RURU v NEW ZEALAND POLICE [2018] NZHC 114

RURU v NEW ZEALAND POLICE [2018] NZHC 114 [13 February 2018]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2017-443-33[2018] NZHC 114BETWEEN HEREMIA REWIRI RURUAppellantAND NEW ZEALAND POLICERespondentHearing: 5 February 2018Counsel: J C Hannam for AppellantG N Milne for RespondentJudgment: 13 February 2018JUDGMENT OF THOMAS JIntroduction[1] Heremia Ruru was sentenced on 17 November 2017 in the New PlymouthDistrict Court to 15 months' imprisonment1 following a guilty plea for driving withexcess breath alcohol (third or subsequent).2 Mr Ruru now appeals his sentence onthe 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 hisrestricted licence conditions, Mr Ruru was found to be driving with a breath alcohollevel 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, $6,000fine.[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 imprisonmentsentences. One from 2010 (855 mg) and one from 2008 (862 mg) resulted incommunity work, and one from 2005 (518 mg) resulted in a fine.[4] Mr Ruru has several other convictions for a variety of offences, includingdisorderly 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 presentoffending, 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 toimprisonment on the current charge. It is his first child. He was not released for thebirth. His partner has written a letter to the Court indicating she is not coping withouthim, suffering from post-natal depression. She says his release to home detentionwould 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 relativelypersistent offending and his being on release conditions following imprisonment forviolent offending. It identified his insightfulness into his drink driving and hismotivation to change. The writer described Mr Ruru's compliance with his releaseconditions as "very good", and noted his self-referral to Narcotics Anonymous,completion of a Drive Straight programme for repeat drink drivers, and attempts tofind a place in the Bridge Programme. The writer considered remand to complete theBridge Programme was appropriate, with sentencing options to be considereddepending on the Programme outcome.[7] The second report flagged Mr Ruru's failure to complete the BridgeProgramme due to differences between Mr Ruru and the programme provider (theSalvation Army). The writer noted Mr Ruru nevertheless continued to attendNarcotics Anonymous, regularly met with a drug and alcohol counsellor, and had agood support network. The writer also noted Mr Ruru's partner was about to givebirth 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 asentence of home detention.District Court decision[8] The Judge focused on the factors in Clotworthy and Samson,3 and stated "threeor four" of the aggravating factors mentioned in those decisions were present in thiscase. Those factors warranted an 18-month starting point, uplifted by 2 months forprevious convictions. They were:(a) high blood alcohol level, which the Judge noted as being three timesthe legal limit;4(b) offending reasonably close in time to previous relevant convictions;and(c) previous convictions and sentences of imprisonment have not had adeterrent effect.[9] The Judge refused to give a discount for Mr Ruru's attempts at rehabilitationbecause he had failed to complete the Bridge Programme but applied a full 25 per centdiscount 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 shouldserve that by way of home detention or by way of imprisonment. The factorsdetermining whether or not a Judge should deal with the matter by way ofhome detention or imprisonment are whether or not your rehabilitation andreintegration take priority over denunciation and deterrence. I accept thathome detention is not a soft option, it has a considerable measure of deterrenceand denunciation. But clearly the message is not getting through to youMr 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 youby 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 ofblood but less than twice the level referred to in the charge of 400 micrograms of alcohol per litreof 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 toimpose home detention, specifically in:(a) failing to acknowledge the desirability of keeping offenders in thecommunity 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 toimpose home detention in all the circumstances. She draws attention to the relevantfactors in Clotworthy, and Court of Appeal comment in McQuillan that sentences foroffending 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 whereWhata J reduced the length of an appellant's sentence but declined to impose homedetention in lieu of imprisonment.[12] In light of those authorities, Ms Milne states that the Judge correctly identifiedaggravating features of the offending and imposed the least restrictive sentencepossible 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 sentenceand 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 thefactors outlined in Clotworthy.8 In McQuillan, the Court of Appeal said:9[22] Clotworthy provides a table of sentences for similar offending in boththe District and High Courts and a list of relevant sentencing factors. Both5 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, beremembered, as Wild J said, that sentencing is not an exact science and thatthe circumstances of offenders and offending, including of the present kind,are widely variable. Comparison with the sentencing outcomes analysed inClotworthy, and its list of relevant factors, accordingly does not dispense withthe need for the normal exercise of judgment by the sentencing Judge indeciding on the appropriate sentence in the circumstances of the case. Weapproach the question of whether the overall sentence imposed on theappellant 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 thistype must reflect the circumstances of each individual offender and the natureof his or her present and past offending rather than a mechanical increase inthe length of a sentence solely dependent upon the number of times a personhas 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 amenableto 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 senseof the jurisprudence, and with the assistance of counsel in this appeal and inBechan v Police, I have reviewed a number of authorities for the purpose ofidentifying where the current offending might sit in the spectrum of cases thathave come before this Court. As a result, I think some broad generalisationsabout 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. offendingof the worst kind), 20–24 months.