ARAMOANA v NEW ZEALAND POLICE [2023] NZHC 1933

ARAMOANA v NEW ZEALAND POLICE [2023] NZHC 1933 [21 July 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-9[2023] NZHC 1933BETWEEN ZAHAN ARAMOANAAppellantAND NEW ZEALAND POLICERespondentHearing: 11 July 2023Appearances: S B W Yee for the AppellantA V Bryant for the RespondentJudgment: 21 July 2023JUDGMENT OF PALMER JCounsel/SolicitorsElvidge & Partners, NapierS B W Yee, Barrister, HastingsWhat happened?[1] Around 6.40 am on 21 March 2022, Mr Zahan Aramoana, then aged 25, wasdriving a friend home in Napier, contrary to his learner's licence. He lost control ofthe vehicle, crashing into another vehicle coming the other way. He was driving with792 micrograms of alcohol per litre of breath. The victim in the other car sufferedinjuries to her right arm and suffered emotionally and financially from the crash. MrAramoana was originally charged with drink-driving causing injury, aggravateddriving with excess breath alcohol, and driving contrary to an interlock licence. On 2November 2022, as the result of plea negotiations, the interlock charge was withdrawnand the drink-driving causing injury charge was replaced by a charge of aggravatedcareless driving causing injury. The charges of aggravated careless driving causinginjury and aggravated driving with excess breath alcohol are subject to maximumpenalties of three years and two years' imprisonment respectively.1[2] While on bail for those charges, at around 10.30 pm on 23 December 2022, thestaff at the Sideline Bar in Napier complained to the Police that Mr Aramoanaappeared extremely intoxicated and was trying to drive. The staff had taken MrAramoana's keys off him and when the Police arrived, he was trying to hotwire thevehicle. Breath testing indicated Mr Aramoana had 1,235 micrograms of alcohol perlitre of breath (almost five times the usual legal limit). Mr Aramoana was chargedwith attempting aggravated driving with excess breath alcohol and driving contrary toan alcohol interlock. The maximum penalties for those offences are two years and twoyears' imprisonment respectively.2[3] In May 2017, Mr Aramoana had been convicted of driving with excess bloodalcohol of 234 milligrams of alcohol per 1,000 millilitres of blood. He was ordered tomake reparation of $2,500. In January 2021, Mr Aramoana had been convicted ofdriving with a breath alcohol level of 711 micrograms of alcohol per litre of breath.He was ordered to pay a $600 fine and $130 in costs, was disqualified from drivingfor 28 days, and was given an alcohol interlock licence. Mr Aramoana has also beenconvicted twice of driving whilst suspended.1 Land Transport Act 1998 ss 39, 56(1) and 56(4).2 Sections 32(1)(b), 32(4), 56(1) and 56(4).[4] Aramoana pleaded guilty to the resulting four charges for the March andDecember 2022 offending. The Department of Corrections' advice to the Courtassessed Mr Aramoana as being at moderate risk of re-offending with the potential tocause serious harm, which may reduce if he is supported to address his alcohol misuse.It recommended home detention as a sentence to allow him to engage in alcoholcounselling.District Court sentence[5] On 29 March 2023, Judge R J Collins sentenced Mr Aramoana in the DistrictCourt at Napier for the March and December 2022 offending.3 The Judge commentedadversely on the dropping of the aggravated drink-driving causing injury charge andsaid that, in assessing the value of the guilty plea he would take into account the facthe was the significant beneficiary of plea negotiations.4 Unusually, he dealt withdiscounts first. He refused to give a discount for six factors – Mr Aramoana's:(a) admission to hospital at 17 for drug-induced psychosis, because it didnot contribute causatively to the offending;5(b) attempt to engage with the MASH Trust prior to sentencing, becauseMr Aramoana failed to attend his weekly programme and told them hehad no outstanding charges which was not true;6(c) information about mental health struggles, because it post-dated theoffending and did not contribute causatively to the offending;7(d) previous employment, which did not mitigate the offending;8(e) brother being a paraplegic as a result of a motorbike accident, whichthe Judge noted could be considered an aggravating factor;9 and3 New Zealand Police v Aramoana [2023] NZDC 7826.4 At [11], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].5 At [20].6 At [21]–[22].7 At [23].8 At [24].9 At [25](f) remorse, completion of restorative justice, and prospects ofrehabilitation.10[6] The Judge set a starting point of 18 months' imprisonment for theDecember 2022 aggravated drink-driving offence, given the aggravating factors of the"extraordinarily high reading", offending while on bail, and "being charged withaggravated driving while disqualified".11 He uplifted that as follows:[33] The uplifts are as follows. On a totality basis, that is I have adjusted theseuplifts for the fact of totality, for the first drink-driving matter combined withthe fact that not only you produced a high reading of 792 micrograms but youwere driving contrary to the interlock licence and contrary to the fact that youdid not have a licence anyway other than a learner's.