OLTACHES v NEW ZEALAND POLICE [2021] NZHC 908

OLTACHES v NEW ZEALAND POLICE [2021] NZHC 908 [27 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000108[2021] NZHC 908BETWEEN ALF ULFSBY OLTACHESAppellantAND NEW ZEALAND POLICERespondentHearing: 27 April 2021Appearances: E Butler and S Su'a for AppellantT Riley for RespondentJudgment: 27 April 2021ORAL JUDGMENT OF VENNING JSolicitors: Public Defence Service, ManukauKayes Fletcher Walker Ltd, Manukau[1] Alf Oltaches pleaded guilty to driving with excess breath alcohol on a third orsubsequent occasion. Judge T V Clark sentenced him to 15 months' imprisonment butgranted him leave under s 80I of the Sentencing Act 2002 to apply for home detention.1The Judge stated "the only way that that will happen is if you apply to be released intoa residential drug and alcohol programme." 2[2] Mr Oltaches appeals the decision. He submits the proper sentence was homedetention to the address he had proposed.[3] In the early hours of the morning on 20 July 2020 Mr Oltaches was driving aToyota car on Magic Way in Randwick Park. He was seen by the Police to turn rightthrough a red light from Alfriston Road onto Magic Way. When stopped by the Policehe showed signs of recently consuming alcohol. A breath alcohol sample was takenwhich showed a reading of 1,326 micrograms of alcohol per litre of breath.[4] Mr Oltaches has six previous convictions dating from 1987 for driving withexcess breath alcohol. The most recent was 2013. In addition he has convictions fordriving whilst disqualified or without a current licence.[5] The Judge took a starting point of imprisonment of 18 months for theoffending, uplifted that by two months to recognise Mr Oltaches' previous convictionhistory and then applied a 25 per cent discount for his guilty plea leading to the endsentence of 15 months' imprisonment. The Judge then noted:[13] I am granting you leave under s 80I of the Sentencing Act 2002 toapply for home detention but the only way that will happen is if you apply tobe released into a residential drug and alcohol programme.[6] The Judge then imposed the conditions of an alcohol interlock sentence andrelease conditions.[7] In support of the appeal Mr Butler submits the District Court Judge erred inimposing an uplift on account of Mr Oltaches' previous criminal convictions and the1 New Zealand Police v Oltaches [2021] NZDC 2648.2 At [13].Judge erred in declining to impose a sentence of home detention to the proposedaddress, that being the least restrictive sentence.[8] Mr Butler argued that when the offence charged is a third or subsequent chargeit is inherent in the charge that previous convictions are taken into account. Whenfixing a starting point for drink driving offending previous convictions are consideredto determine the gravity of the offending and overall culpability whether implicitly orexplicitly.[9] In Lal v Police this Court observed that:3 inherent in charges of driving with excess breath alcohol and driving whiledisqualified in the aggravated forms is that the offending has occurred on threeor more occasions. But the number of such further occasions is an aggravatingfactor.[10] From my experience, I have to say I agree with counsel for the respondent, MrRiley's submission that, while it is general practice of sentencing judges to take intoaccount an offender's relevant criminal history when setting the sentence starting pointfor drink driving offending, the practice is not entirely uniform. It is not mandatedeither by the legislation or by authority.[11] The short point however in the present case is that given the aggravatingfeatures of Mr Oltaches' offending in this case, both the specific instances of thisoffending and given his past history, a starting point of 20 months was open to theJudge. As noted, while qualifying as a third or subsequent offence, this was in fact MrOltaches' seventh offence of driving with excess breath alcohol. The reading was asignificantly high one at 1,326 micrograms. Further, his driving involved drivingthrough a red light and turning right across an intersection. Given his history and thebackground to this offence, a starting point of 20 months (against a maximum sentenceof two years' imprisonment) was open to the Judge.[12] The end sentence of 15 months' imprisonment could be looked at another way.Even if 18 months had been taken as the starting point, as Mr Butler submits, in lightof the evidence available to the Court, namely the observations of the police officers3 Lal v Police [2017] NZHC 1944 at [20].and the breath alcohol test, the police case was strong and a full discount of 25 percent for the guilty plea could perhaps be regarded as overly generous.