IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-21 [2015] NZHC 200

BETWEEN	DANIEL FONOTI
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	16 February 2015	

Counsel:	
S Withers for the Appellant
R Thomson for the Respondent	

Judgment:	
18 February 2015	

JUDGMENT OF MUIR J

This judgment was delivered by me on 18 February 2015 at 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Crown Solicitor, Auckland
Counsel:	S Withers, Auckland

FONOTI v POLICE [2015] NZHC 200 [18 February 2015]

Introduction

[1]       On 3 December 2014 the appellant, Mr Fonoti, was convicted of driving with excess breath alcohol (third or subsequent offence) under s 56(2) of the Land Transport Act 1998.

[2]       The maximum sentence for this offence is imprisonment of up to two years or a fine of $6,000.  In addition, the Court must disqualify the offender from driving for a minimum period of one year.

[3]       On 28 January 2015 Mr Fonoti was sentenced to seven months imprisonment and  two   years  disqualification  from  driving.     He  appeals   the  sentence  of imprisonment on the grounds that it is manifestly excessive.  He further submits that the District Court erred in failing specifically to consider whether a sentence of home detention could be imposed.

Factual background

[4]       The appellant is 41 years old.   He lives with his partner and two children aged 2 and 8.  His partner’s parents reside at the same address.  He is the principal breadwinner for the family.

[5]      On 24 September 2014 he was stopped by a marked patrol vehicle on Karangahape Road, Auckland.    He was exhibiting signs of recent alcohol consumption.  An evidential breath test confirmed a reading of 778 micrograms of alcohol per litre of breath, almost twice the limit applicable at the time.

[6]       He has five previous convictions for excess breath or blood alcohol in 1996,

1997, 2003, 2006 and 2008.   The previous breath alcohol readings have typically been in the range of approximately 600-850.

[7]       Mr Fonoti has 34 previous convictions in total including serious offending for which periods of imprisonment were imposed in 1992 and 2000.   Latterly his offending has been less serious.

[8]       The pre-sentence report indicated a medium risk of reoffending and medium risk of harm to others given his previous convictions for driving with excess blood alcohol and convictions for domestic violence.

[9]       He is employed as a leading hand and machine operator by Fulton Hogan on a night shift.  A positive reference from that firm was provided to me.  He is said to be polite, courteous, punctual and with a good work ethic.  The company has pre- employment, post incident and ‘reasonable cause’ drug and alcohol testing regimes. The appellant has given no cause to conduct a drug or alcohol test.

[10]     Although it was not a matter in respect of which the District Court was addressed, I am advised by counsel that his partner has a serious medical condition identified as panhypopituitarism which requires semi-frequent hospital admissions for periods of three to four days.

[11]     The pre-sentence report recommended supervision and community detention. His residential address was considered suitable for an electronically monitored sentence.   The report writer noted that he presented as willing to complete any counselling or programmes as directed and that his motivation was good.

The District Court’s decision

[12]   The experienced sentencing Judge set a starting point of nine months imprisonment, reduced by two months to acknowledge the appellant’s guilty plea, resulting in a final sentence of seven months imprisonment.   He also added the period of disqualification referred to.

[13]     The sentencing notes recite the circumstances of the offending and record the previous convictions.   His Honour noted that in respect of the last of these, the appellant  was  sentenced  to  the  maximum  period  of  community  detention  (six months) together with supervision of nine months but that “here you are, back again. You still have not learnt your lesson”.

[14]     His Honour then continued:

[3]        The Supreme Court has made perfectly plain that drink-driving is a serious offence.  There are so many people in New Zealand who just shrug their shoulders and think it is only a bit of drink-driving, but it is not, it is a serious offence and you have simply not learnt your lesson.

[4]        The Judges of this country have a positive duty to try and protect innocent roader [sic] users from drunken hoons like you.  You have shown that you are not prepared to reform and I am afraid there is no sentence other than one of imprisonment that is available today.

[5]        My starting point is one of nine months imprisonment.  I will reduce that by two months to acknowledge your guilty plea; that therefore becomes a sentence of seven months’ imprisonment.   On top of which you will be disqualified for a period of two years.

[6]        If you come back again for still more after that, you can expect sentences close to the statutory maximum.

Ground(s) of appeal

[15]     Mr Fonoti appealed the sentence on the basis that it was manifestly excessive in that:

(a)       the starting point was excessive in the circumstances;

(b)       the District Court failed to take into account all relevant ss 7 and 8 matters in the exercise of its discretion.  In particular it placed undue weight on the number of previous convictions and failed to consider mitigating factors relevant to the offending and the offender; and

(c)       the Court erred in failing specifically to consider whether a sentence of home detention should be imposed and that this breached the requirement to impose the least restrictive sentence appropriate under s 10A of the Sentencing Act (“the Act”).

