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High Court of New Zealand Decisions |
Last Updated: 7 May 2018
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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
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BETWEEN
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PAEA I VAHAFOLAU PALU
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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17 April 2018
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Appearances:
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R Ord for the Appellant
J R Crawford for the Respondent
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Judgment:
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20 April 2018
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JUDGMENT OF CULL J
[1] Mr Palu appeals his re-sentence of six months’ imprisonment, after breaching his home detention sentence, on charges of driving while disqualified1 and refusing a blood specimen.2 Mr Palu was re-sentenced on 12 February 2018 in the District Court at Nelson.3 A concurrent sentence of one months’ imprisonment was imposed for breaching home detention.4
[2] Mr Palu appeals his re-sentence on the grounds that the sentence was manifestly excessive. He does not appeal his sentence on the breach of home detention.
[3] The Crown opposes the appeal, arguing that the sentence is well within the acceptable range.
1 Land Transport Act 1998, s 32(1)(a) and (3); maximum penalty three months’ imprisonment.
2 Land Transport Act 1998, s 60(1)(a) and (3); maximum penalty two years’ imprisonment.
3 Department of Corrections v Palu [2018] NZDC 2557.
4 Sentencing Act 2002, s 80S(a); maximum penalty one year’s imprisonment.
PALU v NEW ZEALAND POLICE [2018] NZHC 758 [20 April 2018]
[4] The appeal is allowed. The sentence of six months’ imprisonment is quashed and a sentence of four months’ imprisonment is imposed, with the same post-release conditions and special release conditions as imposed by the original sentencing Judge. In addition, I direct that the defendant, on his release from prison, is to attend the Nelson Probation Centre, to be assessed and undertake drug and alcohol counselling at the earliest opportunity. All other post-release conditions will apply.
Factual background
[5] On 2 July 2015 Mr Palu was indefinitely disqualified from driving by the Manukau District Court. On 1 May 2009, Mr Palu was convicted of driving with excess breath alcohol in the Auckland District Court. On 30 July 2010, and again on 2 July 2015, Mr Palu was convicted of driving with excess breath alcohol in the Manukau District Court
[6] On 1 July 2017, Mr Palu was driving on High Street, Motueka, when he was stopped by police. He exhibited signs of recent alcohol intake and was required to undergo a breath screening test for alcohol. He refused, and was then required to accompany the officer to the Motueka Police Station for an evidential breath test. At the station, Mr Palu refused to undergo the breath test. Police then requested a sample of blood for analysis, which was also refused. He was sentenced to home detention with special conditions and was disqualified from driving indefinitely.
[7] On 10 February 2018, only a few weeks into his sentence for the latest offending, Mr Palu was discovered drinking alcohol at a friend’s house, in breach of the conditions of his home detention. Mr Palu had been involved in a dispute with his wife. When questioned by Police, Mr Palu admitted that he had been drinking every night.
District Court decisions
[8] On this appeal, it is important to have regard to the two District Court sentencing decisions, which are relevant to a consideration of the re-sentence of six months’ imprisonment.
Original sentencing decision
[9] On 23 January 2018, Mr Palu was sentenced to four months’ home detention on charges of driving while disqualified and refusing a blood specimen in the District Court at Nelson.5 The Judge noted Mr Palu’s previous convictions for drink driving, particularly the most recent, which had an alcohol count of 1207, which the Judge described as “unbelievably high”.6 The Judge said that the “first port of call” for a fourth drink-driving conviction was a sentence of imprisonment, but that home detention was appropriate in this case, because Mr Palu was supporting his wife and five children under 16 in full-time employment.7
[10] The Judge warned Mr Palu that if he ever drove drunk again, he would face a sentence of imprisonment regardless of his family situation.8 The Judge also said that, if he had considered imprisonment appropriate, he would have given Mr Palu a sentence of eight months’ imprisonment.9
[11] The home detention sentence included a condition not to possess, consume or use any alcohol or any non-prescribed drugs. There was also a condition to attend an intensive alcohol and drug abuse programme. Mr Palu was allowed to go to work while on home detention. Six months of post-detention conditions were also imposed, including a requirement to continue attending the intensive alcohol and drug abuse programme. Mr Palu was disqualified from driving indefinitely (for refusing a blood specimen) and for six months (for driving while disqualified).
Re-sentencing decision
[12] On 12 February 2018, Mr Palu was re-sentenced to six months’ imprisonment.10 This was done after Mr Palu accepted a sentencing indication earlier that same day.11 In the sentencing indication, the Judge calculated the six-month sentence on the basis that Mr Palu had served about a month of his home detention sentence, leaving three months left to serve (which would require a six-month sentence
5 Police v Palu [2018] NZDC 1950.
6 At [3].
7 At [5]-[6].
8 At [7].
9 At [8].
10 Department of Corrections v Palu, above n 3.
because of automatic parole for short-term sentences).12 The Judge also re-imposed standard release conditions and special release conditions reflecting the post-detention conditions.