[34] On its own, these matters may well have warranted a starting point of inexcess of 12 months and maybe quite considerably in excess of 12 months buton an uplift basis there will be 11 months for that matter and then uplifted forthe aggravated careless driving charge, which brings an uplift then of 17months and a final adjusted starting point of 35 months.[7] That appears to be an uplift by 11 months for "the first drink-driving matter"and then by another six months for the aggravated careless driving offence. The Judgediscounted the sentence by 20 per cent for the guilty plea. He said the total endsentence was two year and four months' imprisonment. But he also said the sentencewould be imposed this way:[36] on the charging document ending 5635, the aggravated drink-driving, on 23 December 2022 you are sentenced to one year and eightmonths' imprisonment and you are disqualified from holding orobtaining a drivers' licence for two years from 29 March 2023.[37] You are sentenced to concurrent terms of imprisonment on that chargeof six months for driving while disqualified in its aggravated form andyou are also disqualified for two years on that and the commencementof the disqualification is today, 29 March.[38] A concurrent term of imprisonment for the driving contrary to thealcohol interlock licence granted to you.[39] Charging document ending 1457 is two months' imprisonment butthat is concurrent with 1458 and 14[5]9 and its cumulative on the twomatters which related to 23 December, then in relation to 1458 and1459, 10 months' imprisonment concurrent amongst themselves but10 At [27]–[29].11 At [30]–[32].cumulative on the charges relating to 23 December and on all of thosematters you are disqualified for two years.[40] Total term of imprisonment then is 28 months or two years and fourmonths. Total disqualification is two years. On charging document1459, the charge of aggravated careless driving causing injury, youare sentenced to make reparation of $6,990 The appeal[8] Mr Aramoana appeals the sentence. The appeal was filed seven days out oftime because of counsel being on annual leave and then having Covid-19. The Policeare not prejudiced by the delay and do not take issue with it. I grant leave for theappeal to be filed out of time, in the interests of justice.[9] Mr Aramoana also seeks leave to adduce further evidence — an affidavit byMs Sinead Farrell, Mr Aramoana's partner, relating to the hardship she and herchildren have faced as a result of Mr Aramoana being in prison. Under r 20.16 of theHigh Court Rules 2016, this evidence is admissible only if there are special reasons.I do not take it into account in determining whether there was an error in the judgmentunder appeal. But I do take it into account in determining whether another sentenceshould be imposed.Submissions[10] Mr Yee, for Mr Aramoana, submits the Judge made two significant errors: intaking the December 2022 offending, rather than the March 2022 offending, as thelead offence; and in imposing a sentence, and an uplift to the total sentence, for thedriving contrary to an interlock charge which had been withdrawn. The Judge alsomistakenly referred to a charge of driving while disqualified. A starting point of ninemonths' imprisonment for the December 2022 offending would have been appropriatedue to it being an attempt and containing fewer serious aggravating factors than inSamson v Police.12 Accounting for totality, a starting point for all the offending of 25months' imprisonment would be appropriate. Mr Yee also submits there should havebeen a discount of at least five per cent for engaging in restorative justice and offering12 Samson v Police [2015] NZHC 748 at [22].to make amends through providing mechanical services, and a 25 per cent discountfor the guilty plea.[11] Ms Bryant, for the Police, submits the starting point and uplift were well withinthe available range, referring to R v McQuillan.13 It was open to the Judge to besceptical about Mr Aramoana's remorse and not award a discount for that. A fulldiscount for the guilty plea would contain an element of double counting. Ms Bryantacknowledges the hardship to Mr Aramoana's partner but submits it is not directlyattributable to his imprisonment.Should the appeal be upheld?