PALU v NEW ZEALAND POLICE [2018] NZHC 758

PALU v NEW ZEALAND POLICE [2018] NZHC 758 [20 April 2018]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2018-442-1[2018] NZHC 758BETWEEN PAEA I VAHAFOLAU PALUAppellantAND NEW ZEALAND POLICERespondentHearing: 17 April 2018Appearances: R Ord for the AppellantJ R Crawford for the RespondentJudgment: 20 April 2018JUDGMENT OF CULL J[1] Mr Palu appeals his re-sentence of six months' imprisonment, after breachinghis home detention sentence, on charges of driving while disqualified1 and refusing ablood specimen.2 Mr Palu was re-sentenced on 12 February 2018 in the District Courtat Nelson.3 A concurrent sentence of one months' imprisonment was imposed forbreaching home detention.4[2] Mr Palu appeals his re-sentence on the grounds that the sentence wasmanifestly excessive. He does not appeal his sentence on the breach of homedetention.[3] The Crown opposes the appeal, arguing that the sentence is well within theacceptable 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.[4] The appeal is allowed. The sentence of six months' imprisonment is quashedand a sentence of four months' imprisonment is imposed, with the same post-releaseconditions 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 theNelson Probation Centre, to be assessed and undertake drug and alcohol counsellingat 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 theManukau District Court. On 1 May 2009, Mr Palu was convicted of driving withexcess breath alcohol in the Auckland District Court. On 30 July 2010, and again on2 July 2015, Mr Palu was convicted of driving with excess breath alcohol in theManukau District Court[6] On 1 July 2017, Mr Palu was driving on High Street, Motueka, when he wasstopped by police. He exhibited signs of recent alcohol intake and was required toundergo a breath screening test for alcohol. He refused, and was then required toaccompany the officer to the Motueka Police Station for an evidential breath test. Atthe station, Mr Palu refused to undergo the breath test. Police then requested a sampleof blood for analysis, which was also refused. He was sentenced to home detentionwith special conditions and was disqualified from driving indefinitely.[7] On 10 February 2018, only a few weeks into his sentence for the latestoffending, Mr Palu was discovered drinking alcohol at a friend's house, in breach ofthe conditions of his home detention. Mr Palu had been involved in a dispute with hiswife. When questioned by Police, Mr Palu admitted that he had been drinking everynight.District Court decisions[8] On this appeal, it is important to have regard to the two District Courtsentencing decisions, which are relevant to a consideration of the re-sentence of sixmonths' imprisonment.Original sentencing decision[9] On 23 January 2018, Mr Palu was sentenced to four months' home detentionon charges of driving while disqualified and refusing a blood specimen in the DistrictCourt 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 Judgedescribed as "unbelievably high".6 The Judge said that the "first port of call" for afourth drink-driving conviction was a sentence of imprisonment, but that homedetention was appropriate in this case, because Mr Palu was supporting his wife andfive children under 16 in full-time employment.7[10] The Judge warned Mr Palu that if he ever drove drunk again, he would face asentence 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 asentence of eight months' imprisonment.9[11] The home detention sentence included a condition not to possess, consume oruse any alcohol or any non-prescribed drugs. There was also a condition to attend anintensive alcohol and drug abuse programme. Mr Palu was allowed to go to workwhile on home detention. Six months of post-detention conditions were also imposed,including a requirement to continue attending the intensive alcohol and drug abuseprogramme. Mr Palu was disqualified from driving indefinitely (for refusing a bloodspecimen) 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 earlierthat same day.11 In the sentencing indication, the Judge calculated the six-monthsentence on the basis that Mr Palu had served about a month of his home detentionsentence, leaving three months left to serve (which would require a six-month sentence5 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 3.11 Department of Corrections v Palu DC Nelson CRI-2018-042-260, CRI-2018-042-1565, 12February 2018.because of automatic parole for short-term sentences).12 The Judge also re-imposedstandard release conditions and special release conditions reflecting the post-detentionconditions.The appellant's circumstances[13] Mr Palu is 32 years old. He is married with five children. He works as abutcher 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 acommunity-based sentence.