The appellant’s circumstances
[13] Mr Palu is 32 years old. He is married with five children. He works as a butcher on the nightshift at a meat works. His employer regards him as competent, reliable and trustworthy, and was supportive of him continuing to work while on a community-based sentence.
[14] His pre-sentence report (for the original sentencing) identified a “harmful pattern of alcohol use”. Mr Palu reported consuming an entire box of beer every weekend. The report recommended home detention with special conditions and post- detention conditions relating to his alcohol abuse problem. An undated letter from The Salvation Army records that Mr Palu had enrolled in its Positive Lifestyle Program.
Approach on appeal
[15] An appeal against sentence is an appeal against a discretion. Section 250 of the Criminal Procedure Act 2011 requires the court to allow the appeal if:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[16] Whether the end sentence is “manifestly excessive” continues to be an important guide to finding an error.13 If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error in its sentencing approach.
12 At [1]-[2].
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
Mr Palu’s submissions
[17] Mr Ord submits that the re-sentencing Judge treated the eight-month sentence, being six months for drink driving plus two months for the driving while disqualified, as a pre-determined end-point, rather than considering the matter afresh. Mr Ord submits further that the eight months’ imprisonment was the starting point for the original sentencing decision and no discount was given for a guilty plea or any other mitigating factor.
[18] Mr Ord submits that the re-sentencing Judge erred, by starting at the eight months’ imprisonment as an end point, also without making any deduction for guilty pleas or personal circumstances. The re-sentencing Judge inferred that “the end prison sentence before home detention” was “in the order of eight months’ imprisonment”. As Mr Palu had served a month of home detention, the re-sentencing Judge reduced the sentence to six months’ imprisonment. Mr Palu, it is submitted, had not appreciated the length of the term of imprisonment when he accepted the sentencing indication and wished to appeal.
[19] It is submitted the sentence of six months was manifestly excessive and Mr Ord relies on the factors outlined by Wild J in Clotworthy v Police.14
[20] As Mr Palu only has approximately one month only left to serve on his sentence as at the time of this appeal, Mr Ord submits that a reduced sentence of four or five months’ imprisonment would be appropriate.
Crown submissions
[21] The Crown acknowledges that it appears that the starting point and end point by the original sentencing Judge was eight months’ imprisonment, but the Court can infer that the original sentencing Judge took into account factors which resulted in the end point of eight months’ imprisonment. The Crown accepts Mr Ord’s submissions in relation to the factors identified in Clotworthy v Police, but submits that those factors demonstrate that Mr Palu’s sentence was well within the acceptable range. An adjustment of one or two months would be “tinkering”.
14 Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [20].
[22] The Crown refers to the similar cases outlined in Clotworthy, where the sentences ranged from three to 12 months’ imprisonment, with an average of five to six months’ imprisonment. The Crown also refers to Samson v Police, where Whata J said that starting points in the region of nine to 12 months’ imprisonment for offending with only moderate aggravating factors are supported by the case law.15
Discussion
[23] This case concerns a repeat drink driver, who was driving while subject to an indefinite disqualification. The leading decision of Clotworthy remains a helpful guiding authority on the factors to be taken into account in sentencing for multiple EBA offending.16 Those factors are set out in the judgment and applying those factors to Mr Palu, they are as follows:17
(a) the level of blood alcohol is deemed to be high because Mr Palu refused to give blood when apprehended;
(b) the offending took place more than three years after the previous disqualification;
(c) the convictions were not in particularly close succession;
(d) there were no driving issues noted;
(e) the offender was driving while subject to indefinite disqualification;
(f) pleas of guilty were entered, although it is unknown at which stage this occurred;
(g) Mr Palu had never been sentenced to imprisonment, but was sentenced to three months’ community detention in 2015;
(h) Mr Palu has only had driving convictions, no other types of offending;
15 Samson v Police [2015] NZHC 748 at [15].
16 Clotworthy, above n 14.
17 At [20].
(i) Mr Palu has expressed his remorse by letter to this Court for the appeal hearing; and
(j) Mr Palu had been in full-time employment, which supported his family of his wife and five children. His wife is currently pregnant.
[24] The original sentencing Judge took into account the aggravating factor, that this is the fourth drink driving charge for Mr Palu, as well as his driving while disqualified. Against that, the Judge took into account the mitigating circumstances, that what would otherwise be a “usual prison sentence” was converted into home detention because Mr Palu was married with five children under 16 and was supporting his wife and family in full-time employment. The Judge notes specifically that if Mr Palu went to prison then his wife would be left alone with five children with no income other than a benefit.
[25] However, in noting these matters, the Judge appears to have decided an end sentence of eight months’ imprisonment, six months for the drink driving plus another two months for the driving while disqualified. He took into account that there would be automatic parole after Mr Palu served half of his sentence, which, when home detention is imposed, would be half the length of the equivalent prison sentence, because there is no parole on a home detention sentence.
[26] In reaching a decision on the length of imprisonment, it is unclear whether the starting point was six months for drink driving with an uplift of two months for the driving while disqualified, or whether the eight months’ imprisonment for both was in effect the starting point. No deduction was given for Mr Palu’s guilty plea or any of the factors outlined in Clotworthy, which may have resulted in a further deduction. Although the Judge mentioned that there had been no offending for the previous three years, no consideration was given to that factor nor the fact that Mr Palu had only the relevant driving convictions.
