PILLAY v POLICE [2018] NZHC 399

PILLAY v POLICE [2018] NZHC 399 [12 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000437[2018] NZHC 399BETWEEN PRANCIS PILLAYAppellantAND NEW ZEALAND POLICERespondentHearing: 12 March 2017Appearances: S Kilian for the AppellantK Tuialii for the RespondentJudgment: 12 March 2017JUDGMENT OF WOOLFORD JSolicitors/Counsel:Mr Kilian, AucklandKayes Fletcher Walker, ManukauIntroduction[1] On 23 May 2017, Prancis Pillay was sentenced to 12 months home detentionon two charges of driving with excess breath alcohol (third or subsequent) and twocharges of disqualified driving (third or subsequent).[2] On 20 September 2017 the Department of Corrections applied to the DistrictCourt to cancel the sentence of home detention and substitute it with a sentence ofimprisonment on the basis of a number of breaches of the conditions of the sentenceby Mr Pillay and the withdrawal of consent by Mr Pillay's wife to him serving theremainder of his sentence at the family home. The Police also laid a charge againstMr Pillay of breaching the conditions of his home detention sentence to whichMr Pillay pleaded guilty.[3] On 9 November 2017, Judge Hikaka granted the application by the Departmentof Corrections to cancel the sentence of home detention and resentenced Mr Pillay to16 months imprisonment on the charges in respect of which he had earlier beensentenced to home detention. Judge Hikaka also convicted and sentenced Mr Pillayto a concurrent sentence of one month's imprisonment on a charge of breaching theconditions of the home detention sentence.[4] Mr Pillay now appeals against sentence on the basis that Judge Hikaka waswrong to sentence him to 16 months imprisonment. He says that he should have beenresentenced to a further term of home detention or a sentence of community detention,as well as intensive supervision.Factual background[5] Mr Pillay has an unenviable criminal record. He has nine convictions for drinkdriving over an 11 year period between 2005 and 2016. He was sentenced to a year'simprisonment upon conviction for two charges of drink driving in 2014. Over thesame period he has received nine convictions for disqualified driving. Then he hasconvictions for breach of community work, breach of the conditions of communitydetention, breach of the conditions of supervision, breach of court release conditionsfrom prison and breach of home detention over an eight year period between 2009 and2017.[6] When he was sentenced to 12 months home detention on 23 May 2017,Judge Bergseng commented:1The reality is, Mr Pillay, you are an absolute menace on the road. You aresomeone who should not be driving. You have got young children in Courthere and you have an obligation to look after them. You have left your wifein an awkward position, an almost impossible position. You are a chronicalcoholic. The only good thing that I can see so far is that you have finallyrecognised that you have an alcohol issue, although there was some reticencein the probation report as to just whether or not you truly acknowledge yourneed for ongoing assistance.[7] Judge Bergseng said the only thing that stopped him from going to prison thatday was Mr Pillay's ongoing rehabilitation.[8] However, having been sentenced to 12 months home detention on 23 May2017, on 16 August 2017 Mr Pillay was arrested by the Police on a charge of breachinghis home detention conditions by consuming alcohol. He was sentenced to 80 hourscommunity work on 31 August 2017. Then on 19 September 2017, Mr Pillay removedhis electronic bracelet and departed from the home detention address in the familyvehicle. Mr Pillay was located the next day and admitted consuming alcohol again.He was then arrested and charged with breaching the conditions of his home detentionsentence. The Department of Corrections also applied to cancel the sentence of homedetention both on the basis of the breaches and also on the basis that Mr Pillay's wifehad withdrawn her consent for him to serve the remainder of his home detentionsentence at the family home.District Court decision[9] At the outset of his sentencing notes, Judge Hikaka noted the opposition tocancellation of the sentence of home detention on the basis that Mr Pillay was nowwilling to accept assistance for his problems with alcohol and his wife's and mother'ssupport for him. He noted that in spite of an earlier indication that Mr Pillay's wifewould not consent to allowing him to serve the remainder of his home detention1 New Zealand Police v Pillay [2017] NZDC 10707 at [9].sentence at the family home, she had now changed her mind and was willing to havehim back.[10] Judge Hikaka then referred to the sentencing notes of Judge Bergseng on23 May 2017 and noted Judge Bergseng's comment that it was by a fine margin thatMr Pillay did not go to prison for a long period of time on that day.