It was purely chance that he did not drive in the extremely intoxicated state in which he was found on this occasion. Had he driven that night, it is not hard to imagine the type of consequences that may have occurred.

[21] Having regard to the authorities to which I have referred, I consider that the starting points for sentence were within the range available to the Judge and that the accumulation of sentence was appropriate. It follows that I do not accept that a sentence of two years imprisonment was clearly excessive.

Result

[22] In those circumstances, the appeal is dismissed.

Addendum

[23] I add one comment in relation to the guilty pleas. Judge Moran applied a credit of 25% to recognise early guilty pleas. That tends, in practice, to be the usual

credit allowed for early guilty pleas, in terms of the Supreme Court’s decision in

Hessell v R.[7]

[24] When cases such as Moon and Tawhara were decided, the applicable authority was the Court of Appeal decision in Hessell.[8] That had a much more prescriptive approach to the way in which credits for guilty pleas were provided. In the Supreme Court’s decision, delivered by McGrath J, the following comments were made:

[60] The Court of Appeal’s [more prescriptive] approach would mean that where a plea is entered promptly, even in the face of a very strong prosecution case, the maximum discount must be given. But that treats as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility. The approach is likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty. Importantly also, it would put pressure on an accused to plead guilty for reasons that are unprincipled. In some cases pressure of this kind could lead to a guilty plea being entered in haste, by someone who may not be guilty of the offence charge and pleaded to. (my emphasis)

[25] Courts sentencing in cases such as this will need to bear in mind that the level of credits available in cases in which there is limited opportunity to challenge the prosecution case are more flexible now than they were when the Court of Appeal gave its decision.[9]

[26] I make it clear, however, that I have approached the present appeal on the basis of the end sentences imposed. I am not to be taken as suggesting in this case that, if a lower credit had been given, the sentences would still have been within the

_{relevant range.}

_{P R Heath J}

---

[1] _{Moon v New Zealand Police HC Whangarei CRI 2010-488-0007, 9 July 2010.}
[2] _{New Zealand Police v Tawhara HC Whangarei CRI 2010-488-44, 8 September 2010.}
[3] _{Moon v New Zealand Police HC Whangarei CRI 2010-488-0007, 9 July 2010 at para [14].}
[4] See, See Collins v Police HC Hamilton AP100/02, 16 December 2002, Hughes v Police HC Invercargill CRI 2003-425-017, 31 October 2003, Sykes v Police HC Dunedin CRI 2006-412-0004, 15 March 2006, Miles v Police HC Hamilton CRI 2005-419-42, 2 May 2006, Sands v Police HC Christchurch CRI 2006-409-170, 27 September 2006, and Moon v Police HC Whangarei CRI 2010-488-0007, 9 July 2010.
[5] _{R v McQuillan CA129/04, 12 August 2004.}
[6] Sentencing Act 2002, s 85(2).
[7] _{Hessell v R [2011] 1 NZSC 607 (SC) at para [75].}
[8] _{Hessell v R [2010] 2NZLR 298 (CA).}
[9] See also, R v McQuillan CA129/04, 12 August 2004 at para [23].