Koopu v Police [2013] NZHC 1356 (10 June 2013)

Last Updated: 11 June 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-125 [2013] NZHC 1356

BETWEEN DION KOOPU Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 10 June 2013

Counsel: C P Merrick for the Appellant

L M Mills for the Respondent

Judgment: 10 June 2013

_{(ORAL) JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr C P Merrick, Moala Merrick, Solicitors, Manukau

Mr L M Mills, Meredith Connell, Office of the Crown Solicitor, Auckland

KOOPU v POLICE [2013] NZHC 1356 [10 June 2013]

[1] This is an appeal against a sentence of 21 months imprisonment for an offence of driving with excess breath alcohol and disqualified driving.1 This was the appellant’s eighth drink driving offence. The end sentence was 12 months imprisonment. A cumulative sentence of 9 months imprisonment was imposed for the appellant’s seventh disqualified driving offence. These offences occurred on 11

September 2012. The maximum penalty for each offence is 2 years imprisonment.

[2] The appellant is aged 37. The appellant has been convicted on seven earlier occasions for drink driving, the offences being between January 1998 and December

2009. Sentences include two of imprisonment for 1 year, which appear to have been cumulative on other sentences. There are six previous disqualified driving offences between 1996 and 2006. Three resulted in prison sentences, one of which was 12 months imprisonment. There have been four convictions for dangerous driving between 1996 and 2009, two of which resulted in prison sentences. The appellant has a reasonably substantial number of convictions for other offences, or breaches of sentences, or breaches of release conditions.

The District Court sentence

[3] The Judge noted that the appellant had eight previous drink driving convictions, not seven, and that he had six or seven previous convictions for disqualified driving. He noted the other convictions and failures to comply with sentences, other Court orders or conditions. He noted and rejected some submissions in mitigation and, in particular, a submission which may have come from a letter from Mr Koopu to the essential effect that prison was not the answer to his drinking problems. The Judge then said:

[7] This is his ninth conviction now and in my view the preventative element of sentencing must be given greater weight to protect the public. In this case the alternatives of supervision, community work, intensive supervision and home detention, in my view, do not bring home to this man the seriousness of his offending in terms of the purposes and principles of the Sentencing Act 2002. In my view the only sentence that can bring home to him a deterrent aspect is, again, to sentence him to a term of imprisonment but he will note that the term is increasing in length to protect the public.

1 Police v Koopu DC Waitakere CRI-2012-090-008386, 27 March 2013.

[8] I am conscious of the provision to s 16 of the Act. I have given full weight to that section. But I have given, also, full weight to the need to protect the public and Mr Koopu’s very abysmal record of complying with any Court sanctions. I am satisfied if he was sentenced to community detention or home detention there would be a breach back before the Court within the first month. He is so unreliable in that regard. The attitude he has to protection orders indicates to me that Mr Koopu has no intention whatsoever of obeying any law relating to Court orders and that is confirmed by his total disregard of the law and orders of disqualification.

[4] The starting point for the drink driving offence was 16 months imprisonment. It was reduced by 25% for a guilty plea. The starting point for the disqualified driving was 12 months imprisonment, similarly reduced for the guilty plea to 9 months. On the authority of Moon v Police2 the Judge said he intended to impose cumulative sentences. He then turned to the question of totality. He said:

[11] ... I have stood back at the end of the sentencing exercise and taken a look at the sentence to see whether a sentence of 21 months’ imprisonment is excessive. I do not believe it is excessive, it is lenient for this man who is a complete menace to the community.

Submissions

[5] For the appellant, Mr Merrick made all of the submissions which could responsibly be made on behalf of the appellant. He referred, firstly, to what is acknowledged by the respondent to be an error in the reference to eight previous drink driving convictions. The correct total is seven, as earlier recorded.3 Mr Merrick responsibly acknowledged, however, that it would be difficult to argue that this error meant that the end sentence of 12 months for the drink driving offence was

out of range. He submitted that it nevertheless “fed into” the assessment of the end sentence of 21 months imprisonment. The second submission was that no account had been taken of the fact that the appellant had attended counselling with the Community Alcohol and Drug Services (CADS). There was a third submission in the written submissions that the imposition of cumulative sentences was not consistent with other cases, but Mr Merrick acknowledged in his oral submissions that that point could not properly be pursued as a matter of principle having regard to

_{the decision of the Court of Appeal in Hughes.}4 _{The principal submission was that}

2 _{Moon v Police HC Whangarei CRI-2010-488-7, 9 July 2010.}

3 The error is understandable. The Judge said that the information relating to previous convictions

_{“was a complete mess”.}

4 Hughes v R [2012] NZCA 388.

the end sentence of 21 months imprisonment was manifestly excessive. Mr Merrick made that submission by reference, in particular, to the end sentence of 9 months imprisonment for the disqualified driving. He submitted that the offending in this case was substantially less serious than the offending in Moon where the offender had 10 previous drink driving convictions and 15 previous disqualified driving convictions. Mr Merrick supported his submission by reference to the decision of

this Court in Clotworthy5 and two of the cases noted in Clotworthy, Jones6 and Fox.7

[6] For the respondent Mr Mills carefully reviewed the various points made and supported the District Court sentence by reference to other cases. I will note aspects of this in the discussion to which I now come.

Discussion

[7] I am not persuaded that the error by reference to eight previous convictions rather than seven for drink driving was a material error. The fact that the error was made is a matter that does require consideration on appeal, but having given it that consideration I am satisfied the point does not assist the appellant.

[8] In relation to CADS counselling it is correct that the Judge did not make any express reference to this. However, the Judge had, in a general way, characterised the appellant’s attitudes and previous responses to sentences as indicating that rehabilitation was not a matter that could be given any weight. The Judge did observe that the appellant had previously “thumbed his nose” at rehabilitation opportunities made available to him through post release conditions. I was provided with a letter from CADS which confirms that the appellant attended an assessment appointment on 19 September 2012 and then attended eight sessions. The date of his appointment is eight days after these offences. As I indicated to Mr Merrick in the course of the hearing I consider the appellant’s attendance at CADS, when weighed against his history, to be a contrived attempt to seek a benefit by way of mitigation in sentence. I regret that I am unable to attach any material weight to this. Serious

_{efforts to deal with his alcohol problems should have been made a long time ago.}

5 _{Clotworthy v Police (2003) 20 CRNZ 439.}

6 _{Jones v Police HC Wellington AP48/00, 14 April 2000.}

7 Police v Fox DC Christchurch CRN3009014972, 28 April 2003.

With respect, I agree that the Judge’s observations to the essential effect that the protection of the public is a paramount importance. In that regard reference may also be made to the commentary in Adams.8

[9] I am also satisfied that there was no error of principle in imposing cumulative sentences, as was acknowledged by Mr Merrick. The leading authority is the decision of the Court of Appeal in Hughes.9 In relation to the components of the total sentence – that is to say, 12 months and 9 months – and totality, I am again not persuaded that the end sentence was out of range. For comparative purposes reference may be made to decisions in Wilson v Police,10 Davies v Police11 and Hakiwai v Police,12 as well as Moon.13

[10] For these various reasons I am satisfied the appeal should be dismissed and it is dismissed accordingly.

_{Woodhouse J}

8 _{B Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [SA8.11].}

9 _{Hughes v R, above n 3.}

10 _{Wilson v Police [2006] DCR 655 (HC).}

11 _{Davies v Police HC Christchurch CRI2007-409-84, 10 May 2007.}

12 _{Hakiwai v Police [2012] NZHC 2625.}

13 Moon v Police, above n 2.