[14] His pre-sentence report (for the original sentencing) identified a "harmfulpattern of alcohol use". Mr Palu reported consuming an entire box of beer everyweekend. The report recommended home detention with special conditions and post-detention conditions relating to his alcohol abuse problem. An undated letter fromThe Salvation Army records that Mr Palu had enrolled in its Positive LifestyleProgram.Approach on appeal[15] An appeal against sentence is an appeal against a discretion. Section 250 ofthe 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 animportant guide to finding an error.13 If the end sentence is within range, then theappeal court will not change it, even if the lower court made an error in its sentencingapproach.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 Ordsubmits further that the eight months' imprisonment was the starting point for theoriginal sentencing decision and no discount was given for a guilty plea or any othermitigating factor.[18] Mr Ord submits that the re-sentencing Judge erred, by starting at the eightmonths' imprisonment as an end point, also without making any deduction for guiltypleas or personal circumstances. The re-sentencing Judge inferred that "the end prisonsentence 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 reducedthe sentence to six months' imprisonment. Mr Palu, it is submitted, had notappreciated the length of the term of imprisonment when he accepted the sentencingindication and wished to appeal.[19] It is submitted the sentence of six months was manifestly excessive and Mr Ordrelies 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 hissentence as at the time of this appeal, Mr Ord submits that a reduced sentence of fouror five months' imprisonment would be appropriate.Crown submissions[21] The Crown acknowledges that it appears that the starting point and end pointby the original sentencing Judge was eight months' imprisonment, but the Court caninfer that the original sentencing Judge took into account factors which resulted in theend point of eight months' imprisonment. The Crown accepts Mr Ord's submissionsin relation to the factors identified in Clotworthy v Police, but submits that thosefactors demonstrate that Mr Palu's sentence was well within the acceptable range. Anadjustment 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 thesentences ranged from three to 12 months' imprisonment, with an average of five tosix months' imprisonment. The Crown also refers to Samson v Police, where WhataJ said that starting points in the region of nine to 12 months' imprisonment foroffending with only moderate aggravating factors are supported by the case law.15Discussion[23] This case concerns a repeat drink driver, who was driving while subject to anindefinite disqualification. The leading decision of Clotworthy remains a helpfulguiding authority on the factors to be taken into account in sentencing for multipleEBA offending.16 Those factors are set out in the judgment and applying those factorsto Mr Palu, they are as follows:17(a) the level of blood alcohol is deemed to be high because Mr Palu refusedto give blood when apprehended;(b) the offending took place more than three years after the previousdisqualification;(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 thisoccurred;(g) Mr Palu had never been sentenced to imprisonment, but was sentencedto 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 appealhearing; and(j) Mr Palu had been in full-time employment, which supported his familyof his wife and five children. His wife is currently pregnant.[24] The original sentencing Judge took into account the aggravating factor, thatthis is the fourth drink driving charge for Mr Palu, as well as his driving whiledisqualified. Against that, the Judge took into account the mitigating circumstances,that what would otherwise be a "usual prison sentence" was converted into homedetention because Mr Palu was married with five children under 16 and was supportinghis wife and family in full-time employment. The Judge notes specifically that ifMr Palu went to prison then his wife would be left alone with five children with noincome other than a benefit.[25] However, in noting these matters, the Judge appears to have decided an endsentence of eight months' imprisonment, six months for the drink driving plus anothertwo months for the driving while disqualified. He took into account that there wouldbe automatic parole after Mr Palu served half of his sentence, which, when homedetention 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 thestarting point was six months for drink driving with an uplift of two months for thedriving while disqualified, or whether the eight months' imprisonment for both was ineffect the starting point. No deduction was given for Mr Palu's guilty plea or any ofthe 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 threeyears, no consideration was given to that factor nor the fact that Mr Palu had only therelevant 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 houseand on his arrest for breaching his home detention, his bail was opposed. This led toMr Palu pleading guilty to a breach of his home detention condition on 12 February2018. The re-sentencing Judge accepted the prosecution's application to cancel andsubstitute a sentence for home detention, at which point, the re-sentencing Judge gavea sentence indication. Mr Ord, who acted as his counsel at the time, advised thatMr 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. Afterhe was sentenced Mr Palu instructed Mr Ord that he had not appreciated the length ofthe term and instructed him to appeal.