[16] Seriously aggravating factors that appeared to resonate strongly in thesentencing process included a high level of intoxication, dangerous driving,very close proximity in previous EBA offending, and/or a prolonged andcontinuous history of driving-related offending. Conversely, the followingmitigating factors appeared significant in terms of the length of end sentenceand/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 tariffsor a complete list of matters to be considered. It is simply the outcome of acanvass of authorities which I have found useful for the purpose ofcommencing the finer grained assessment required in this appeal.Analysis[16] The Crown relies heavily on Bechan, where Whata J reduced Mr Bechan'ssentence from ten to eight months' imprisonment but declined to impose homedetention. Mr Bechan had four previous convictions in the past five years (despiteconsiderable time spend in home detention). His driving at the time was dangerousenough for the public to call police. Whata J noted that the offending in Bechan waslargely continuous, in contrast to the present case.[17] Whata J was intent on making sure the sentence fit the offending and theoffender's personal circumstances: his youth; his lack of a concurrent offence such asdriving while disqualified; and his lack of previous sentence of imprisonment. Thosepersonal circumstances clearly do not apply here.[18] However, Mr Ruru's own personal circumstances point to a sentence other thanthe one imposed. Mr Ruru is motivated to make and has made concerted efforts toaddress the underlying cause of his offending, so much so that the pre-sentence reportrecommended home detention. This is in direct contrast to Mr Bechan, whosecompletion of drink driving courses prior to the offending understandably did notconvince the report writer that they had been effective. Furthermore, Mr Bechan'slevel of alcohol, at 1048 micrograms per litre of breath, was significantly higher thanMr Ruru's.[19] In addition, Whata J was concerned that Mr Bechan had already been sentencedto a rehabilitative sentence, to no effect. The Judge referred to Hansch,11 where onappeal the offender was sentenced to community detention and intensive supervision11 Hansch v Police [2014] NZHC 2438.on his fifth EBA offence. Whata J noted the appellate judge considered Mr Hanschhad not received a sentence with a rehabilitative focus and the pre-sentence reportrecommended intensive supervision and community detention. Whata J consideredthose points of difference relevant, stating he would have been minded to give MrBechan a community-based sentence had it not been for his previous (andunsuccessfully 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 communitywork 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 hasdemonstrated high motivation to change.12[21] The Judge noted the users of New Zealand roads need to be protected fromMr Ruru by at least a term of imprisonment of 15 months. However, home detentionwould have precisely the same effect. Further, the most effective protection of thecommunity is successful rehabilitation so that the behaviour is not repeated.[22] In assessing whether home detention was appropriate, the Judge failed toproperly factor in Mr Ruru's personal reasons for leaving the Bridge Programme andthat he completed six of the eight week course before doing so. The Judge also failedto consider what was Mr Ruru's then concurrent and ongoing rehabilitation effortsoutside of the Bridge Programme and the letter of support from Mr Ruru's alcohol anddrug treatment counsellor. When those matters are properly considered, homedetention is an entirely viable option and the correct sentence. Home detention wouldbe the least restrictive outcome in the circumstances of this case.[23] At the hearing it became apparent that Mr Ruru's partner is currently residingat the address whereas the address was originally approved for home detention on thebasis Mr Ruru was the sole occupant. At my request, the Community ProbationService provided a memorandum following the hearing confirming Mr Ruru will bethe 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 continuedcommitment to change.Result[24] The appeal is allowed and the sentence of imprisonment is quashed. Thatsentence is substituted with a sentence of six months' home detention, with conditionsas recommended in the second pre-sentence report and the Community ProbationService memorandum, and 200 hours' community work. The conditions are:(a) Mr Ruru is to attend an assessment for a departmental programme asdirected by a probation officer. He is attend and complete anycounselling, treatment or programme as recommended by theassessment 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 aprobation officer. He is attend and complete any counselling, treatmentor programme as recommended by the assessment as directed by andto the satisfaction of a probation officer.(c) Mr Ruru is to attend and complete an appropriate programme directedat drink driving to the satisfaction of a probation officer. The specificdetails of the appropriate programme shall be determined by aprobation officer.(d) Mr Ruru is not to reside with his partner as named in the CommunityProbation Service memorandum unless approved by a probationofficer.[25] The sentence takes into account time Mr Ruru has already served in prison. Inlight of Mr Ruru's previous breaches of community-based sentences, I emphasise theneed to comply with the conditions of his sentence and warn him of the likelyconsequences of any breach.Thomas JSolicitors:Hannam and Co, New Plymouth for AppellantCrown Solicitor's Office, New Plymouth for Respondent