[12] Under s 240(2) of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there has been a material error in the sentence imposed and a differentsentence should be imposed. The focus is on whether the end sentence is within theavailable range.14 The Court will only intervene and substitute its own views on appealif the sentence is "manifestly excessive".15[13] First, I do not consider the Judge's choice of the lead offence was necessarilya material error. The March 2022 offending was more serious in its potential penalty,involved actual rather than attempted drink-driving, and resulted in injury. But in theDecember 2022 offending the alcohol reading was higher, Mr Aramoana was notqualified to drive, the offending was egregious in trying to hotwire a car after keys hadbeen confiscated, it was the fourth conviction in six years, and it occurred while onbail. As this Court said in Thomas v R, deciding on the offence that is to be treated asthe lead offence is up to judicial reflection.16 It is the end sentence which matters. AsI explain below, I would have set a starting point based on the offending in March2022. However, it is not an error to do otherwise if the end sentence for all theoffending is within the available range.13 R v McQuillan CA129/04, 12 August 2004.14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].15 Ripia v R [2011] NZCA 101 at [15].16 Thomas v R [2020] NZHC 2138 at [27].[14] Second, however, the Judge erred in several respects. He was wrong tosentence Mr Aramoana to two months' imprisonment for driving contrary to an alcoholinterlock licence in March 2022.17 That charge had been withdrawn. The Judge alsomentioned that withdrawn charge in uplifting the total sentence.18 The Judge alsomistakenly referred to a charge of aggravated driving while disqualified.19 And,although it is not entirely clear, the net effect of the way in which the Judge imposedthe specific sentences appears to add up to a cumulative sentence of two years andeight months' imprisonment, rather than the two years' and four months which hestated and clearly intended. The question is whether those errors are material and adifferent sentence should be imposed. I address that below, on the basis of my ownapplication of sentencing principles.[15] Whata J in Samson provided a broad framework for sentencing for aggravateddrink-driving, depending on the number of seriously aggravating factors.20 MrSamson himself was placed in band two, where there were one or more seriouslyaggravating factors, attracting a starting point of 12 to 18 months. He had beenconvicted of a fifth offence of driving with excess breath alcohol and a ninth offenceof driving while disqualified. His exacerbating factors were a high alcohol reading,indefinite disqualification, and an unbroken chain of driving offending for nine years.His starting point was 12 months' imprisonment.[16] As explained above, and as Mr Yee submits is appropriate, I would set a globalstarting point for the March 2022 offending. Aggravated careless driving causinginjury attracts the highest penalty. The aggravated drink driving involved actual drink-driving rather than an attempt and had the most serious consequences of actual injuryto another. These was Mr Aramoana's third set of drink-driving offences. Because ofthe aggravating factors, particularly the injury, I would set the global starting point forthe two March 2022 offences at 18 months, at the top of band two or bottom of bandthree in Samson. I would uplift that by 10 months for the attempted aggravatingdriving with excess breath alcohol and interlock offending in December 2022. Thatresults in a total end sentence of 28 months' imprisonment, which I would impose as17 New Zealand Police v Aramoana, above n 3, at [39] (charge 1457).18 At [33].19 At [3], [30], [32] and [37].20 Samson v Police,, above n 12.cumulative sentences of 18 months and 10 months for the lead offences in March andDecember 2022 respectively.[17] In relation to the discounts:(a) I do not consider the Judge erred in giving a 20 per cent discount forthe guilty plea, because a greater discount may involve double-counting, given that it was reached as a result of a charge being droppedand a more serious charge being substituted for a less serious charge.21(b) The Judge did take into account Mr Aramoana's offer to make amendsbut did not believe it was genuine. This was open to the Judge. MrAramoana offended again relatively soon after the restorative justiceprocess began and after the March 2022 offending, failed to disclosethat at the conference, did not engage in rehabilitative measures, andonly pleaded guilty after plea negotiation. Mr Aramoana's offer to helpwith mechanical work was generic and there was not much informationas to how it would be carried out.22 There was reason for the Judge tobe sceptical about his remorse and rehabilitation.