[28] Turning then to the re-sentencing of Mr Palu, the Judge inferred that the endprison sentence before home detention was eight months' imprisonment. He thenproceeded to deduct a months' home detention sentence and "translated" that to sixmonths' imprisonment. He considered that six months would be by way of re-sentencefor the previous charges and the breach of home detention.[29] Mr Ord sought a lower prison sentence of four months, submitting that anyuplift should have been proportional to the term of imprisonment.[30] In Bechan v Police, Whata J traversed the Clotworthy factors where Mr Bechanappeared on his fifth EBA offence in four and a half years, where he came to the noticeof the public on the last occasion, because of his dangerous driving.18 Whata J allowedMr Bechan's appeal against 10 months' imprisonment, replacing it with an endsentence of eight months, noting that the escalation to a 10 month sentence did notproperly 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 beengiven in this case to the fact that this is the first sentence of imprisonment tobe imposed on Mr Bechan. This reflects two important features. First, that MrBechan's prior conduct has not previously demanded a sentence ofimprisonment. Second, the escalation to a sentence of imprisonment of tenmonths does not immediately present itself as proportionate to the escalationin the offending.[31] By comparison with Bechan and Samson,19 where Mr Samson had 10 previousconvictions for EBA and disqualified driving type of offences over a period of sixyears, and his last drink driving offence involved unacceptable speed. Mr Palu's caseis 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 shortdriving offence history of five incidents from 2009 to 2017 and his convictions werenot in particularly close succession, the previous offending taking place three yearsafter 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 ofthe 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 bythe original sentencing Judge, without having regard to the guilty pleas to the homedetention breach, the factors surrounding the breach, the personal circumstances ofMr Palu and the extent of his offending.[34] I adopt Whata J's approach in Bechan.20 Closer consideration should havebeen given, in this case, to the fact that this is the first sentence of imprisonment to beimposed on Mr Palu. A sentence of eight months' imprisonment is disproportionateto the escalation in the offending and the circumstances surrounding it.[35] I accept the submission of Mr Ord, that a low starting point of imprisonmentwas appropriate, with an uplift for the level of alcohol and repeat offending.[36] In my view, a sentence of imprisonment was necessary to provide theappropriate 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. Buta sentence of four months' imprisonment was appropriate. A short and sharp sentenceof imprisonment enables the reality of such offending to impact the offender, as wellas discharging the other factors required in sentencing, including the least restrictivesentence for what is a relatively short driving offence history, his first sentence ofimprisonment and denouncing his conduct.[37] It appears that the sentence to date has already had an impact on Mr Palu. Inhis letter to the Court, he says:Since I've been locked up I've had time to think and reflect on my problemsand how I got myself in here. I've finally realised that being in jail is not onlyaffecting me but also my family. They are suffering because I'm not out there20 Bechan, above n 18.to support and provide for them. I am truly sorry for my action and notobeying the law and putting the public at risk or in danger. I will not makethe same mistake. I've learnt my lesson. I want to be with my wife and kidsand support and provide for them. Please give me a chance to prove myselfthat I've changed.[38] I am satisfied, on the basis of the authorities, the factors in Clotworthy and theirrecent application in Whata J's judgments of Samson and Bechan, that a sentence offour months' imprisonment was appropriate in Mr Palu's case.Result• The appeal is allowed.• The sentence of six months' imprisonment is quashed and a sentence of fourmonths' imprisonment is imposed, with the same post-release conditions andspecial release conditions as imposed by the original sentencing Judge.• In addition, I direct that the defendant, on his release from prison, is to attend theNelson Probation Centre, to be assessed and undertake drug and alcoholcounselling at the earliest opportunity. All other post-release conditions will apply.Cull JSolicitors:Crown solicitor, Nelson