Appellant’s submissions

[16]     In his written submissions Mr Withers relies significantly on the decision of Wild J in Clotworthy v Police to suggest the District Court’s starting point of nine months imprisonment was manifestly excessive.1   In that case his Honour identified
at least ten factors as relevant in the context of multiple EBA offending.  Mr Withers

1	Clotworthy v Police (2003) 20 CRNZ 439.

submitted that, apart from a level of alcohol almost twice the legal limit (which he described as high although at a level “routinely dealt with by the courts”) and the fact that the appellant had an “unhelpful” history of criminal offending none of the aggravating and all of the mitigating factors recognised in Clotworthy were engaged. He placed particular emphasis on the fact that almost six years had elapsed since previous equivalent offending, that in that context community detention and supervision had been imposed and that such sentence had “occasioned the longest break in the appellant’s offending”.

[17]     Adopting the comments in the pre-sentence report he described the appellant as capable of rehabilitation and reintegration and said that this, together with other mitigating factors (referred to and recognised in Clotworthy) were simply ignored in a sentence which “unduly focused on the number of previous convictions”.

[18]    In his written material Mr Withers submitted that having regard to the appellant’s circumstances the appropriate starting point was closer to three months imprisonment before discount for a guilty plea.  That position was not maintained in oral argument.

[19]     Significantly, in terms of the conclusions I reach, Mr Withers went on to submit that even if he was wrong in relation to a suggested starting point, home detention should have been imposed having regard to ss 7 and 8 purposes and principles.

Respondent’s submissions

[20]     For the respondent Ms Thomson submitted that:

(a)	The starting point and, more importantly, the end sentence were well within the available range; and

(b)	The  District  Court  had  not  erred  in  imposing  a  sentence  of imprisonment rather than home detention.

[21]     Like Mr Withers she canvassed the Clotworthy criteria, emphasising the high breath alcohol level, number of previous breath or blood alcohol offences, the appellant’s  apparent  inability to  learn  his  lesson  from  the  previous  sentence  of community detention and his “regrettable criminal history”.

[22]   Ms Thomson  identified  a  number  of  decisions  which,  although acknowledging the area to be fact specific, she suggested may assist the Court in assessing whether the sentence was manifestly excessive.  These included Williams v Police,2 Bidois v Police,3 and Mokotupu v Police.4

[23]    Of these she placed greatest reliance on Mokotupu which post-dates the introduction of the Act’s home detention regime and in which a fifth time offender appearing within a relatively short time after her fourth offence and with the aggravating factor of having her grandchildren  in the car, was sentenced  to six months imprisonment with that sentence upheld on appeal.  She referred particularly to the observation of Chisholm J that “while a third of fourth conviction did not
invariably lead to a sentence of imprisonment, this was increasingly the case”.5

[24]     While candidly acknowledging the District Court’s sentencing notes were spare and did not directly address the purposes, principles and mitigating factors which may have militated against a term of imprisonment, she submitted that it cannot be assumed that simply because a factor was not listed in the judgment it was not taken into account.  In that respect she relied on the experience of the sentencing Judge, the fact that his familiarity with mitigating factors in a case like the present could be safely assumed and the fact that he must have had in mind, by virtue of the pre-sentence report, the possibility of a sentence of community or home detention.

[25]     She submitted that the District Court’s repeated observation that the appellant had  “not  learnt  his  lesson” implied  that  it  saw the most  important  principle of

2	Williams v Police HC Auckland A178/01, 14 December 2001.
3	Bidois v Police HC Hamilton CRI-2006-419-123, 1 November 2006.
4	Mokotupu  v  Police  HC  Christchurch  CRI-2009-409-19,  19  February  2009,  adopting  the comment of Panckhurst J in Coles v Police HC Christchurch CRI-2007-409-000161, 23 August
2007.
5	At [8].

sentencing to be personal deterrence and that in light of the appellant’s recidivist

behaviour this should be seen as trumping other considerations.

[26]     Against that background, and while acknowledging that another judge may have weighed the factors differently, she submitted that the decision was not manifestly excessive nor wrong in principle.

Approach to appeal

[27]     Section 250(2) of the Criminal Procedure Act 2011 states:

(2)	The first appeal court must allow the appeal if satisfied that—

(a)	for any reason, there is an error in the sentence imposed on conviction; and

(b)	a different sentence should be imposed.

(3)	The first appeal court must dismiss the appeal in any other case.

