Ruru v Police [2018] NZHC 114 (13 February 2018)

Last Updated: 7 March 2018

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-443-33 [2018] NZHC 114

BETWEEN	HEREMIA REWIRI RURU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 February 2018
Counsel:	J C Hannam for Appellant G N Milne for Respondent
Judgment:	13 February 2018

JUDGMENT OF THOMAS J

Introduction

[1] Heremia Ruru was sentenced on 17 November 2017 in the New Plymouth District Court to 15 months’ imprisonment¹ following a guilty plea for driving with excess breath alcohol (third or subsequent).² Mr Ruru now appeals his sentence on the grounds the Judge erred in not sentencing Mr Ruru to home detention.

Factual background

[2] Mr Ruru is 30 years of age. At 4.21 am on 30 April 2017, in breach of his restricted licence conditions, Mr Ruru was found to be driving with a breath alcohol level of 740 micrograms per litre of breath.

¹ New Zealand Police v Ruru [2017] NZDC 26367.

2. Land Transport Act 1998, s 56(1) and 56(4); maximum penalty 2 years’ imprisonment, $6,000 fine.

RURU v NEW ZEALAND POLICE [2018] NZHC 114 [13 February 2018]

[3] Mr Ruru has five previous convictions for driving with excess breath alcohol. Two from 2015 (readings 1143 mg and 884 mg) resulted in six-month imprisonment sentences. One from 2010 (855 mg) and one from 2008 (862 mg) resulted in community work, and one from 2005 (518 mg) resulted in a fine.

[4] Mr Ruru has several other convictions for a variety of offences, including disorderly behaviour, theft, assault, wilful damage, and wounding with intent to injure. The latter resulted in a two-year sentence of imprisonment. At the time of the present offending, Mr Ruru was on release with conditions from that sentence.

[5] Mr Ruru’s partner gave birth to their child the day after he was sentenced to imprisonment on the current charge. It is his first child. He was not released for the birth. His partner has written a letter to the Court indicating she is not coping without him, suffering from post-natal depression. She says his release to home detention would allow him to be the father their son deserves.

Pre-sentence report

[6] There are two pre-sentence reports. The first flagged Mr Ruru’s relatively persistent offending and his being on release conditions following imprisonment for violent offending. It identified his insightfulness into his drink driving and his motivation to change. The writer described Mr Ruru’s compliance with his release conditions as “very good”, and noted his self-referral to Narcotics Anonymous, completion of a Drive Straight programme for repeat drink drivers, and attempts to find a place in the Bridge Programme. The writer considered remand to complete the Bridge Programme was appropriate, with sentencing options to be considered depending on the Programme outcome.

[7] The second report flagged Mr Ruru’s failure to complete the Bridge Programme due to differences between Mr Ruru and the programme provider (the Salvation Army). The writer noted Mr Ruru nevertheless continued to attend Narcotics Anonymous, regularly met with a drug and alcohol counsellor, and had a good support network. The writer also noted Mr Ruru’s partner was about to give birth to their first child and that Mr Ruru had recently reconnected with his whānau.
Mr Ruru was assessed as being highly motivated and the writer recommended a sentence of home detention.

District Court decision

[8] The Judge focused on the factors in Clotworthy and Samson,³ and stated “three or four” of the aggravating factors mentioned in those decisions were present in this case. Those factors warranted an 18-month starting point, uplifted by 2 months for previous convictions. They were:

(a) high blood alcohol level, which the Judge noted as being three times the legal limit;⁴

(b) offending reasonably close in time to previous relevant convictions; and

(c) previous convictions and sentences of imprisonment have not had a deterrent effect.

[9] The Judge refused to give a discount for Mr Ruru’s attempts at rehabilitation because he had failed to complete the Bridge Programme but applied a full 25 per cent discount for Mr Ruru’s guilty plea. The Judge then considered home detention:

[5] The next step I need to take is to decide whether or not you should serve that by way of home detention or by way of imprisonment. The factors determining whether or not a Judge should deal with the matter by way of home detention or imprisonment are whether or not your rehabilitation and reintegration take priority over denunciation and deterrence. I accept that home detention is not a soft option, it has a considerable measure of deterrence and denunciation. But clearly the message is not getting through to you Mr Ruru, and I am not prepared to give you home detention on this occasion. I believe that the users of New Zealand roads need to be protected from you by at least a term of imprisonment of 15 months.

