Hotene (aka Manukonga) v Police [2012] NZHC 1977 (7 August 2012)

Last Updated: 17 August 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-027 [2012] NZHC 1977

BETWEEN TINA MAREE HOTENE (AKA MANUKONGA)

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 August 2012

Counsel: A Dallison for appellant

S A Law for respondent

Judgment: 7 August 2012

_{RESERVED JUDGMENT OF DOBSON J}

[1] The appellant (Ms Hotene) was sentenced in the District Court at New Plymouth on 8 June 2012 in respect of one charge of driving with excess breath alcohol, being a third or subsequent charge. She was sentenced to 12 months’ imprisonment with special release conditions to apply for six months from the expiry of her sentence. Ms Hotene now appeals against that sentence as being manifestly excessive. She also appeals the Judge’s refusal to transform her sentence into one of home detention.

[2] On the night of the offending, Ms Hotene had driven a car, on her account a very short distance, before incurring the ire of another person when she ran over a container of wine on or adjacent to the roadway. A man with an apparent interest in the wine attacked the vehicle Ms Hotene was driving and damaged it, including breaking the windscreen. Ms Hotene telephoned the Police who attended and, in the course of their inquiries, breath tested Ms Hotene. She returned a reading of

841 micrograms of alcohol per litre of breath, was entirely co-operative with the

_{Police and agreed that she had been driving the vehicle.}

HOTENE v NEW ZEALAND POLICE HC NWP CRI 2012-443-027 [7 August 2012]

[3] The District Court Judge cited Ms Hotene’s seven previous convictions for driving with excess breath alcohol which were entered between May 1992 and March 2004. On the last occasion, she was imprisoned for nine months. In addition, the Judge noted numerous breaches of periodic detention or community work sentences, together with convictions for driving whilst disqualified, which the Judge treated as showing an inability on her part to restrain herself from conduct that was prohibited to her. The Judge also noted Ms Hotene’s long-term alcohol abuse, treating her as not realistically able to abide by an electronically monitored sentence that would require self-restraint in complying with a ban on the intake of alcohol. Ms Hotene was five months’ pregnant at the time and the Judge expressed concerns for her unborn child, given her levels of alcohol consumption.

[4] The Judge considered prospects of rehabilitation to have been exhausted, given Ms Hotene’s unsuccessful participation in a detox programme, residential rehabilitation and individual counselling. The Judge effectively treated imprisonment as necessary to enforce abstinence so as to ensure that the unborn child was not subject to the detrimental effects of her on-going alcohol consumption.

[5] The Judge had regard to a sentence of nine months’ imprisonment for Ms Hotene’s last conviction for excess breath alcohol, and in light of that fixed the starting point for this conviction at 10 months’ imprisonment, uplifting it by six months to reflect prior convictions. That was then reduced for an early guilty plea to the end sentence of 12 months’ imprisonment. The Judge rejected home detention as a viable alternative because of the seriousness of the offending. In addition, the Judge assumed that Ms Hotene would continue drinking in the home, placing her unborn child at risk, he considered that previous sentences had not deterred her, and that Ms Hotene was without tangible support.

[6] Ms Dallison submits that the sentence was inappropriately influenced by the Judge’s concern to protect the unborn child, and that the cumulative impact of a number of the components of the Judge’s reasoning combined to produce errors that rendered the outcome, including rejection of the option of home detention, as manifestly excessive.

[7] Ms Dallison challenged the relative seriousness of the offending. Whilst accepting the high level of alcohol in Ms Hotene’s breath, she argued that the driving conduct itself was not a cause for alarm. I do not see this point as a valid criticism. At the level of inebriation reflected in this breath reading, Ms Hotene’s driving would have been sufficiently impaired that she was a serious risk to all in the vicinity. Her misjudgement about the wine case could easily have been, for example, a toddler. She should not have thought of driving.

[8] As to the length of time that had elapsed since the last of her seven previous convictions for driving with excess alcohol, a lapse of nearly eight years is a cause for some encouragement, but it cannot lessen the fact that she drove again whilst inebriated, notwithstanding an appalling prior record.

