Tutahi v Police [2014] NZHC 3354 (19 December 2014)

Last Updated: 13 February 2015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000053 [2014] NZHC 3354

BETWEEN	SAMANTHA TUTAHI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014
Appearances:	D J Blaikie for Appellant M Jarman-Taylor for Respondent
Judgment:	19 December 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]

This judgment is delivered by me on 19 December 2014 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

TUTAHI v NEW ZEALAND POLICE [2014] NZHC 3354 [19 December 2014]

Introduction

[1] On 11 December 2014 Ms Tutahi was sentenced by Judge Duncan Harvey in the District Court at Kaikohe to imprisonment for a total of two years and one month on charges of driving with excess breath alcohol and driving while disqualified (in each case, for the 3^rd or subsequent time).¹ An order that Ms Tutahi was subject to an indefinite disqualification from driving remained in place.

[2] Ms Tutahi has appealed against her sentence on the grounds that, in all the circumstances, the sentence was not appropriate.

Facts

[3] On 22 January 2013, Ms Tutahi was convicted in the District Court at Kaikohe on a charge that, being an unlicensed driver, she failed to comply with a prohibition. That was her ninth conviction for driving while disqualified or failing to comply with a prohibition. She was disqualified indefinitely. On 9 April 2014, Ms Tutahi was stopped by a patrol vehicle at Moerewa. She underwent an evidential breath test which returned a result of 1126 micrograms of alcohol per litre of breath. It was discovered that she was an unlicensed driver.

District Court judgment

[4] The Judge began by recording that he had read the pre-sentence report, a letter from Ms Kiro (a clinician at the Ngatihine Health Trust), and had heard from Ms Kiro in Court. He also referred to the submissions made on behalf of Ms Tutahi. His Honour noted that Ms Tutahi was addressing what was “clearly a very serious alcohol problem”. He considered that Ms Tutahi would be at a very high risk of re- offending if she drank again.

[5] The Judge noted that Ms Tutahi has an “extremely worrying” list of previous convictions. The Judge noted seven previous convictions for driving with excess alcohol, between 2004 and 2013. Her alcohol levels had been on occasions

_{“spectacularly high” (in all but one case more than twice the limit).}

¹ NZ Police v Tutahi DC Kaikohe CRI 2014-027-558, 11 December 2014.

[6] After referring to the purposes and principles of sentencing, the Judge referred to the recommendation in the pre-sentence report that Ms Tutahi be sentenced to home detention and supervision. He referred also to Mr Blaikie’s submission that given the steps that Ms Tutahi had taken to address her problem, the appropriate sentence was supervision. However, while understanding Ms Tutahi’s difficult background, and a lack of support from whanau in addressing the problem, the Judge concluded that she had to be sentenced on the basis of what she had done, and her history.

[7] The Judge concluded that if he were not to sentence Ms Tutahi to imprisonment, it would be unfair to all those people who had previously been imprisoned for similar offending. However, he considered it appropriate to make an allowance for the fact that she had done a great deal towards overcoming her problem. On that basis, the Judge allowed a discount for Ms Tutahi’s guilty pleas (which he said were very late, and made only on the morning of a scheduled defended hearing) and sentenced Ms Tutahi to 15 months’ imprisonment on the charge of driving with excess breath alcohol, and to 10 months’ imprisonment on the charge of driving while disqualified, cumulative on the first sentence.

[8] The Judge stressed to Ms Tutahi that she would be eligible for release much earlier under that sentence than she would have been had she been sentenced to imprisonment for 23 months.

Appeal submissions

[9] For Ms Tutahi, Mr Blaikie submitted that the Judge may not have had full information as to Ms Tutahi’s guilty pleas. He submitted that there was some doubt as to some factual matters, and until such time as that was resolved, it was not appropriate to enter guilty pleas. He submitted that the pleas were entered as soon as those issues were resolved.

[10] Mr Blaikie submitted that while the sentence was “on the severe side”, he could not realistically contend that it was manifestly excessive. However, he submitted that a sentence of imprisonment rather than a community-based sentence

was inappropriate in all the circumstances. He submitted that the Judge had given too little credit and weight to the significant efforts Ms Tutahi had made to overcome a serious and entrenched alcohol problem.

[11] Mr Blaikie submitted that there was a long history of alcohol abuse within Ms Tutahi’s family, and that since her early teens she had been in a very violent, unstable relationship with her partner who also had a significant alcohol problem. He submitted that it was very clear that Ms Tutahi was making very substantial progress in her rehabilitation, and that it had occurred in the residential programme in which she was engaged. She had remained in the programme for six months, extending her participation within the programme. She had done more than “last the course”; she was making real progress. At the time of her sentencing, she was reaching the stage of transition to the “post-graduation” stage of the programme. Mr Blaikie advised that he understood that Ms Tutahi would not be able to re-join the programme on her release from prison, but acknowledged that she may be able to undertake the programme afresh.

[12] Mr Blaikie submitted that at about the time that Ms Tutahi was nearing the end of the programme, her partner began to make demands of her which led her to realise that she could not make necessary changes in her life while in that relationship. Deciding to move and live with a non-drinking relative would assist in Ms Tutahi’s rehabilitation, but at the cost of reduced contact with her young child. However, as at the time of her sentencing, she had not been able to present a firm proposal to the Judge. He accepted that the address where she was living at the time of her arrest was not suitable for a community-based sentence.

