Aupouri v Police [2015] NZHC 1170 (28 May 2015)

High Court of New Zealand

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Aupouri v Police [2015] NZHC 1170 (28 May 2015)

Last Updated: 23 June 2015

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-000009 [2015] NZHC 1170

BETWEEN	LEHI HIRINI AUPOURI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 May 2015
Appearances:	N Wright for Appellant C R Walker for Respondent
Judgment:	28 May 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

AUPOURI v NEW ZEALAND POLICE [2015] NZHC 1170 [28 May 2015]

[1] Mr Aupouri pleaded guilty in the District Court to a third or subsequent offence of driving whilst disqualified, driving with excess breath alcohol and two charges of resisting police. On 27 March 2015, Judge Adeane sentenced Mr Aupouri to two years imprisonment on the lead charges of driving whilst disqualified and driving with excess breath alcohol.¹ He convicted and discharged Mr Aupouri on the remaining charges.

[2] Mr Aupouri now appeals against the sentence the Judge imposed. His counsel, Mrs Wright, argues that the Judge was under a misapprehension as to a material matter of fact when he sentenced Mr Aupouri, and that this led to him imposing a sentence that was manifestly excessive.

The facts

[3] The background facts are unremarkable. In the early hours of 26 December

2014, Mr Aupouri was driving a motor vehicle in Gisborne. A police patrol stopped his vehicle, and he was found to display signs of having recently consumed alcohol. The police officers then carried out a breath screening test, and this revealed that Mr Aupouri had more than 400 milligrams of alcohol per litre of breath.

[4] Whilst being placed inside the patrol vehicle, a scuffle occurred and Mr Aupouri attempted to escape. The police officers were eventually able to restrain him, but not before one of them suffered a significant cut to his right forearm. That incident has given rise to a charge of aggravated injury in respect of which Mr Aupouri has to date maintained a not guilty plea.

The Judge’s decision

[5] The Judge considered that Mr Aupouri was a recidivist offender when it comes to drink driving and driving whilst disqualified. This flows from the fact that Mr Aupouri has nine previous convictions for drunken driving since 2001, and eight previous convictions for driving whilst disqualified since the same date. The Judge

_{then went on to say:}

¹ New Zealand Police v Aupouri [2015] NZDC 5287.

[4] Of dominating significance, however, are that his most recent drunken driving occurred in 2013 and twice in 2012. On the last occasion he produced a breath alcohol reading of 1133 micrograms per litre of breath and he was imprisoned for six months. Significantly, the present offending, (the combination of drunken and disqualified driving) occurred just two months after the last previous conviction and sentencing had taken place. More than that, however, in 2008 there was a combination of drunken and disqualified driving; two particular offences which have a highly mutually aggravating character.

[6] The Judge accepted that Mr Aupouri’s personal circumstances were deserving of some sympathy. He considered, however, that Mr Aupouri is “an alcoholic with a hedonistic disregard for community expectations of behaviour or legal constraints and he drunken-drives and disqualified-drives as and where he sees fit”. The Judge considered this gave rise to obvious implications for public safety. That being the case, he adopted starting points of 15 months on each of the two lead charges and considered that they should be served cumulatively. Allowing a discount for early guilty pleas, the Judge imposed cumulative sentences of one year’s imprisonment on each charge.

[7] The Judge observed that such a sentence was important for two reasons. The first was to keep the public safe from Mr Aupouri, and the second was to deter Mr Aupouri from continuing to offend in this way.

The factual misunderstanding

[8] Mrs Wright points out that the paragraph from the sentencing remarks set out above demonstrates that the Judge was clearly under a significant misapprehension relating to Mr Aupouri’s previous offending. This is not surprising, because the summary of facts that was before the Judge recorded that Mr Aupouri had been convicted and sentenced on drink driving charges on 25 October 2014. This was just two months prior to the incident giving rise to the present charges. The Judge obviously considered that to be a serious aggravating factor, because he referred to the fact that Mr Aupouri’s most recent drunken driving convictions were “of dominating significance”.

[9] It now transpires that the summary of facts was incorrect. The previous incident to which the Judge occurred on 22 June 2013, and Mr Aupouri was

sentenced on 25 October 2013. That offending clearly did not occur within the two months of the present offending as the Judge justifiably believed.

Decision

[10] I consider that this issue is likely to have had a material influence on the Judge’s decision. It is therefore appropriate to reconsider afresh the sentence to be imposed on Mr Aupouri. Like the Judge, however, I am satisfied that Mr Aupouri is a recidivist offender when it comes to drink driving and driving whilst disqualified. Previous sentences have obviously not had the desired effect, because he continues to offend notwithstanding the fact that he has now received a variety of non- custodial sentences. This would justify the Court taking a sentencing approach that emphasises principles of deterrence and denunciation, and also the need to keep the community safe from further similar offending in the future.

[11] There is another factor, however, that is relevant in the present case. It stems from the fact that Mr Aupouri clearly has significant issues with alcohol abuse. These are demonstrated by the nature and number of his previous convictions. Mrs Wright submits that it is essential that this issue be addressed appropriately if there is to be any hope of stemming future offending of a similar type. If the issue is not addressed, the reality is that Mr Aupouri will serve his sentence and then reoffend again in a similar way.

[12] I agree that this is a significant issue in the present case and that the Court should, if possible, take steps to recognise it. One way in which this might be done is by imposing a sentence of home detention that is to be served not at Mr Aupouri’s home address, but rather at an institution such as Odyssey House where alcohol and drug addictions can be treated through residential admission. A sentence of home detention at Mr Aupouri’s home address would not be a viable option, because it would not provide adequate safeguards against him continuing to drink and then offend again.

[13] For that reason, had there been no complicating factors, I would have imposed a sentence that made provision for Mr Aupouri to apply for admission to a residential programme offered by an institution such as Odyssey House. The

complicating factor in the present case is that, as I have already indicated, Mr Aupouri continues to maintain his innocence in relation to the remaining charge of causing aggravated injury.

[14] Counsel advise me that that charge is to be the subject of a sentence indication hearing in the District Court on 4 June 2015. There is a possibility, however, that the hearing may need to be delayed because a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 may not be available. That charge complicates matters, because a sentence of imprisonment may be the only viable sentence available on the charge of causing aggravated injury.

[15] In order that all matters may be considered together, however, I consider it appropriate to direct that the charges to which Mr Aupouri has pleaded guilty be remitted to the District Court for reconsideration in terms of sentence. If possible, the sentences should be reimposed at the same time as any sentence imposed on the charge of aggravated injury. Although it will ultimately be a matter for the District Court, it also seems logical that if Mr Aupouri does not accept the sentence indication given on the charge of aggravated injury, then resentencing on the present charges should not be further delayed.

Result

[16] The appeal is allowed. The sentences of imprisonment on the charges of driving whilst disqualified and driving with excess breath alcohol are quashed. Those charges are remitted to the District Court for resentencing in accordance with the comments I have just made.

[17] Mrs Wright does not apply for bail pending resentence. That is sensible given the fact that Mr Aupouri needs to keep out of trouble between now and the time he is re-sentenced. He will therefore be remanded in custody to appear in the

_{District Court at Gisborne on 4 June 2015 at 10 am.}

Lang J

Solicitors:

Crown Solicitor, Gisborne