[9] Ms Dallison also criticised the Judge for inappropriately adopting the view that Ms Hotene was incapable of abiding with a condition of forced abstinence. Ms Dallison cited a period of eight months’ sobriety in 2006, and initiatives Ms Hotene has more recently taken to address her addiction to alcohol. Of course, she is to be encouraged in all such endeavours. However, it would be somewhat unrealistic in all the circumstances disclosed to the Judge for him to have disregarded the very real risk that Ms Hotene would not remain alcohol-free for the duration of a sentence of home detention. His concern might have been expressed more felicitously, but the reality is that, where complete abstinence would be a condition of the sentence being contemplated, there was a high risk that the condition would not be complied with. Once that concern is recognised, it was relevant for the Judge to weigh the appropriateness of such a sentence in light of the risk of breach. Testing Ms Hotene’s resolve during a sentence of home detention is not the only opportunity she will have to pursue any commitment she makes to address her addiction to alcohol.

[10] Ms Dallison also argued that the Judge’s perception that previous sentences had not acted as a deterrent for Ms Hotene was unwarranted. Ms Dallison submitted that the absence of convictions for driving with excess breath alcohol for a period of eight years did demonstrate a measure of deterrence, and that the apparent severity of the sentence on that occasion was contributed to by it being a much higher alcohol

reading and Ms Hotene being sentenced at the same time for two additional convictions for driving whilst disqualified. It would follow that the need for a deterrent aspect was not as strong as the Judge perceived it to be.

[11] This part of the Judge’s analysis might have been expressed with a different emphasis. However, in light of the totality of Ms Hotene’s previous record, and her situation as presented in the pre-sentence report, the Judge’s view on the lack of deterrent impact cannot contribute meaningfully to a criticism that the outcome was manifestly excessive. The pre-sentence report for the District Court reported that Ms Hotene had a long history of alcohol abuse that has contributed to her offending over a number of years. The report continued:

Having completed a detox programme, residential rehabilitation and individual counselling, little is left for her in terms of rehabilitative options.

... [Ms Hotene] admitted that her alcohol abuse has contributed to her non-compliance with previous sentences. She is assessed as at moderate risk of re-offending and harm to others. ... [She] is in receipt of a sickness benefit

for her alcohol addiction. ... A sentence of imprisonment would give

[Ms Hotene] time to cease drinking alcohol and look into the possibility of a release to a residential rehabilitation programme.

[12] Ms Dallison also criticised the Judge for treating Ms Hotene as having no tangible support of any sort, as an additional reason for refusing home detention. She is concerned that that overlooked the support available from the father of her six year old son and her unborn child. She therefore treats that, together with oversight of her domestic situation by Child, Youth and Family Services, as providing a measure of support that would make home detention viable.

[13] I am not satisfied that this factor, as treated by the Judge, even if it is materially more pessimistic than might have been justified about the level of support, makes a material difference.

[14] The Crown supported the level of the sentence imposed by referring to the survey of Wild J in Clotworthy v Police,[1] which showed that sentences imposed for

_{between third and eighth convictions for driving with excess breath alcohol led to a}

range between two months and 12 months’ imprisonment. Where there were eight convictions, the sentences ranged between nine and 12 months’ imprisonment.

[15] Here, the Judge did not refer to the Clotworthy survey and rather started with

10 months, uplifting it by six months to accommodate Ms Hotene’s “appalling history”, and then allowed four months’ credit for early guilty plea to produce the end result of 12 months.

[16] Each case must turn on its own facts, and there cannot be anything in the nature of an arithmetical comparison of levels of alcohol readings combined with the number of prior convictions for excess breath or blood alcohol. Implicit in the sentencing Judge’s approach was an expectation that the appropriate sentencing response would necessarily be more severe on each successive conviction for excess breath alcohol. That approach is not necessarily warranted. The relative severity of the overall circumstances of each conviction needs to be taken into account. If, for instance, two or three previous convictions had all involved breath alcohol levels exceeding 800 or 900 micrograms, and the Court was confronted with further offending where the level was 420, then that circumstance would tend to militate against what might otherwise be an expectation of increasing severity in the appropriate sentence.