[28]     The  Court  of  Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2)  was  not  intended  to  change  the  Court’s  previous  approach  under  the Summary Proceedings Act 1957.6   The inquiry remains the same, therefore, in terms of  whether  there  is  a  material  error  in  the  sentence  as,  for  example  that  it  is manifestly excessive, wrong in principle or incorrectly calculated.  The “manifestly excessive” principle is “well-engrained” despite the absence of express reference in s 250.7

[29]     The High Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the
process by which the sentence is reached.8

6	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
7	At [33] and [35].
8	Ripia v R [2011] NZCA 101 at [15].

Analysis

[30]     In my view the central issue is whether the District Court was in error (in a s 250(2) sense) in not imposing a sentence of home detention.

[31]     I consider this the central issue because, up until that point in the analysis, I do not believe it can be said that the result, although clearly at the upper end of the range, was manifestly excessive having regard to the authorities cited by the respondent, and in particular Mokotupu v Police.9

[32]     I  accept  that  some  of  the  aggravating  features  present  in  that  case,  for example the presence of grandchildren in the car and the fact that the most recent offending occurred only three years prior to the current offending, are not present in the  instant  case.    However  the  blood  alcohol  levels  were  similar  and  whereas Ms Mokotupu  had,  in  respect  of  her  most  recent  offending,  been  sentenced  to community work, Mr Fonoti’s most recent offending had invited a sentence more severe in terms of the s 10A hierarchy (community detention and supervision).

[33]     There is also, in terms of a Clotworthy10  analysis, the aggravating factor of the appellant’s extensive criminal history.   Nor is the length of time between his current  and  previous  breath  alcohol  offending  of the duration  (10  years) which appears to have been critical in the decision of Whata J in Carran v Police to substitute “by a slim margin” a sentence of community detention (with conditions) for the seven months imprisonment previously imposed on the appellant in that case.11

[34]     The  range  of  sentences  appearing  in  the  appendix  to  Clotworthy  further confirms that position, although I accept that some care needs to be taken with all decisions predating the current home detention regime.12

[35]     By the conclusion of the oral argument Mr Withers did not in fact take issue with the fact that seven months imprisonment was a sentence available to the Judge

9	Mokotupu v Police, above n 4.
10	Clotworthy v Police, above n 1.
11	Carran v Police [2013] NZHC 1450.
12	Clotworthy v Police, above n 1.

and  not  manifestly  excessive  in  terms  of  comparable  cases.    In  making  that concession he emphasised however that such conclusion invited a home detention analysis which did not occur and which if it had, should have resulted in the imposition of such a sentence having regard to the Act’s purposes and principles.

[36]     In terms of the hierarchy of sentences set out in s 10A, home detention falls between  community detention  and  the most  onerous sentence  available,  namely imprisonment. As Thomas J recently held in Howard v Police:13

A Court is bound to consider whether home detention should be imposed if it is technically available within the terms of s 15A, even if the defendant makes no submissions it should be imposed.

[37]     The  present  case  was  one  where  there  was  no  such  submission.    The defendant’s  counsel  had,  in  the District  Court, submitted in favour of a further sentence of community detention.  The pre-sentence report had however identified electronic monitoring as available with no known issue with the safety and welfare of the address’ occupants.

[38]     For a sentence of home detention to be imposed the sentencing judge must follow a two step test.   The first requires that the sentence must be for two years imprisonment or less and is clearly satisfied in the present case.   The sentencing judge must then exercise a discretion as to whether it is appropriate to commute the sentence  to  one  of  home  detention.     There  is  no  presumption  that  either
imprisonment  or  home  detention  is  to  be  preferred.14      What  is  required  is  an

evaluative exercise with the judge required to consider all those ss 7 and 8 purposes and principles relevant to the particular case.15

[39]     The Court of Appeal has also observed that the closer the appropriate prison sentence is to the two year maximum the less likely it is that home detention is appropriate.    Conversely,  the  lower  the  appropriate  prison  sentence  the  more
appropriate home detention will be.16

13	Howard v Police [2015] NZHC 150 at [37].
14	Manikpersadh v R [2011] NZCA 452.
15	R v Vharvha [2009] NZCA 588, as cited in Manikpersadh v R.
16	R v Hessell [2010] NZCA 450, [2010] 2 NZLR 298.

