TUI v POLICE [2020] NZHC 635

TUI v POLICE [2020] NZHC 635 [24 March 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-42CRI-2019-488-43[2020] NZHC 635BETWEEN EUGENE JAMES TUIAppellantAND NEW ZEALAND POLICERespondentHearing: 16 March 2020Counsel: D J Watkins for AppellantM B Smith for RespondentJudgment: 24 March 2020JUDGMENT OF BREWER JThis judgment was delivered by me on 24 March 2020 at 4:00 pmRegistrar/Deputy RegistrarSolicitors:Watkins Law (Kaikohe) for AppellantMarsden Woods Inskip & Smith (Whangarei) for RespondentIntroduction[1] Mr Tui appeals his sentence of 15 months' imprisonment imposed on him byJudge DG Harvey on 21 November 2019.1 Mr Tui submits the sentence is manifestlyexcessive.[2] I will examine the circumstances relevant to Mr Tui's sentence to see whetherJudge Harvey was in error such that a different sentence should be substituted.Background[3] Mr Tui has a bad record of driving under the influence of alcohol and drivingwhile disqualified. He is a man of mature years having been born on 28 April 1976.He came before Judge GL Davis on 5 July 2019 for sentencing on his seventh drinkdriving conviction. He was also before Judge Davis for sentencing on his seventh andeighth charges of driving whilst disqualified.2 The eighth such charge arose fromdriving while he was on bail for the seventh such charge.[4] Judge Davis recognised that with this record of persistent offending, and withthe failure of previous sentences of imprisonment or electronic monitoring to deter orrehabilitate, he had few options available to him. The Judge said:[19] The thing that is going to save you today is that there is available toyou the alcohol interlock device. I am hopeful that a combination of a sentencethat locks you down and has conditions there about non-consumption ofalcohol, coupled with the alcohol interlock device on the car is going toprovide the appropriate public safety to the Court's satisfaction.[5] The Judge adopted a starting point of 28 months' imprisonment, being12 months' on the drink driving charge plus 16 months' imprisonment for the twodriving whilst disqualified charges. The Judge gave Mr Tui a reduction of 25 percentfor his pleas of guilty, making an end sentence of 21 months' imprisonment. TheJudge then commuted that sentence to one of 10 months' home detention. Conditionsattached to that sentence included a prohibition on possessing or consuming alcohol.1 Department of Corrections v Tui [2019] NZDC 23471.2 Police v Tui [2019] NZDC 13064.[6] Mr Tui lasted on home detention until 24 September 2019. On that date heremoved his bracelet and absconded. He surrendered to police some two days later.Alcohol featured in the absconding from home detention. All that Judge Harvey didwas take Mr Tui's sentence back to the sentence of imprisonment that would havebeen imposed by Judge Davis and then rounded downwards (and in Mr Tui's favour)to take account of the period of home detention Mr Tui had served before heabsconded. Hence the sentence of 15 months' imprisonment which is now appealed.[7] Therefore, although the appeal is necessarily against the sentence imposed byJudge Harvey, it will be determined by examining the decision of Judge Davis.The appeal[8] The grounds of appeal are:(a) Judge Davis's calculation of a 21 months period of imprisonment wasmanifestly excessive; and(b) The Judge erred in not ordering a s 27 cultural report.[9] As part of the appeal, Mr Watkins for Mr Tui has filed a s 27 report and hasapplied for leave to adduce it as evidence on the appeal. The Crown opposes on thebasis that it could not have made a difference to the sentence and adds nothing to theappeal.Discussion[10] On an appeal against sentence it is the sentence itself which has to be shownto be manifestly excessive before it will be reduced. The method adopted by thesentencing Judge might be shown to be in error, but that matters only if the errorflowed through to an end sentence which is manifestly excessive.[11] In this case, the end sentence of Judge Davis was 10 months' home detention.That was, by any account, a merciful sentence given the three charges for whichMr Tui was sentenced.[12] Mr Watkins assiduously referred me to cases which he submits suggest JudgeDavis's starting point was too high. In particular, Clotworthy v Police with its tableof comparator cases.3 Clotworthy was reviewed by Whata J in Samson v Police.4 Theguidelines were updated. In this case, my view is that Judge Davis's combined startpoint of 28 months' imprisonment was high, even bearing in mind the significantaggravating feature that the eighth driving while disqualified charge was committedwhile Mr Tui was on bail on the seventh driving while disqualified charge. However,the discount of 25 percent for the entry of guilty pleas was very generous. The pleaswere not entered at the first available opportunity and, given the overwhelmingstrength of the evidence, pleas were inevitable.[13] As I have said, it is the end sentence which is determinative. I agree withMr Watkins's candid submission:17. In summary the sentence by Davis DCJ was within the range open tohim. Counsel suggests in respect to the Clotworthy comparativestudies, the sentence is 1 month to 2 months higher. In comparison tothe Samson v Police case it is consistent with that pattern and thus thesentence shouldn't be disturbed.[14] The appeal ground alleging error in that the Judge did not order a s 27 culturalreport is misconceived. First, there is no entitlement to a s 27 report. The Court musttake into account an offender's personal, family, whanau, community, and culturalbackground in imposing a sentence.5 However, it is a matter of judicial discretion asto how much weight should be given to the personal circumstances of an offender,6and as to whether a s 27 report is likely to be helpful.7 Second, the absence of a s 27report will be relevant to an appeal against sentence only if it can be established thatthe contents of the report would have mitigated culpability to an extent making theend sentence manifestly excessive.[15] I have read the s 27 report obtained by Mr Watkins. It is not helpful to Mr Tui.A report which prompts a discount in sentence will illuminate a nexus between an3 Clotworthy v Police [2015] NZHC 57.4 Samson v Police [2015] NZHC 748.5 Sentencing Act 2002, s 8(i).6 Rudolph v R [2019] NZCA 451 at [33].7 Sentencing Act 2002, s 27(5).offender's background and her or his offending.8 Mr Tui's report describes howMr Tui's parents consumed a lot of alcohol during his early years. Further, that Mr Tuiran away from home at 13 years of age when he became a father. He turned to alcoholduring this time. The report notes that while Mr Tui regrets his offending, he does notperceive his alcohol consumption to be a problem. The report does not establish sucha nexus between Mr Tui's background and his offending that a reduction in sentenceshould result.Decision[16] The end sentence of 10 months' home detention was not manifestly excessive;it was merciful and imposed by an experienced Judge in conjunction with a directionas to the use of an alcohol interlock device in an attempt to give Mr Tui the best chanceof breaking the cycle of his offending. It did not work. Mr Tui absconded from hishome detention. Judge Harvey cannot be faulted for simply resentencing to the termof imprisonment (making allowance for the period already served on home detention)which would have been imposed by Judge Davis had he not commuted it to a sentenceof home detention.[17] The appeal is dismissed.________________________________Brewer J8 Solicitor-General v Heta [2018] NZHC 2453 at [50].