[13] Whichever way it is approached the end sentence of 15 months' imprisonmentwas open to the Judge before considering whether home detention was available. Inote of course that in Tutakangahau v R the Court of Appeal confirmed the focus ofsentence appeals is on the sentence imposed rather than the process by which thesentence was reached.4[14] In summary, I do not consider, before addressing the issue of home detention,that the end sentence of 15 months' imprisonment in this case could be said to bemanifestly excessive.[15] That leaves the issue of home detention which was the focus of Mr Butler'ssubmissions. He argued that the least restrictive outcome available to the Court wasthe sentence of home detention which would have provided Mr Oltaches with theopportunity to engage in rehabilitation. Such opportunity is not available to him inprison. Mr Butler referred to the provisions of s 16 and the observations of the Courtof Appeal that imprisonment is a measure of last resort and that offenders should bekept in the community wherever appropriate.5[16] While I understand the submission, in Mr Oltaches' case it has to be observedthat he has had several opportunities in the past to address his alcohol issue and alsoto attend a rehabilitative course to address his offending.[17] In declining the proposed home detention address the Judge acknowledged thatat the heart of the appellant's offending was his alcohol abuse, but the Judge was awarethat one of Mr Oltaches' special conditions of release in the past had been that heattend assessment for an alcohol and drug programme in that he was referred to CareNZ. However, he had failed to successfully complete that programme and in fact wasexited for non-compliance. Mr Butler emphasised that in other cases appellants hadbeen given second chances and that other conditions could be attached to the home4 Tutakangahau v R [2014] NZCA 279.5 Fairbrother v R [2013] NZCA 340 at [23].detention sentence to provide for Mr Oltaches' rehabilitative needs. Against that theredoes come a time when the need for deterrence and the safety of the community musttake precedence over the possible rehabilitative needs of the offender. That time hasbeen reached with this appellant.[18] An important consideration in determining whether EM bail or a sentence ofhome detention is appropriate will be the suitability of the proposed address and thesupport available to the defendant or offender there. The address proposed was MrOltaches' home address, an address he was residing at when the offending occurred.It was open to the Judge to reject that address as unsuitable as it would not provide thesupport necessary to assist Mr Oltaches to address his alcohol issues.[19] There is however one issue with the sentence and the way the Judge expressedit that perhaps should be clarified. Section 80I provides:80I Leave to apply for cancellation of sentence of imprisonment andsubstitution of sentence of home detention in certain cases(1) This section applies if—(a) a court has sentenced an offender to a short-term sentence ofimprisonment; and(b) at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitableresidence had been available.(2) At the time of sentencing, the court must make an order granting theoffender leave to apply to the court of first instance for cancellationof the sentence of imprisonment and substitution of a sentence ofhome detention if the offender finds a suitable residence at a later date.[20] The only qualification the section contemplates is that the proposed residencemust be "suitable". The further qualification the Judge sought to impose as acondition, namely that home detention would only be granted to a residential drug andalcohol programme, however well intentioned, does not appear to be permitted by thelegislation.[21] It seems to me that it may be a matter of how the point is expressed. I note thatin the case of Sands v New Zealand Police this Court granted leave to apply for homedetention should a properly supervised position become available.6 Rather than fixingit as a condition as the District Court Judge sought to do in this case, the Judge couldhave indicated, when granting leave to apply for home detention, that a suitableresidential programme would be looked at favourably, but I do not consider she wasentitled to make it an express condition of a grant of leave. Of course, any proposedaddress that did not enable Mr Oltaches' specific needs to have been addressed wouldnot be likely to be assessed as suitable.[22] In the present case the proposed address did not address his rehabilitative needsand was therefore unsuitable. Unfortunately, in the circumstances, prison remains theleast restrictive outcome necessary to address the safety of the community and todenounce and deter Mr Oltaches' actions.Result[23] For the above reasons, the appeal is dismissed.__________________________Venning J6 Sands v New Zealand Police [2018] NZHC 3048 at [31].