TAFERE v NZ POLICE [2017] NZHC 2992

TAFERE v NZ POLICE [2017] NZHC 2992 [4 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000325[2017] NZHC 2992BETWEEN TEWODROS TAFEREAppellantAND NEW ZEALAND POLICERespondentHearing: 4 December 2017Appearances: C Frans for the AppellantL Fraser for the RespondentJudgment: 4 December 2017JUDGMENT OF WOOLFORD JSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: C Frans, Orewa[1] On 7 September 2017, Tewodros Tafere was sentenced to six months homedetention on two charges of driving with excess breath or blood alcohol, one chargeof driving with excess breath or blood alcohol on a third or subsequent occasion, onecharge of driving while suspended and one charge of receiving a stolen computervalued at $3000.1 He now appeals against sentence on the basis that it is manifestlyexcessive because it did not sufficiently take into account the fact that he was incustody between 10 January 2017 and 23 March 2017 and then was granted EM bailuntil 7 September 2017, when he was sentenced.Factual background[2] The three drink-driving offences occurred over a period of about six weeksbetween 7 July 2016 and 21 August 2016. On 7 July 2016, Mr Tafere was stoppedwhen he failed to comply with a red traffic signal. He was spoken to and exhibitedsigns of recent alcohol consumption. His breath was subsequently found to contain534 micrograms of alcohol per litre of breath.[3] On 17 August 2016, Mr Tafere was stopped on an unrelated traffic matter. Heagain exhibited signs of recent alcohol consumption and breath test procedures werecarried out. His breath was subsequently found to contain 638 micrograms of alcoholper litre of breath. He was on the same day suspended from driving for a period of 28days by the Police.[4] Four days later, on 21 August 2016, Mr Tafere was again stopped on anunrelated traffic matter. Enquiries were carried out which revealed Mr Tafere to be asuspended driver. When spoken to he exhibited signs of recent alcohol consumption.Breath and blood test procedures were carried out and returned a result of197 milligrams of alcohol per litre of blood.[5] As to the receiving charge, on 12 November 2016 an Apple Macbook Pro wastaken in a burglary of a Grey Lynn flat. The next day, 13 November 2016, Mr Taferecame into possession of the stolen laptop, having received it from an associate in MtRoskill outside the TAB. He did not pay any money for the laptop, but arranged to1 New Zealand Police v Tafere [2017] NZDC 20220.sell the laptop to an acquaintance. The acquaintance suspected the laptop had beenstolen and confronted Mr Tafere, who ran away, throwing the laptop over a ledge ontoa grass bank.District Court sentence[6] After reciting the facts of the offending, Judge P A Cunningham commentedthat the drink-driving offences were the most serious charges, particularly because MrTafere had two previous convictions for driving with excess breath alcohol; one inApril 2015 and one in March 2016. The Judge said that the picture in front of hershowed that Mr Tafere had a severe alcohol problem and had recently been diagnosedwith depression. Although Mr Tafere did refer himself to Community and AlcoholDrug Services, he did not continue with their services. That was of concern to JudgeCunningham, who felt that Mr Tafere was dependent on alcohol and needed furthertreatment.[7] Judge Cunningham adopted a starting point of 12 months imprisonment on themost serious drink-driving charge to which she added six months imprisonment toreflect the fact that there were two other charges and another six months imprisonmentfor the charge of receiving. Judge Cunningham also added three months for MrTafere's previous convictions, which together added up to 27 months imprisonment.From that point, Judge Cunningham gave Mr Tafere a seven month discount for hisguilty pleas, which resulted in an end sentence of 20 months imprisonment.[8] Because the end sentence was less than two years imprisonment, JudgeCunningham had the discretion to substitute a sentence of home detention for thesentence of imprisonment.2 Judge Cunningham was of the view that a sentence ofhome detention was appropriate, commenting that it could not be anything lessbecause everybody who drinks and drives needed to be aware of the dangers theypresented to other people and also the danger they presented to themselves when theydrank and drove.2 Sentencing Act 2002, s 15A.