Taulupe v Police [2012] NZHC 2484 (25 September 2012)

Last Updated: 24 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000255 [2012] NZHC 2484

BETWEEN BARRY TAULUPE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 24 September 2012

Appearances: A A Rasheed for Appellant

K D W Snelgar for Respondent

Judgment: 25 September 2012

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 25 September 2012 at 4:15 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date...........................

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – K Snelgar

Counsel: A A Rasheed, P O Box 97057, Manukau 2241

_{Fax: [phone] – Email:} [e-mail]

TAULUPE V NZ POLICE HC AK CRI-2012-404-000255 [25 September 2012]

Introduction

[1] At about 10:55 pm on 10 December 2011 the appellant, Barry Taulupe was stopped by the Police as he drove north on Great South Road, Otahuhu. Mr Taulupe had 14 previous convictions all but three of which were driving-related. He was a disqualified driver. He exhibited signs of recent alcohol intake but refused evidential breath test procedures and a request for blood.

[2] Mr Taulupe pleaded guilty to one charge of driving while disqualified[1] and one of refusing an officer’s request for blood.[2] The maximum penalty for each offence is two years’ imprisonment. Judge Treston imposed concurrent sentences of four months imprisonment and 18 months disqualification.[3] Mr Taulupe appeals both sentences on the ground that they are manifestly excessive. The various asserted errors essentially come down to the Judge wrongly failing to consider home

detention and not giving sufficient weight to Mr Taulupe’s personal circumstances.

[3] Because the appeal centres around Mr Taulupe’s personal circumstances it is convenient to outline these now. First, Mr Taulupe has a 29 year unbroken employment record with the same company. Secondly, continued absence from work means that this job is in jeopardy. This fact was not before the Judge at sentencing. Mr Rasheed, for Mr Taulupe, explained (without objection from Mr Snelgar) that Mr Taulupe had a substantial amount of leave owing as a result of his long service and that it was expected that this could be used for part of the term of imprisonment with the balance allowed as unpaid leave. However, Mr Taulupe’s employer is finding it difficult to manage without him and continued absence may well result in him losing his job. Thirdly, Mr Taulupe is aged 63 and is the sole income earner for his family. It is reasonable to suppose that if he loses his job he will not find another, or at least not easily. Finally, although Mr Taulupe has a very poor record in terms of previous convictions, he has finally found and agreed to

_{attend a Tongan-speaking rehabilitation programme for alcohol, drug and gambling}

problems run under the auspices of the Waitemata District Health Board. A letter confirming his agreement to attend and the fact of his attendance on three occasions prior to being imprisoned was before the Judge.

The Judge’s approach on sentencing

[4] The Judge considered that serious repetitive drink-driving cases call for denunciation and deterrence but acknowledged the relevance of rehabilitation and reintegration in this case and the need to impose the least restrictive outcome possible. The pre-sentence report had recommended community detention and intensive supervision but Mr Rasheed, who also appeared for Mr Taulupe in the District Court, had contended for home detention, recognising that the recommendation in the pre-sentence report was unlikely to be accepted. He advised that the prosecutor had also supported home detention as an appropriate sentence.

[5] The Judge did not, however, refer at all to home detention. His Honour referred only to the alternatives proposed in the pre-sentence report and to imprisonment as the available options. He took a starting point “in the vicinity perhaps of six or seven months’ imprisonment” before giving a single discount for Mr Taulupe’s guilty plea, personal circumstances and good work history:

[11] While the recommendation is for community detention and intensive supervision, in my view with your history and the circumstances that is inappropriate and inadequate. It is my view that I must impose a sentence which will recognise the seriousness of the offending and the other factors to which I have already referred.

[12] Of course I give you credit for your plea of guilty. Of course I take into account your circumstances, your good work history and whatever, but in my view there is nothing that can make me stop short of a sentence of imprisonment today because the message must be sent out to the driving public that your actions will simply not be accepted.

