ILOLAHIA v POLICE [2022] NZHC 1853

ILOLAHIA v POLICE [2022] NZHC 1853 [29 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-191[2022] NZHC 1853BETWEEN TEVITA ILOLAHIAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2022Appearances: C T Van Heeswyk for AppellantY Fu for RespondentJudgment: 29 July 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 29 July 2022 at 3:30pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Mr Tevita Ilolahia (the appellant) was sentenced by Judge A M Manuel in theAuckland District Court on 13 May 2022 to 13 months' imprisonment and alsodisqualified from driving indefinitely following convictions for:1(a) driving with excess blood alcohol (third or subsequent);2(b) two charges of driving contrary to an alcohol interlock licence;3 and(c) failing to answer District Court bail.4[2] The appellant appeals against his sentence on the grounds that the Judge erredby failing to grant him leave to apply for home detention which resulted in an endsentence being imposed that is manifestly excessive.Background[3] On 14 August 2018 the appellant was sentenced on a charge of driving with anexcess breath alcohol level of 569 micrograms per litre of breath; refusing a Policeofficer's request to provide a blood specimen; and driving in a dangerous manner. Hewas sentenced to a term of six months' home detention and 100 hours communitywork. The Court also made an alcohol interlock order, and the appellant was given afinal warning.[4] On 12 May 2020 the appellant was found by police to be driving a car withoutan alcohol interlock device fitted contrary to the order made on 14 August 2018. Hewas breath tested with a result of 178 milligrams of alcohol per 100 millilitres ofblood.1 New Zealand Police v Ilolahia [2022] NZDC 8759 [District Court decision] at [21].2 Land Transport Act 1998, s 56(2) and (4).3 Section 32(1)(b) and (3).4 Bail Act 2000, s 38.[5] On 30 August 2020 the appellant was stopped by police for not wearing aseatbelt. Once again the vehicle he was driving was not fitted with an alcohol interlockdevice, contrary to the court order.[6] On 14 September 2020 the appellant breached his bail by failing to attend courtwhen required.District Court decision[7] Judge Manuel commenced her sentencing decision by noting that the appellanthad a "long history of drink-driving convictions" and that the index offending was hiseighth conviction for drink-driving. His first drink-driving conviction was on31 August 2004 with a reading of 448 micrograms of alcohol per litre of breath. Hissubsequent breath alcohol offending involved readings of 870, 862, 769 and 668micrograms of alcohol per litre of breath. The appellant's most recent breath alcoholdriving conviction prior to Judge Manuel's sentencing was in August 2018 when hehad a level of 569 micrograms of alcohol per litre of breath.[8] The Judge noted that the appellant's sentencing had previously been adjournedfour times, and she was unwilling to further adjourn the sentencing in order to enablea proposed address to be assessed as to its suitability for an electronically monitoredsentence of home detention. The Judge observed that the appellant had already beenafforded considerable opportunity to make arrangements regarding where he would beliving and for the suitability of the premises for a community-based sentence to beassessed. She said that a sentence of intensive supervision and/or a community-basedsentence would not be appropriate.[9] The Judge also noted that the appellant's previous sentences had includedhome detention, community work and supervision and that he had been given theopportunity to address his alcohol problem in the course of those sentences but hadfailed to do so. The Judge also observed that there was "little or no evidence ofremorse" or of the appellant taking any steps to face up to his drinking problem.5 TheJudge said that while a sentence of intensive supervision was said by the appellant's5 At [15].counsel to be the appropriate sentence, there had been nothing to stop the appellanttaking steps to address his drinking problem and indeed there had been months if notyears for him to do so. She said that as far as she was aware the appellant had notattended or commenced a Community Alcohol and Drug Services (CADS)programme or any other similar programmes and he had not taken any steps to makeany changes in his life and address his alcohol problems.