[9] In considering the period of home detention, Judge Cunningham said that shetook into account the fact that Mr Tafere had spent two and a half months in custodyand then been on electronically-monitored bail for six months, which she regarded asbeing some restriction. The sentence finally imposed was one of six months homedetention. She also set special conditions which were to continue post-detention,which included submitting to judicial monitoring, undertaking the stop drink-drivingprogramme and continuing with his treatment for alcohol issues and any othertreatment or counselling as directed. Finally, Mr Tafere was indefinitely disqualifiedfrom driving.Appellant's submissions[10] Counsel for the appellant accepts that the starting point of 12 monthsimprisonment and uplifts for the other offending and for previous convictions wereappropriate. The short point on appeal is whether the Judge should have allowed anadditional reduction from the high point for the period of nearly six months thatMr Tafere had spent on electronically-monitored bail.Discussion[11] Appeals against sentence in the High Court are governed by s 250 of theCriminal Procedure Act 2011. This 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 have been imposed.[12] I accept that it is appropriate for a sentencing judge to allow for time spent incustody (if a sentence other than imprisonment is imposed) and also for time spent onrestrictive bail.3 In the present case, Judge Cunningham expressly took into accountthe time spent by Mr Tafere in custody and on restrictive bail in setting the length ofthe term of home detention. It matters not whether she reduced the sentence ofimprisonment before converting it to a term of home detention or subsequently made3 R v Gray [2008] NZCA 224; R v Tamon [2008] NZCA 88.some reduction in the term of home detention after conversion from a sentence ofimprisonment. It is the end result which matters.[13] While not a hard and fast rule, sentences of imprisonment are often halvedwhen they are converted into a term of home detention because offenders sentencedto a term of imprisonment of two years or less are automatically released after servinghalf their sentence.4 In the present case, the end sentence was 20 monthsimprisonment. An equivalent term of home detention would therefore be 10 months,which would be served in full.[14] However, Judge Cunningham sentenced Mr Tafere to six months homedetention, a reduction of four months on the 10 month term which might otherwisehave been imposed. The sole issue is whether Judge Cunningham was wrong not togive any further discount – that is, was a reduction of four months sufficient torecognise the two and a half months Mr Tafere spent in custody and the five and halfmonths he spent on electronically-monitored bail.[15] In all the circumstances, I am of the view that Judge Cunningham was notwrong to give no further discount. It is not an inflexible exercise of giving somethinglike a one-for-one discount. Although the EM bail conditions were restrictive, MrTafere was soon permitted to go shopping at Lynnmall, banking on Dominion Roadand to attend the New Lynn library for three hours once a week. He was also free toattend appointments with his legal counsel and there was also no impediment to MrTafere attending individual appointments or classes for the assessment or treatment ofhis alcohol issues.[16] Mr Tafere has complained that until 7 July 2017 he was unable to exercise inthe backyard of the EM bail address. While this may have been restrictive onMr Tafere, it was eventually eased.[17] When standing back and looking at the sentence imposed, this Court is alsoentitled to have regard to the fact that the seven months reduction for guilty pleas wasgenerous. That amounted to a discount of just over 25 per cent. In Hessell v R the4 R v Bisschop [2008] NZCA 229 at [18].Supreme Court stated that a 25 per cent discount was only available for a guilty pleaat the first available opportunity.5 Here the guilty pleas were only made after asentence indication was given by Judge Collins on 16 February 2017. In his sentencesubmissions in the District Court counsel for Mr Tafere acknowledged that he was notentitled to a 25 per cent discount as he did not plead guilty at the earliest opportunity.[18] A 15 per cent discount, which would ordinarily be more appropriate than a25 per cent discount, would bring the end sentence down from 27 months to 23 monthsimprisonment. Half of that is a term of 11 and a half months home detention.Mr Tafere's final sentence was a term of six months home detention, which is areduction of five and a half months.[19] As I mentioned, it is the end result that matters. The term of six months homedetention imposed on Mr Tafere was not imposed in error by Judge Cunningham. Itwas within the range available to her.[20] The appeal is dismissed.[21] I have been advised by Mr Frans that Mr Tafere has now completed his StopDrink Driving programme, which is commendable. Furthermore, his home detentionaddress has been transferred to the Salvation Army Epsom Lodge. I have beenprovided with a letter from a Salvation Army social worker, who confirms thatMr Tafere is making good progress. Again, he is to be commended for his attitude,which should set him right for the future._________________________Woolford J5 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.