[17] Here, the last sentencing in March 2004, for offending in November 2003, reflected a breath alcohol level of 518 micrograms, but was in the context of Ms Hotene also being sentenced for two counts of driving whilst disqualified on the third or subsequent occasion. The sentencing also followed very quickly after another conviction for excess breath alcohol in relation to driving in July 2003. The concurrent sentence of nine months’ imprisonment would have reflected the seriousness of the totality of that offending and, in relative terms, the present offending must be seen as relatively substantially less serious than that. The differences in the circumstances of the different offending are certainly such as to blunt any expectation that a starting point higher than on that last occasion ought to be fixed on the present one.

[18] An additional point Ms Dallison raises about length of sentence that troubles me is the lack of consideration by the Judge of the relative severity of a sentence of imprisonment on a woman who is pregnant. The Judge focused more on protecting the unborn child than on any consideration of the relative hardship created for Ms Hotene by virtue of her pregnancy.

[19] Ms Law cited authority that a convicted woman’s pregnancy cannot be decisive as between sentences of imprisonment and home detention,[2] and that pregnancy will not prevent a prison sentence being imposed, but is a factor to consider together with the predicament of the unborn child.[3] I was not referred to any decisions in which pregnancy has been assessed in terms of s 8(h) of the Sentencing Act 2002, as particular circumstances of the offender that render an otherwise appropriate sentence disproportionately severe for her. I did touch on the issues arising on sentencing of a pregnant woman in R v Aoapaau.[4] I was there addressing more particularly the predicament of a newborn child in prison. The prospect of ameliorating that particular concern by other means does not prevent recognition in appropriate circumstances of pregnancy as a potential consideration under s 8(h) of the Sentencing Act.

[20] I have considered a relatively lengthy and pleading letter from Ms Hotene written from Arohata Prison. In it, she complains that she is unable to sleep adequately, and that the conditions are not conducive to a healthy pregnancy. Ms Dallison submits that she has not yet been seen by a nurse or midwife, or had any other medical attention. Ms Law’s rejoinder on this point is that appropriate medical attention, and if necessary relocation within the prison, ought to be available to Ms Hotene.

[21] On all information available, I am satisfied that prison conditions are making the serving of her sentence disproportionately severe for Ms Hotene. I accept that she is highly stressed over the prospect of having a child in prison, and being away from the support she considers would be available to her if she were in the

_{community. Making every allowance for an extent of overstatement in her concerns,}

the impact of the sentence on her is a valid mitigating consideration that operates in the opposite direction from the concern of the sentencing Judge to have her confined in prison on the basis that it would be preferable for her unborn child.

[22] I am satisfied that the end point of 12 months’ imprisonment, having regard to all the relevant circumstances, was manifestly excessive. I am satisfied that a sentence of eight months’ imprisonment is the appropriate outcome. There can be no accurate prediction of when Ms Hotene’s child will be born. Ms Dallison suggested the present projection was about 13 October 2012. I have not calculated the reduction in sentence precisely to have her released at the time of the birth of her child, but accept that would be an appropriate outcome if the dates do coincide.

[23] On the second aspect of the appeal, Ms Dallison argued that the Judge was wrong to reject home detention as an appropriate sentence. As discussed with her during the course of argument on the appeal, she faces a different onus in that the Court has to be persuaded that the sentencing Judge erred in exercising the relevant discretion: did the Judge here apply an incorrect principle, give insufficient or

excessive weight to a particular factor or was he plainly wrong?[5] The Judge

considered a range of factors that he treated as relevant to the discretion as between a short term of imprisonment and home detention. None of them can be relegated as clearly irrelevant and the weight he gave to each of them was a matter appropriately within his discretion. In these circumstances, I am not prepared to overturn that aspect of the sentence.

[24] Accordingly, the appeal is allowed to the extent of substituting a reduced sentence of eight months’ imprisonment. The Judge’s special release conditions and

_{period of disqualification remain unchanged.}

Solicitors/Counsel:

A Dallison, New Plymouth for appellant

Crown Solicitor, New Plymouth for respondent

Dobson J

---

[1] Clotworthy v Police (2003) 20 CRNZ 439 at [17].
[2] _{Zurich v Police HC Wanganui CRI 2010-483-18, 30 March 2010.}
[3] _{R v Vaux-Phillips [2012] NZHC 1119 at [40].}
[4] R v Aoapaau [2012] NZHC 700 at [24]- [26].

[5] James v R [2010] NZCA 206 at [17].