[13] Mr Blaikie submitted that the Judge gave Ms Tutahi little credit for the six months spent in residential rehabilitation. The Ngatihine programme is regarded as probably the best in the Northland area, and particularly effective in dealing with younger Maori offenders. Mr Blaikie submitted that there is a significant distinction between Ms Tutahi’s engagement with the Ngatihine programme and that undertaken by the appellant in Koopu v Police, in which Woodhouse J was sceptical of the appellant’s attendance at a CADS course as being a cynical attempt to influence

sentencing.² Mr Blaikie also submitted that imprisonment would not have been the outcome had Ms Tutahi been eligible for a dedicated Alcohol and Drug Court, such as is available in the Auckland and Waitakere Courts.

[14] For the respondent, Ms Jarman-Taylor submitted that there was no error in Ms Tutahi’s sentence. She submitted that Ms Tutahi’s history rendered her unsuitable for a community-based sentence. Further, she submitted that in a case where an offender has consistently driven with a breath alcohol level that is more than twice the legal limit, and has driven while disqualified or unlicensed, protection of the public is a paramount consideration. Ms Jarman-Taylor also referred me to

the comments of Woodhouse J in Koopu, to this effect.³

Approach on appeal

[15] Section 244 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against sentence. Pursuant to s 250(2), the court hearing the appeal must allow the appeal if the court is satisfied that, for any reason, there is an error in the sentence imposed, and that a different sentence should be imposed. Pursuant to s 250(3), in any other case, the Court must dismiss the appeal.

[16] This section confirms the approach taken by the courts under the Summary Proceedings Act 1957. In its judgment in Tutakangahau v R, the Court of Appeal held that s 250 did not effect any change to the approach taken under the Summary Proceedings Act.⁴ Rather, s 250(2) reflects a “synthesis or rationalisation of the existing provisions to provide a single test for those sentence appeals previously dealt with under two differently worded provisions.⁵ The Court of Appeal referred to its decision in R v Shipton, in which it held that:⁶

a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

² _{Koopu v Police [2013] NZHC 1356.}

³ _{At [8].}

⁴ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].}

⁵ _Ibid.

⁶ R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17] The Court of Appeal in Tutakangahau also referred to its decision in

Te Aho v R, where it said:⁷

This Court does not lightly quash a sentence of imprisonment, and in the absence of a material error in the sentencing process which requires a re- assessment of the sentence, or a clearly excessive sentence, will not intervene.

... it must be shown that the sentence is manifestly excessive or wrong in

principle, or there must be exceptional circumstances.

Discussion

[18] As noted earlier, Mr Blaikie did not contend that the sentence was manifestly excessive. For Ms Tutahi to succeed in her appeal, the Court must be satisfied that there was a material error in sentencing, of a different kind.

[19] Ms Tutahi is to be commended for, and encouraged in, the steps she has taken to address her alcohol abuse. It is apparent from the Judge’s comments that his Honour accepted that she had made a genuine effort to address the problem. There is no suggestion in his Honour’s comments that he saw the steps she had taken as being “a contrived attempt to seek a benefit by way of mitigation”, as was the case in Koopu.

[20] The Judge was placed in a difficult position when sentencing Ms Tutahi, in that her history, and the current offending, required a deterrent sentence. Here, the principle of protection of public safety was paramount. Furthermore, while Ms Tutahi’s rehabilitative steps were before him, the Judge was not able to consider any firm proposal (in particular, as to where she could live) which might have led him to give serious consideration to a rehabilitative community-based sentence.

[21] The Judge recognised Ms Tutahi’s “enormous” rehabilitative steps, but in doing so, he erred by imposing a sentence that incorporated an expected outcome of an application for parole. That is, he sentenced her to 25 months’ imprisonment in the expectation that she would be granted parole at the earliest available opportunity;

_{that is, after one third of the sentence (in this case, about eight months). Parole}

⁷ Te Aho v R [2013] NZCA 47 at [30].

eligibility is an irrelevant consideration at sentencing.⁸ The proper course was to give specific recognition of the rehabilitative steps by way of a discount.

[22] In the circumstances, I have concluded that there was a material error in the Judge’s sentence, which justifies this Court interfering on appeal, and re-sentencing Ms Tutahi. I have concluded that an appropriate starting point for the charge of driving with excess breath alcohol would have been 12 months’ imprisonment, and

10 months’ imprisonment for the charge of driving while disqualified (allowing for totality). A discount of 15 percent is available to recognise Ms Tutahi’s rehabilitative steps, and a further discount of 15 percent is available for her guilty pleas. That leads to an end sentence of 15 months’ imprisonment, imposed as nine months for the excess alcohol charge and six months for driving while disqualified, to be served cumulatively.

[23] I have concluded that such a sentence appropriately recognises both the relevant purposes of sentencing, and Ms Tutahi’s rehabilitative steps. Further, I have concluded that a sentence of home detention (with appropriate conditions as to Ms Tutahi’s attendance at the Ngatihine programme) could be imposed if a suitable address is identified.

Result

[24] Accordingly, Ms Tutahi’s appeal against sentence is allowed. Pursuant to s 251(2(c) of the Criminal Procedure Act, Ms Tutahi’s sentence is remitted back to the District Court at Whangarei, with a direction that she be sentenced in accordance

_{with paragraph [23] of this judgment.}

_{Andrews J}

⁸ Hall’s Sentencing (online looseleaf ed. LexisNexis) at [APPII.5.4].