[13] The starting point presumably for these matters could indeed be somewhat higher because of the combination of the driving while disqualified and refusing blood but it is my view that the appropriate starting point would be in the vicinity perhaps of six or seven months imprisonment. In the circumstances I give you credit for your plea of guilty and the other steps which you took.

[14] On each of these charges today having been convicted, you are sentenced to imprisonment for four months, and released on the standard

release conditions for six months after sentence expiry date; and the special release conditions until six months after sentence expiry in accordance with the probation officer’s report that dealt with the intensive supervision recommendation. Those conditions of course are that you will attend an alcohol assessment and attend and complete such programme, counselling or treatment as directed to the satisfaction of the programme facilitator and the probation officer and any other counselling programme as directed.

[15] On each charge you are also disqualified from holding or obtaining a

driver’s licence for 18 months starting now.

Appeal

[6] Mr Snelgar, for the Police, submitted that it was implicit in the Judge’s assessment of imprisonment as the appropriate sentence that home detention was considered. I do not accept that there is any basis for drawing that inference. Given that Mr Rasheed had explicitly contended for home detention and the prosecutor had supported that, it would not be right to read into the Judge’s sentencing notes an indication that home detention had, in fact, been considered when there was no mention of either submission. The Judge appears to have moved straight from rejecting the pre-sentence report recommendation to a sentence of imprisonment without considering home detention. Given Mr Taulupe’s personal circumstances home detention was an option that should have been considered.

[7] In terms of the sentence that was imposed, Mr Rasheed did not argue that the starting point (whether six months or seven months) was too high. But he submitted that the credit given for Mr Taulupe’s personal circumstances was too low. Without knowing exactly what starting point was taken it is impossible to know what discount was applied and, even then, impossible to know the allocation of discount between the guilty plea and the personal circumstances. The total discount would range from about 33 per cent if the starting point was six months to 47 per cent if the starting point was seven months.

[8] Since Mr Taulupe pleaded guilty at the earliest opportunity and could have expected the maximum available discount for that if the lower starting point was taken that would have resulted in a discount of less than 10 per cent for the personal circumstances, which would clearly be inadequate. If the higher starting point was taken the discount for those circumstances, assuming the full discount for a guilty

plea, would be slightly over 20 per cent which I would regard as light but within range. However, although it is desirable to understand how the Judge reached the end sentence, the ultimate issue is whether the end sentence is manifestly excessive.

[9] Looking at the circumstances of the offending and Mr Taulupe’s previous history it cannot be said that four months imprisonment and 18 months disqualification is manifestly excessive as a reflection of those aspects. But it does not adequately recognise the personal circumstances I have recorded. In particular, I accept Mr Rasheed’s submission that Mr Taulupe’s work record is remarkable. Nor does it recognise the desirability of rehabilitation and reintegration. The benefit to the community from Mr Taulupe retaining his job and undertaking rehabilitative counselling is much greater than having him in prison for a relatively short period. In this regard I note that the pre-sentence report considered that Mr Taulupe was more likely to comply with a community-based sentence now “taking into account his more stable lifestyle at this time [and] his stated motivation to undertake more counselling”.

[10] For these reasons I consider that four months imprisonment is manifestly excessive. Mr Taulupe has now served seven weeks of his sentence. Mr Rasheed submitted that a sentence of three months in substitution of the sentence imposed would see Mr Taulupe released now and able to resume his job. I consider that this is the best course, provided that the post-release conditions imposed by the Judge are retained.

[11] The appeal is allowed. The sentence of four months imprisonment is quashed. It is substituted with a sentence of three months imprisonment and 18 months disqualification on each charge with the standard and special post-release conditions until six months after sentence expiry. The special release conditions include the requirement for Mr Taulupe to attend and complete such programme, counselling or treatment as directed by the probation officer and any other counselling programmes as directed.

P Courtney J

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[1] _{Third or subsequent s 32(1) and 32(4) Land Transport Act 1998.}
[2] _{Third or subsequent s 60(1)(a) Land Transport Act 1998.}
[3] NZ Police v Taulupe DC MAN CRI-2011-092-018958, 6 August 2012.