[11] Judge Hikaka referred to Mr Pillay's explanation for the offending, namely thathe was upset about not being able to travel to Fiji where his wife's grandfather was illwhen his brother-in-law came to his home with a bottle of rum. Mr Pillay could notdeal with his wife telling him not to drink, so he left the family home and continuedto drink, having removed his electronic bracelet. Judge Hikaka said he would imposethe least restrictive sentence appropriate in the circumstances, which was more withrespect to the time Mr Pillay would serve in prison because he did not think a sentenceless restrictive than imprisonment was appropriate in all the circumstances. He wasof the view that a sentence other than imprisonment would not serve to promote thepurposes or principles of the Sentencing Act.[12] Judge Hikaka took into account that 12 months home detention was theequivalent of 24 months imprisonment. Mr Pillay had served four months homedetention, which therefore equated with eight months imprisonment. That brought thetotal of unserved time, represented as a prison sentence, to 16 months. The Judgetherefore cancelled the sentence of home detention and sentenced Mr Pillay to16 months imprisonment.Appellant's submissions[13] Counsel for Mr Pillay submits that a sentence of home detention, together witha sentence of intensive supervision, would have been better suited to meet the on-going rehabilitative needs of Mr Pillay. He says that prior to this offending Mr Pillaywas attempting to make changes in his life. The pre-sentence report notes thatMr Pillay had completed a one day impaired driving course on 8 August 2017 and wasalso attending a weekly wellness recovery action plan programme managed byCareNZ at the time of his offending. The pre-sentence report also recorded Mr Pillay'sadvice that he had completed a two month residential programme followed by a Bridgeprogramme managed by the Salvation Army. The pre-sentence report went on tocomment, however, that despite these rehabilitative interventions to address hisalcohol abuse, Mr Pillay continued to make poor decisions.[14] Counsel referred to the Court of Appeal decision in Manikpersadh v R in whichthe Court noted the discretion whether to commute a sentence of imprisonment tohome detention.2 Relevant factors in the exercise of the discretion included anassessment of the seriousness of the offending, the principles and purposes ofsentencing, which include having regard to accountability, denunciation, anddeterrence, consideration of the least restrictive sentence, the offender's personalcircumstances, and the defendant's rehabilitative needs.[15] There is no presumption either way as to imprisonment or home detention, butthe lower the prison sentence in relation to the two year maximum, the more likelyhome detention will be appropriate.[16] Counsel further submits that courses within prison are limited, and Mr Pillayhas already completed the Alcohol and other Drug Brief Support programme. Counselemphasises the support available to him in the community, including his family andsubmits that a sentence of home detention would better suit his rehabilitative needs.[17] I have today been handed a letter from Mr Pillay, written in prison, in whichhe expresses remorse. I have also been provided with an email from Mr Pillay's wife,in which she asks for her husband to return home as life has not been easy without hishelp with the family.Discussion[18] Having carefully considered submissions of counsel, I am, however, of theview that there was no error made by Judge Hikaka in imposing a sentence ofimprisonment. As noted by the Court of Appeal in James v R, the task of an appellatecourt is not to "revisit or review the merits" of a decision declining home detention,but to consider whether there has been an error in the exercise of the Judge's discretion2 Manikpersadh v R [2011] NZCA 452.not to impose home detention.3 I am of the view that Judge Hikaka was entitled torefuse to resentence Mr Pillay to home detention.[19] While Judge Hikaka accepted that Mr Pillay was now prepared to seekassistance for his problems with alcohol, and had the support of his family, he notedthe lenient approach Judge Bergseng took in the sentencing on 23 May 2017 andcommented that Mr Pillay was afforded a very good rehabilitative opportunity, whichhe had not taken advantage of.[20] Mr Pillay was unable to comply with a sentence of home detention, which wasspecifically imposed for rehabilitative purposes on two occasions over the period offour months. For myself, I do not have any confidence that Mr Pillay will abide bythe conditions of any sentence such as home detention given his history of previousfailures to abide by Court imposed conditions. I am of the view that a heightenedresponse by the Court was available for the purposes of denunciation and deterrenceand Judge Hikaka did not err when he found that the least restrictive outcome must beone of imprisonment.[21] The appeal is dismissed.________________________________Woolford J3 James v R [2010] NZCA 206 (2010) 24 NZTC 24,271.