[27] After serving almost a month of his home detention, Mr Palu left his house, following a family dispute. He was discovered drinking alcohol at a friend’s house and on his arrest for breaching his home detention, his bail was opposed. This led to Mr Palu pleading guilty to a breach of his home detention condition on 12 February 2018. The re-sentencing Judge accepted the prosecution’s application to cancel and
substitute a sentence for home detention, at which point, the re-sentencing Judge gave a sentence indication. Mr Ord, who acted as his counsel at the time, advised that Mr Palu chose to plead guilty after a sentence indication of six months’ imprisonment, because he was going to be remanded in custody on the home detention breach. After he was sentenced Mr Palu instructed Mr Ord that he had not appreciated the length of the term and instructed him to appeal.
[28] Turning then to the re-sentencing of Mr Palu, the Judge inferred that the end prison sentence before home detention was eight months’ imprisonment. He then proceeded to deduct a months’ home detention sentence and “translated” that to six months’ imprisonment. He considered that six months would be by way of re-sentence for the previous charges and the breach of home detention.
[29] Mr Ord sought a lower prison sentence of four months, submitting that any uplift should have been proportional to the term of imprisonment.
[30] In Bechan v Police, Whata J traversed the Clotworthy factors where Mr Bechan appeared on his fifth EBA offence in four and a half years, where he came to the notice of the public on the last occasion, because of his dangerous driving.18 Whata J allowed Mr Bechan’s appeal against 10 months’ imprisonment, replacing it with an end sentence of eight months, noting that the escalation to a 10 month sentence did not properly reflect the escalation in the offending or the genuine, although unsuccessful, attempts made by Mr Bechan to address his offending. Whata J stated:
[16] But, I have come to the view that closer consideration should have been given in this case to the fact that this is the first sentence of imprisonment to be imposed on Mr Bechan. This reflects two important features. First, that Mr Bechan’s prior conduct has not previously demanded a sentence of imprisonment. Second, the escalation to a sentence of imprisonment of ten months does not immediately present itself as proportionate to the escalation in the offending.
[31] By comparison with Bechan and Samson,19 where Mr Samson had 10 previous convictions for EBA and disqualified driving type of offences over a period of six years, and his last drink driving offence involved unacceptable speed. Mr Palu’s case is more in line with the sentencing guidelines in Clotworthy.
18 Bechan v Police [2015] NZHC 747; Clotworthy, above n 14.
19 Bechan, above n 18; Samson, above n 15.
[32] This was the first time for Mr Palu to be imprisoned. He has a relatively short driving offence history of five incidents from 2009 to 2017 and his convictions were not in particularly close succession, the previous offending taking place three years after the last conviction.
[33] Understandably, a busy District Court Judge dealing with a busy daily list, giving a sentence indication, which was accepted, would not have had the benefit of the argument before this Court. However, it appears that the sentence of six months’ imprisonment was imposed by the Judge, on the basis of the end sentence imposed by the original sentencing Judge, without having regard to the guilty pleas to the home detention breach, the factors surrounding the breach, the personal circumstances of Mr Palu and the extent of his offending.
[34] I adopt Whata J’s approach in Bechan.20 Closer consideration should have been given, in this case, to the fact that this is the first sentence of imprisonment to be imposed on Mr Palu. A sentence of eight months’ imprisonment is disproportionate to the escalation in the offending and the circumstances surrounding it.
[35] I accept the submission of Mr Ord, that a low starting point of imprisonment was appropriate, with an uplift for the level of alcohol and repeat offending.
[36] In my view, a sentence of imprisonment was necessary to provide the appropriate deterrence in terms of future conduct for Mr Palu, to denounce his conduct, to hold him accountable and to ensure that the public are protected in the future. But a sentence of four months’ imprisonment was appropriate. A short and sharp sentence of imprisonment enables the reality of such offending to impact the offender, as well as discharging the other factors required in sentencing, including the least restrictive sentence for what is a relatively short driving offence history, his first sentence of imprisonment and denouncing his conduct.
[37] It appears that the sentence to date has already had an impact on Mr Palu. In his letter to the Court, he says:
Since I’ve been locked up I’ve had time to think and reflect on my problems and how I got myself in here. I’ve finally realised that being in jail is not only affecting me but also my family. They are suffering because I’m not out there
20 Bechan, above n 18.
to support and provide for them. I am truly sorry for my action and not obeying the law and putting the public at risk or in danger. I will not make the same mistake. I’ve learnt my lesson. I want to be with my wife and kids and support and provide for them. Please give me a chance to prove myself that I’ve changed.
[38] I am satisfied, on the basis of the authorities, the factors in Clotworthy and their recent application in Whata J’s judgments of Samson and Bechan, that a sentence of four months’ imprisonment was appropriate in Mr Palu’s case.
Result
Cull J
Crown solicitor, Nelson
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/758.html