VELLA v NEW ZEALAND POLICE [2021] NZHC 1518

VELLA v NEW ZEALAND POLICE [2021] NZHC 1518 [24 June 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-18[2021] NZHC 1518BETWEEN MARIANO HAPAI VELLAAppellantAND NEW ZEALAND POLICERespondentHearing: 23 June 2021 (AVL)Counsel: D E Foster for Appellant E R Pairman for RespondentJudgment: 24 June 2021JUDGMENT OF SIMON FRANCE J[1] Mr Vella appeals a sentence of one year, one month and 14 days' imprisonment in relation to three charges of driving while disqualified (being his 24th , 25th and 26thsuch conviction) and two of breaching community detention.[2] The appeal ground is that the Judge erred "in not considering the principles of "Te Ao Mārama" and as a consequence the sentence is manifestly excessive. The excess comes from not imposing an outcome other than imprisonment.[3] Te Ao Mārama is the name of a "transformative" model announced by the Chief District Court Judge, Judge Taumaunu, in a lecture given in November 2020. A key plank is the mainstreaming to the general District Court of the best practices that have emerged in recent years from a number of specialist courts. It is beyond a sentencing appeal judgment to seek to capture all or many of the aspects, but an aim is greater engagement with the community and with those who are victims of or charged with offences. An aspect identified is what is termed "Solution focusedjudging" which involves addressing "the wide-ranging needs of both victims and offenders to avoid a recurrence of the problem that brought these parties to court."1Facts[4] As noted, on three separate occasions Mr Vella was apprehended driving while disqualified. The dates were 27 August 2020, 26 November 2020 and 8 December 2020.[5] Mr Vella lives at a rural address as part of an extended whānau. It is a farm property and its location means to leave the property he must either drive or be driven. Mr Vella, aged 31, has tried to obtain his licence but has twice failed the test. The nearest testing facility is booked ahead for two months, and the pre-sentence report writer notes it is not uncommon in the area for people to drive in the interim.[6] Mr Vella has not previously been sentenced to imprisonment; there have been sentences of community detention and community work. His home address is technically feasible for electronic monitoring but a large number of people (four adults and 13 children) live there and it is not regarded as a viable option for an electronically monitored sentenced. Mr Vella is also not himself regarded as a viable candidate.[7] Concerning the two charges of breaching conditions of a community detention sentence, on 3 December 2020 Mr Vella spent the night at an address other then the curfew address. I do not have the details of the second offence.Sentencing[8] The Judge noted that Mr Vella had in the past been given opportunities to obtain a licence. The Judge's assessment was that having failed to pass, Mr Vella "threw in the towel" and just continued to drive. The Judge noted the number of past convictions and the fact that these offences all occurred in such a short time span as meaning the only option was imprisonment.1 At page 14.[9] The Judge took a starting point of nine months on the first driving offence and added three further months for each of the other two. For the breach of community detention offences, a further uplift of three months was imposed, leaving the starting point at 18 months. No uplift was imposed for the fact the offending occurred while Mr Vella was on bail. A full guilty plea discount was given, leaving a final sentence of 13 months and two weeks' imprisonment.[10] It seems that by the time of sentencing Mr Vella was no longer subject to a driving restriction (other than the absence of a licence). Any periods of disqualification, and suspension, and all demerit points, had expired. The Judge was anxious to maintain this, even though the imposition of a penalty of disqualification is mandatory if the core sentence is imprisonment. To effect his purpose, the Judge backdated the disqualification to 1 August, with the period of disqualification being a year. The Judge calculated the disqualification would have expired by the time Mr Vella was released from his sentence.[11] Outstanding fines of $11,635 were replaced by a further three weeks' cumulative term of imprisonment.Appeal[12] The appeal is brought on the basis that a community-based sentence should have been imposed. Such a sentence also allows the Court a discretion not to impose a penalty of disqualification. Errors reflected in the sentence are submitted to be:(a) too much weight given to denunciation and deterrence;(b) insufficient regard to the impediments Mr Vella faced in achieving his efforts to obtain a licence; and(c) insufficient regard to the impact of imprisonment on Mr Vella's fledging business, which would have the advantage of getting him off a benefit.Mr Foster also suggests some uncertainty over the length of the period of disqualification.