³ Clotworthy v Police (2003) 20 CRNZ 439 (HC); and Samson v Police [2015] NZHC 748.

4. The level was almost three times the infringement limit of 250 micrograms of alcohol per litre of blood but less than twice the level referred to in the charge of 400 micrograms of alcohol per litre of breath (Land Transport Act 1988, s 56(1A) and (4).

Submissions

[10] Mr Hannam, counsel for Mr Ruru, submits that the Judge erred in failing to impose home detention, specifically in:

(a) failing to acknowledge the desirability of keeping offenders in the community if it is in keeping with public safety;⁵ and

(b) giving insufficient weight to Mr Ruru’s rehabilitative efforts.

[11] Ms Milne, counsel for the Crown, submits it was open to the Judge not to impose home detention in all the circumstances. She draws attention to the relevant factors in Clotworthy, and Court of Appeal comment in McQuillan that sentences for offending of this type will be variable, depending on the circumstances of the case, and the circumstances of the offender.⁶ She says there are analogies to Bechan,⁷ where Whata J reduced the length of an appellant’s sentence but declined to impose home detention in lieu of imprisonment.

[12] In light of those authorities, Ms Milne states that the Judge correctly identified aggravating features of the offending and imposed the least restrictive sentence possible in the circumstances.

Law

[13] The appeal proceeds on the basis of s 250 of the Criminal Procedure Act 2011, where the appellate court must allow an appeal if it first finds an error in the sentence and is then satisfied that a different sentence ought to be imposed.

[14] There is no tariff case for this offending, although counsel often refer to the factors outlined in Clotworthy.⁸ In McQuillan, the Court of Appeal said:⁹

[22] Clotworthy provides a table of sentences for similar offending in both the District and High Courts and a list of relevant sentencing factors. Both

⁵ Section 16(1) of the Sentencing Act 2002.

⁶ R v McQuillan CA129/04, 12 August 2004.

⁷ Bechan v Police [2015] NZHC 747.

⁸ Clotworthy, above n 3.

⁹ McQuillan, above n 6.

clearly provide valuable guidance in sentencing. It must, however, be remembered, as Wild J said, that sentencing is not an exact science and that the circumstances of offenders and offending, including of the present kind, are widely variable. Comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, accordingly does not dispense with the need for the normal exercise of judgment by the sentencing Judge in deciding on the appropriate sentence in the circumstances of the case. We approach the question of whether the overall sentence imposed on the appellant by the District Court Judge was manifestly excessive on this basis. In so doing, we are mindful that the choice of a sentence for offending of this type must reflect the circumstances of each individual offender and the nature of his or her present and past offending rather than a mechanical increase in the length of a sentence solely dependent upon the number of times a person has been convicted of a particular type of offence.

[15] The more recent decisions of Whata J in Bechan and Samson are also helpful.
In Samson, Whata J summarised his position as follows:¹⁰

[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:

(a) No seriously or only moderately aggravating factors, 9–12 months;

(b) One or more seriously aggravating factors, 12–18 months;

(c) Multiple offences with seriously aggravating factors, 18–20 months; and

(d) Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20–24 months.

[16] Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending. Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):

(a) The absence of seriously aggravating factors;

(b) High levels of remorse;

(c) Genuine attempts to address the underlying causes of the offending;

¹⁰ Samson, above n 3.

(d) No previous sentence of imprisonment;

(e) No previous sentence with a rehabilitative focus; and/or

(f) Lengthy gaps between the current and prior offending.

[17] To be clear, the foregoing summary does not purport to provide tariffs or a complete list of matters to be considered. It is simply the outcome of a canvass of authorities which I have found useful for the purpose of commencing the finer grained assessment required in this appeal.

