Ah-Hing v Police no.2 HC Auckland CRI-2011-404-331
[2011] NZHC 1631
•25 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-331
BETWEEN MASIANO AH-HING Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 25 October 2011
Counsel: S E Asmundson for the Appellant
F J Cuncannon for the Respondent
Judgment: 25 October 2011
Reasons: 26 October 2011
REASONS FOR JUDGMENT OF ELLIS J
This judgment was delivered by me on 26 October 2011 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Public Defence Service, PO Box 76715, Manukau 2241
AH-HING V POLICE (NO 2) HC AK CRI-2011-404-331 25 October 2011
[1] These are the reasons for my judgment dated 25 October 2011 allowing Mr Ah-Hing’s appeal against a sentence of 15 months imprisonment imposed by Judge Andrée Wiltens on 28 July 2011. In that judgment I quashed the sentence of imprisonment and substituted a sentence of four months home detention.
[2] Mr Ah Hing was convicted of one charge of robbery under s 234 of the Crimes Act 1961 for which the maximum penalty is 10 years imprisonment. Mr Ah- Hing had one recent other dishonesty conviction.
[3] Mr Ah Hing’s latest conviction was the result of Mr Ah Hing’s visit to a bank on 24 August 2010. He noticed a woman withdraw a large amount of cash, which she placed into her handbag and left. He followed her. She collected her clothes from a laundromat and entered her vehicle, placing her handbag on the front passenger’s seat.
[4] Mr Ah Hing approached the vehicle and opened the driver’s door. He told the victim “give me your bag” and reached over to grasp the handbag. A struggle ensued. Mr Ah Hing pulled the handbag from the victim causing its strap to break.
[5] Mr Ah Hing ran away but shortly afterwards had a change of heart and returned the handbag to the victim. He was then picked up in a vehicle driven by an associate a short distance from the scene and later apprehended. He told the police he committed the robbery because he “needed the money”.
[6] In sentencing Mr Ah-Hing the learned District Court Judge adopted a starting point of 18 months in accordance with the guideline judgment of R v Mako.[1] No issue was taken with this starting point. After taking into account Mr Ah-Hing’s previous conviction and also his guilty plea the learned District Court Judge reached an end sentence of 15 months imprisonment. No particular issue was taken with that, either.
[1] R v Mako [2002] NZLR 170.
[7] Rather, the appeal arose because although the pre-sentence report had recommended a sentence of home detention, Judge Andrée Wiltens declined to
impose that sentence. His reason for so declining was that in his view Mr Ah-Hing had misled the writer of the pre-sentence report about the circumstances of the offending and that this had influenced the report writer’s recommendation. Judge Andrée Wiltens formed that view because the account of Mr Ah- Hing’s offending contained in the summary of facts suggested that Mr Ah Hing only returned the handbag to the victim when he was “confronted” by a member of the public, whereas the pre-sentence report suggests that Mr Ah Hing returned the bag of his own volition.
[8] Mr Ah-Hing’s appeal was brought on the basis that there was no material inconsistency between what he had told the Probation Service about the circumstances of his offending and the summary of facts to which he pleaded guilty.
[9] Significantly, it is also accepted by the Crown that there is no such inconsistency when the summary of facts is read in light of the witness statements provided to police. While it seems a member of the public may have shouted out at Mr Ah Hing, no-one actually confronted him. While his decision to return the bag might have been triggered or prompted by the shout, there was no element of coercion involved.
[10] Ms Cuncannon said it appears that the learned District Court Judge may not have been provided with an adequate explanation about that aspect of the summary of facts. As well, she advised that inquiries had been made of the report writer who confirmed that he:
(a) had a copy of the summary of facts when writing the report;
(b)took the summary of facts into account when making his recommendations; and
(c) remains of the view, expressed in his report, that a sentence of home detention is the least restrictive sentence available in all of the circumstances.
[11] It was accordingly accepted by the Crown that Judge Andrée Wiltens sentenced Mr Ah-Hing on the basis of an incorrect understanding of a material matter. Therefore in terms of s 121(3)(b) of the Summary Proceedings Act 1957, the Court is required to consider whether it should impose a substitute sentence, in this case a sentence of home detention.
[12] Having read Judge Andrée Wilten’s sentencing notes it seems plain enough that but for his misapprehension about the discrepancy between the summary of facts and the pre-sentence report, the learned District Court Judge would, in all likelihood have imposed a sentence of home detention. Having regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002 that, in my view, would have been the appropriate outcome.
[13] In particular, it seems that Judge Andrée Wiltens had a particular and entirely proper concern about denunciation and deterrence. However, as the Court of Appeal has said in R v Iosefa[2] the sentence of home detention carries with it in considerable measure those principles. I also note that the particular identified need to denounce and deter is somewhat lessened in Mr Ah Hing’s case once the account of his offending given to the Probation Service is accepted. His actions in returning the
bag voluntarily show both an appreciation at the time of the offending of his own wrong-doing and a willingness to act in accordance with that appreciation.
[2] R v Iosefa [2008] NZCA 453 at [41].
[14] As regards other relevant s 7 and s 8 matters, I note:
(a) Mr Ah-Hing has a supportive family and a suitable home detention address;[3]
[3] As to which refer [16] below.
(b) Mr Ah-Hing has been identified as at a low risk of re-offending;
(c) Mr Ah-Hing spent almost a year on bail pending his conviction without incident;
(d)He has previously been sentenced to community work and reparation which he has completed without incident;
(e) He has only one relevant previous conviction; and
(f) He is only 26 years old and his prospects of rehabilitation seem good; [15] For all these reasons I formed the view that the proper course was to quash
the sentence of imprisonment and to substitute a sentence of home detention. Counsel were agreed that, after taking into account the duration of the sentence of imprisonment imposed by Judge Andrée Wiltens (with which, as I have said, no issue was taken), the three months already spent in custody by Mr Ah Hing and his eligibility for parole, four months is the appropriate term. I agree.
[16] Lastly, I record that although it had not been possible to obtain formal reconfirmation of the suitability of Mr Ah Hing’s proposed home detention address, the original report was prepared quite recently (in July 2011). As well, the resident at the address (Ms Ah Hing’s partner) confirmed by affidavit that the relevant circumstances at the address remained the same and, in particular, that there were no new or additional people living there.
[17] Accordingly, and in formal terms, I ordered that Mr Ah Hing's appeal against the sentence of 15 months imprisonment imposed by Judge Andree Wiltens on
28 July 2011 was allowed and that sentence was quashed accordingly. A sentence of four months home detention was substituted on the conditions that Mr Ah Hing:
(a) upon release from prison, is to travel directly from Prison to the home detention address of 37A Ferguson Road, Otara, and remain at the address to be met by the supervising Probation Officer and Security Officer;
(b)is to abstain from the consumption of alcohol and drugs for the duration of home detention;
(c) is to undertake and complete the Alcohol programme administered by the Community Alcohol Drugs Services, and abide by the rules of the programme to the satisfaction of the programme provider and Probation Officer; and
(d)must comply with the requirements of electronic monitoring as directed by the Probation Officer.
Rebecca Ellis J
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