[40]     Nor can I overlook the fact that, as the explanatory note to the relevant Bill introducing  home  detention  emphasised,  its  purpose  was  to  address  the  sharp increase in the prison population which was regarded as “no longer sustainable either financially nor socially”.17      This background is discussed in the Court of Appeal’s decision in R v Hill.18

[41]     In  the  present  case  the  difficulty  is  that  if  the  District  Court  actively considered the home detention option at all, it did not set out any reasons for the exercise of its discretion to decline it.   I appreciate that the demands of a busy District Court list often preclude elaborate discussion, but the absence of any reference to the issue makes opaque what should be transparent.   Importantly, in terms of the ss 7 and 8 analysis which must be invoked in the home detention context, an assessment that focuses only on one purpose to the exclusion of others
amounts to an error of law.19

[42]     To the extent the District Court may be taken as having actively rejected home detention, I consider that it focused too heavily (indeed exclusively) on denunciation and deterrence and did not balance other relevant purposes and principles.  Of these the principle provided in s 8(g) (least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences) is the most compelling.   Relevant to that principle was the potential for rehabilitation in relation to which an encouraging pre-sentence report was received and which is the subject of several recommended conditions if home detention is substituted for the
existing sentence.20

[43]     The Court was also obliged to take into account s 16(1) which relevantly provides:

16	Sentence of imprisonment

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

17	Criminal Justice Reform Bill 2006 (93-1).
18	R v Hill [2008] NZCA 41, [2008] 2 NZLR 381at [32]-[33].
19	Fairbrother v R [2013] NZCA 340; Manikpersadh v R above n 14.
20	For a similar approach see Howard v Police, above n 13, at [40].

[44]     There is no recognition in the decision of the potential to satisfy any of the recognised purposes by a sentence other than imprisonment or analysis of why no other sentence would be consistent with s 8 principles.

[45]     Added weight is given to my concerns by the following factors:

(a)       In terms of the Court of Appeal’s approach in   R v Hessell a seven month prison sentence clearly favoured home detention;21

(b)       While I accept there is no absolute requirement that sentences for repeat offending move by increments up the sentencing hierarchy,22 an escalation of sentence from community detention to imprisonment in circumstances where six years has elapsed between offending and the previous sentence was imposed in the aggravating circumstance of rapid repeat offences does, in my assessment, raise consistency issues
in terms of the sentencing of this particular offender; and

(c)       Provided the outcome is consistent with principle and authority, the premium which in my opinion applies to facilitating (if acceptable to Probation) the appellant’s continued participation in the work force and support of his family.

[46]     The  absence  of  discussion  about  these  issues  in  the  sentencing  notes reinforces me in my belief that the District Court’s sentencing focus was too narrow, giving excessive weight to one factor and insufficient to others.   That provides a proper basis for me to interfere with the “fettered discretion” which is engaged in the
home detention context.23

[47]     I consider that the matters of concern to the Judge can be met in a less restrictive  way  which  should  have  been  addressed.     Moreover,  in  terms  of community  protection  a  lengthy  period  of  disqualification  was  imposed.    The
appellant has no history of breaching previous disqualification orders.

21	R v Hessell, above n 16.
22	Mokotupu v R, above n 9, at [7].
23	Manikpersadh v R, above n 14; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271, at [17].

Result

[48]     The appeal is allowed and the sentence of imprisonment is set aside.  In lieu thereof the appellant is sentenced to a period of four months home detention with conditions, which I reduce to three months on account of time served in custody.

[49]     The  conditions  are  as  specified  in  Community  Probation’s  report  dated

16 February 2015, namely that the appellant is to:

(a)       travel  directly  to  the  address  of  257  Rosebank  Road,  Avondale, Auckland and await the arrival of a Probation Officer and electronic monitoring company;

(b)       reside at the address of 257 Rosebank Road, Avondale, Auckland for the duration of his home detention sentence and not to leave that address without the prior written approval of his probation officer;

(c)       not  consume,  purchase  or  possess  alcohol  or  illicit  drugs  for  the duration of his home detention sentence;

(d)       attend alcohol and drugs assessment and, if found suitable, to attend and complete to the satisfaction of both the programme facilitators and the probation officer such programme(s)/counselling/treatment(s) (including a residential programme) as may be specified;

(e)       be  assessed  for,  and  if  suitable,  to  complete  a  drink  driving programme to the satisfaction of the probation officer and programme provider;

(f)       notify his probation officer prior to starting, terminating or changing his   position   or   place   of   employment   and   to   only   undertake employment paid or unpaid that has been approved by his probation officer; and

(g)	undertake any other counselling/treatment as directed by the probation officer.

[50]	Pursuant to s 80N conditions (d)-(g) inclusive are imposed as special post- detention conditions, expiring 12 months from the detention end date.  In addition I
impose the standard post detention conditions under s 80O for the same period.

Muir J