[18] A 20 per cent discount on 28 months' imprisonment is five and a half monthswhich gives a total of 22 and a half months. I would impose that as cumulativesentences of 14 and a half months and 8 months for the lead offences in March andDecember 2022 respectively. On a totality basis, I consider that is an appropriatereflection of the seriousness of both sets of offending. By comparison, I consider theJudge's total starting point of 35 months' imprisonment and stated end sentence of twoyears and four months' imprisonment, was too high in relation to the seriousness ofthe offending.[19] It is important that the sentence for the two sets of offending together areconsistent with similar cases. For example, in Doughtery v Police, where the offenderwas sentenced to two years and five months' imprisonment, the offending was21 Hessell v R, above n 4, at [62].22 Price v Police [2017] NZHC 2523 at [24]–[26].comparable but were the 11th and 12th occasions of such charges.23 In R v McQuillan,the Court of Appeal agreed two 12-month cumulative sentences imposed for twocharges of driving while disqualified and two charges of driving with excess bloodalcohol, were within the available range.24 In this particular case, an indicator that theend sentence I have reached appropriately reflects the totality of this offending is thatit is within the range that requires consideration of home detention.Home detention[20] I consider there is a compelling case that Mr Aramoana should be subject tohome detention rather than imprisonment. He has never experienced home detentionbefore, let alone imprisonment. The proposed address is suitable technically and interms of the occupants. The Department of Corrections report recommends homedetention. At the sentencing, the Police submitted that a sentence of home detentionwould be appropriate in the circumstances. Mr Aramoana's presence in the home,helping with his partner's two children and their nine-month-old baby will involvehim taking responsibility for, and contributing to, his family's welfare. It will allowhim to continue to be a father figure to his partners' two children and to be there forhis newborn baby.25 Home detention also allows him to engage in alcohol counsellingand other treatment programmes which he clearly needs.[21] I consider home detention is the least restrictive sentence that is appropriate inthe circumstances. Accordingly, as required by ss 8(g) and 10A of the Sentencing Act2002, I impose a sentence of home detention. I would have imprisoned him for a totalof 22 and a half months. He has served four months of that which I take into accountin setting the length of the period on home detention.26 Because Mr Aramoana cannotget parole on home detention and will have to serve the whole period, I set the periodof home detention at nine months and one week from the date of this judgment.23 Doughtery v Police [2015] NZHC 1777.24 R v McQuillan, above n 13, at [24].25 Sentencing Act 2002, s 8(i); Honeybun v Police [2022] NZHC 3445; Philip v R [2022] NZSC 149at [52]–[56]; and United Nations Convention on the Rights of the Child 1577 UNTS 3 (openedfor signature November 1989, entered into force 2 September 1990).26 Parole Act 2002, s 91(5).Result[22] I maintain the sentences of disqualification from driving for two years from 29March 2023 and reparations of $6,990.[23] I quash the cumulative and concurrent sentences of imprisonment imposed bythe District Court and replace them with two cumulative sentences of home detentionfor the lead offences in March and December 2022 totalling nine months and oneweek. In respect of each offence, the sentences are:(a) for the aggravated careless driving causing injury offence in March2022, six months and one week of home detention, to be servedconcurrently with four months' home detention for the aggravateddriving with excess breath alcohol charge in March 2022;(b) for the attempted aggravated drink-driving offence in December 2022,three months' home detention, to be served concurrently with twomonths home detention for driving contrary to the alcohol interlock inDecember 2022.[24] The sentences of home detention are subject to the conditions that MrAramoana is:(a) not to possess, consume or use any alcohol or drugs not prescribed tohim;(b) to attend an assessment for alcohol and drug counselling, treatment orprogrammes as directed by a Probation Officer;(c) to attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by and to the satisfactionof a Probation Officer; and(d) to undertake and complete appropriate assessment,treatment/counselling as directed by and to the satisfaction of aProbation Officer.Palmer J