[13] In elaboration on Mr Vella's personal circumstances, the Court is advised Mr Vella lives 15 km north of Dannevirke. It is a farm property where his partner and five of his children live. Mr Vella was trying to build a business selling firewood. All these circumstances point to the need to use a vehicle.[14] It is noted that since 2017 little of Mr Vella's driving offending involves bad driving. There is one occasion of failing to stop for police but otherwise it is all driving when not permitted. (This in fact appears to be so back to 2008 when there is a breath alcohol offence.)[15] At the appeal a letter was handed up from the driving support group that is assisting Mr Vella. It paints a more positive picture of his efforts. Mr Vella twice failed the test but was booked for a third and was receiving daily lessons. However, at that point a demerit point suspension was notified which required the test to be abandoned.[16] The respondent supports the sentence imposed. It recognises the desirability of addressing the causes of the offending cycle, but submits that the context of the offending, and the unsuitability of a community-based sanction meant there was little option open to the Court.Decision[17] I do not accept the Court did not have regard to the sentencing principles that inform parts of Te Ao Mārama. The fact that the disqualification was backdated to a date before the first offence so as to coincide with Mr Vella's release, thereby effectively becoming not an operative sanction, illustrates this.22 I heard no argument on the ability to do this. The judgment is not to be taken as authority for its correctness. Nor is silence to be taken as accepting non-compliance with Te Ao Mārama is an available ground of appeal. These things, however, are usually matters of how it is worded with [18] of this judgment placing the submission in a more orthodox framework.[18] The ideas underlying Te Ao Mārama are important. As the Chief Judge notes, most are not new and indeed are reflected in aspects of the Sentencing Act. It is a question of different emphasis and focus, and allocation of resources. A Court should always look to address the causes of offending to the extent possible; sometimes, however, sanctions will still be required that prevent a wholly rehabilitative approach. The issue is whether the Court erred in reaching that conclusion here, and thereby imposed a manifestly excessive sentence.[19] I consider this to be a case where reasonable minds could differ. Lesser sanctions designed to afford Mr Vella an opportunity to break the cycle had been afforded and not taken. There is a basis to suggest Mr Vella has now belatedly decided to join the efforts to help himself break the cycle, but not before continuing to offend in a manner that suggests he will not accept the restrictions imposed by the law. Where I consider reasonable people could differ is whether another opportunity should have been afforded given his change in attitude. The situation was not helped by the unsuitability of the obvious lesser sanctions. It would be a significant step to have effectively imposed no sanction, or a manifestly inadequate one for the offending, in the hope that Mr Vella's commitment was going to last.[20] On the other hand, I accept the driving itself did not appear to pose any risk to anyone and was unlawful only because of the unlicensed status of the driver. This may have induced a Court to try one more time.[21] On an appeal I am not satisfied the Judge erred in his approach. However, two matters have emerged since sentencing. There is evidence to suggest Mr Vella had not given up as had appeared to be the case at the time of sentencing, and through counsel there is evidence that a period of incarceration has had some impact on his thinking.[22] My assessment of the appeal would make it not correct to quash a sentence of imprisonment, but these factors can be reflected in a shorter term. The appeal is allowed and the three concurrent sentences of 13 months and two weeks are quashed.3In their place I impose concurrent sentences of nine months' imprisonment.3 A cumulative three week sentence in lieu of existing fines was imposed. This appeal does not affect that.[23] A matter arose at the hearing concerning the length of the period of disqualification imposed in the District Court. I confirm the period is one year.[24] Mr Vella will now be released before the disqualification period expires. I indicate the Court's support for him being permitted to take driving lessons with his support group before the disqualification ends.Conclusion[25] The appeal is allowed. The three concurrent sentences of 13 months and two weeks are quashed. In their place three concurrent sentences of nine months' imprisonment are imposed._____________________Simon France JSolicitors:Foster Law, Hastings for AppellantCrown Solicitor, Palmerston North for Respondent