[10] Judge Manuel adopted a starting point of 15 months' imprisonment for thedrink-driving charge and added two months to take account of the other offending.She then allowed a discount of "about 20 per cent" in recognition of the appellant'sguilty pleas which she said had not been entered at the earliest opportunity. Thatproduced the end sentence of 13 months' imprisonment which the Judge imposed. TheJudge also ordered that the appellant be indefinitely disqualified from driving pursuantto s 65(2) of the Land Transport Act 1998.SubmissionsThe appellant[11] Ms Van Heeswyk, counsel for the appellant, submits that the Judge erred byfailing to grant the appellant leave to apply for home detention. She refers to Papa vNew Zealand Police where Palmer J held that a failure to give reasons for not grantingleave to apply for home detention pursuant to s 80I of the Sentencing Act 2002 (theAct) was a material error.6 Counsel submits that a sentencing judge must considerwhether home detention should be imposed if it is technically available within theterms of s 15A of the Act, even where the defendant makes no submission that it shouldbe imposed. Failure to do so will lead an appellate court to consider the matter afresh.7[12] Ms Van Heeswyk submits that the appellant's circumstances are very similarto those of Ranford v New Zealand Police where the appellant in that case wasconvicted of a seventh excess breath alcohol charge and was sentenced to homedetention.8 Ms Van Heeswyk says that consistently with Ranford, the appropriate6 Papa v New Zealand Police [2019] NZHC 1309 at [10].7 Fairbrother v R [2013] NZCA 340 at [30].8 Ranford v New Zealand Police [2021] NZHC 132.sentence here would be for the Court to grant leave to the appellant to apply for homedetention.The respondent[13] Ms Fu, for the respondent, accepts that by failing to give reasons for notgranting leave to impose home detention the Judge made a material error. However,Ms Fu submits that in re-sentencing the appellant the Court should neverthelessconclude that a term of imprisonment is the least restrictive sentencing outcome thatis appropriate in the circumstances. Counsel submits that the appellant has a "clearpropensity" to drive while under the influence of alcohol and there is no evidence tosuggest that he has done anything to address his alcohol problem. Ms Fu says that isa significant distinguishing factor between this case and Ranford, in which theappellant had taken steps to address his alcohol problem and had self-referred toNarcotics Anonymous.[14] Ms Fu submits that the observations of Venning J in Oltaches v New ZealandPolice are also applicable here:9Against that [need for rehabilitation] there does come a time when the needfor deterrence and the safety of the community must take precedence over thepossible rehabilitative needs of the offender.[15] Venning J further commented that:10 in [the appellant's] case it has to be observed that he has had severalopportunities in the past to address his alcohol issue and also to attend arehabilitative course to address his offending.[16] Ms Fu therefore submits that the least restrictive sentencing outcome in theappellant's case is imprisonment.Discussion[17] Section 80I of the Act provides:(1) This section applies if—9 Oltaches v Police [2021] NZHC 908 at [17].10 At [16].(a) a court has sentenced an offender to a short-term sentence ofimprisonment; and(b) at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitableresidence had been available.(2) At the time of sentencing, the court must make an order granting theoffender leave to apply to the court of first instance for cancellationof the sentence of imprisonment and substitution of a sentence ofhome detention if the offender finds a suitable residence at a later date.[18] At the time when the appellant was sentenced although he was unable topropose a suitable residential address at which to serve an electronically monitoredsentence of home detention, having regard to the length of the sentence she imposed,the Judge ought to have provided reasons for not granting him leave to apply for homedetention. Although it is implicit from the Judge's decision that she did not considera sentence of home detention to be appropriate, it was nevertheless necessary for herto deal with the issue expressly by giving reasons for that decision. Her failure toprovide reasons for not granting him leave to apply for home detention pursuant tos 80I of the Act was a material error, with the consequence that the sentence must beconsidered afresh.11[19] Here the appellant takes no issue with the Judge's decision that a sentence of13 months' imprisonment was appropriate, but says that the Judge's failure to givereasons for her decision not to grant leave to apply for home detention was a materialerror, and that she ought to have granted him leave.[20] As Palmer J observed in Papa, the issue on appeal is not whether to grant anapplication for home detention, but rather whether to grant leave for such anapplication to be made.12 Despite this distinction, similar considerations will berelevant to the assessment as leave will only be granted under s 80I where the court"would have sentenced the offender to a sentence of home detention if a suitable11 Papa v New Zealand Police, above n 6, at [10].12 At [11]. If leave is granted under s 80I then Mr Ilolahia may apply to the court at any time tocancel his sentence of imprisonment and substitute it with a sentence of home detention unders 80K of the Act.residence had been available".13 For reasons which may be stated briefly, I do notconsider that a sentence of home detention is appropriate in this case, irrespective ofwhether or not a suitable residence is now available.