Analysis

[16] The Crown relies heavily on Bechan, where Whata J reduced Mr Bechan’s sentence from ten to eight months’ imprisonment but declined to impose home detention. Mr Bechan had four previous convictions in the past five years (despite considerable time spend in home detention). His driving at the time was dangerous enough for the public to call police. Whata J noted that the offending in Bechan was largely continuous, in contrast to the present case.

[17] Whata J was intent on making sure the sentence fit the offending and the offender’s personal circumstances: his youth; his lack of a concurrent offence such as driving while disqualified; and his lack of previous sentence of imprisonment. Those personal circumstances clearly do not apply here.

[18] However, Mr Ruru’s own personal circumstances point to a sentence other than the one imposed. Mr Ruru is motivated to make and has made concerted efforts to address the underlying cause of his offending, so much so that the pre-sentence report recommended home detention. This is in direct contrast to Mr Bechan, whose completion of drink driving courses prior to the offending understandably did not convince the report writer that they had been effective. Furthermore, Mr Bechan’s level of alcohol, at 1048 micrograms per litre of breath, was significantly higher than Mr Ruru’s.

[19] In addition, Whata J was concerned that Mr Bechan had already been sentenced to a rehabilitative sentence, to no effect. The Judge referred to Hansch,¹¹ where on appeal the offender was sentenced to community detention and intensive supervision

¹¹ Hansch v Police [2014] NZHC 2438.

on his fifth EBA offence. Whata J noted the appellate judge considered Mr Hansch had not received a sentence with a rehabilitative focus and the pre-sentence report recommended intensive supervision and community detention. Whata J considered those points of difference relevant, stating he would have been minded to give Mr Bechan a community-based sentence had it not been for his previous (and unsuccessfully deterrent) home detention sentence.

[20] Although Mr Ruru has been imprisoned for this type of offending before, similar arguments apply. He was sentenced to community detention and community work on his third offence but he has not had a sentence with a rehabilitative focus and, more particularly, he has not had such a sentence imposed at a time when he has demonstrated high motivation to change.¹²

[21] The Judge noted the users of New Zealand roads need to be protected from Mr Ruru by at least a term of imprisonment of 15 months. However, home detention would have precisely the same effect. Further, the most effective protection of the community is successful rehabilitation so that the behaviour is not repeated.

[22] In assessing whether home detention was appropriate, the Judge failed to properly factor in Mr Ruru’s personal reasons for leaving the Bridge Programme and that he completed six of the eight week course before doing so. The Judge also failed to consider what was Mr Ruru’s then concurrent and ongoing rehabilitation efforts outside of the Bridge Programme and the letter of support from Mr Ruru’s alcohol and drug treatment counsellor. When those matters are properly considered, home detention is an entirely viable option and the correct sentence. Home detention would be the least restrictive outcome in the circumstances of this case.

[23] At the hearing it became apparent that Mr Ruru’s partner is currently residing at the address whereas the address was originally approved for home detention on the basis Mr Ruru was the sole occupant. At my request, the Community Probation Service provided a memorandum following the hearing confirming Mr Ruru will be the sole occupant of the address and the address therefore remains suitable.

12. Mr Ruru wrote a letter to the Court for the purpose of the appeal emphasising his continued commitment to change.

Result

[24] The appeal is allowed and the sentence of imprisonment is quashed. That sentence is substituted with a sentence of six months’ home detention, with conditions as recommended in the second pre-sentence report and the Community Probation Service memorandum, and 200 hours’ community work. The conditions are:

(a) Mr Ruru is to attend an assessment for a departmental programme as directed by a probation officer. He is attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.

(b) Mr Ruru is to attend an assessment for substance use as directed by a probation officer. He is attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.

(c) Mr Ruru is to attend and complete an appropriate programme directed at drink driving to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.

(d) Mr Ruru is not to reside with his partner as named in the Community Probation Service memorandum unless approved by a probation officer.

[25] The sentence takes into account time Mr Ruru has already served in prison. In light of Mr Ruru’s previous breaches of community-based sentences, I emphasise the need to comply with the conditions of his sentence and warn him of the likely consequences of any breach.

Thomas J

Solicitors:

Hannam and Co, New Plymouth for Appellant

Crown Solicitor’s Office, New Plymouth for Respondent