[21] Unlike the circumstances in Ranford where the appellant had self-referred toNarcotics Anonymous, independently verified that he had been attending, and "[b]yall accounts was making good progress",14 there is no cogent evidence in this caseof Mr Ilolahia having taken any steps to address his issues with alcohol abuse. I notethat Ms Van Heeswyk says that the appellant has instructed her that he has made someattempt to engage with CADS but his attempts were frustrated by disruptions causedby the COVID-19 lockdowns. However there is no affidavit evidence nor anydocumentary evidence produced by or on behalf of the appellant stating or confirmingthat he has taken any steps towards addressing his alcohol problem. The earliest ofMr Ilolahia's index offences occurred on 12 May 2020. His sentencing before theDistrict Court was subsequently adjourned four times, and it is now over two yearssince the offending occurred. I consider that if the appellant was motivated to make agenuine effort to address his alcohol abuse then some evidence confirming his effortsto do so would be available and his failure to provide any such evidence shows that hehas not taken any such steps.[22] I respectfully agree with the observations of Venning J in Oltaches, that insentencing repeat offenders such as the appellant, considerations of deterrence anddenunciation and protecting the community from the risk of intoxicated driversnecessarily takes precedence over the rehabilitative interests of the offender. Thepresent offending is the appellant's eighth conviction for drink-driving and quiteobviously the previous sentences imposed have not deterred him from repeatoffending. On each occasion when he has driven with excess breath alcohol levels hehas presented a significant danger to other road users. An indication of the nature ofthat risk is apparent from his high levels of breath alcohol when he previously offendedwhich involved him exceeding the legal limit by a considerable amount with positivetests of 870, 862, 769 and 668 micrograms of alcohol per litre of breath. It is also clear13 Section 80I(1)(b). Unlike the situation in Papa where Palmer J was not in a position to "judge themerits" of home detention, I have been addressed by both parties on the suitability of homedetention and proceed accordingly.14 Ranford v New Zealand Police, above n 8, at [9] and [24].that in sentencing the appellant for his previous drink-drive offending that the courtshave afforded him numerous opportunities over a period of years to address his alcoholabuse and he has irresponsibly failed to do so. It is simply good fortune that no onehas been seriously injured or killed as a result of his offending.[23] While I accept that long-term rehabilitation will provide the best protection tothe public in the future I also note that the appellant's rehabilitative needs are notprevented or ignored as a result of the imposition of a sentence of imprisonment.Judge Manuel made provision in her sentence for "six months post-release special andstandard conditions, with the special conditions to address the appellant's issues withalcohol".15 Those conditions will presumably involve rehabilitative interventionsdesigned to address his alcohol abuse, potentially by requiring his engagement withCADS.16 Such rehabilitative measures are plainly the best way of protecting the publicin the long-term by ensuring that Mr Ilolahia addresses the root cause of his offending.[24] For these reasons, I am satisfied that a sentence of imprisonment is necessaryin the circumstances of this case, and that a sentence of 13 months' imprisonment isthe least restrictive sentencing outcome that is appropriate for the appellant's offendingeven if a suitable residence for home detention is now available. I therefore declineto grant leave for Mr Ilolahia to apply for substitution of the sentence of imprisonmentfor a sentence of home detention under s 80I of the Act.[25] Under s 250 of the Criminal Procedure Act 2011, the Court must allow theappeal if satisfied there is a material error in the sentence and a different sentenceshould be imposed. While I have found that there was a material error inJudge Manuel's sentencing because of her failure to give reasons for not granting theappellant leave to apply for home detention, I am nevertheless satisfied that thesentence she imposed was not manifestly excessive and I find that a different sentenceshould not be imposed.15 District Court decision, above n 1, at [21].16 Were I required to sentence Mr Ilolahia myself I would have imposed conditions of this naturepursuant to s 93 of the Sentencing Act 2002.Result[26] The appeal is accordingly dismissed._____________Paul Davison J