Akuhata v The Queen
[2017] NZHC 2237
•15 September 2017
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI 2017-416-012 [2017] NZHC 2237
BETWEEN WETINI TUHIWAE AKUHATA
Appellant
AND
THE QUEEN Respondent
Hearing: 12 September 2017 Appearances:
M Lynch for the Appellant
C Stuart for the Crown
via AVL from Wellington High CourtJudgment:
15 September 2017
JUDGMENT OF DOBSON J
[1] The appellant (Mr Akuhata) was sentenced by Judge W P Cathcart in the Gisborne District Court on 14 July 2017 to 24 months’ imprisonment on a conviction for possession of cannabis for sale.1
[2] Mr Akuhata has appealed against the aspect of his sentence that declined to substitute a sentence of home detention. More particularly, he appeals against the Judge’s refusal to accept that such a substituted sentence would be appropriate in the event that Mr Akuhata could provide an address assessed as suitable for serving a
sentence of home detention.
1 R v Akuhata [2017] NZDC 15543.
The offending
[3] On 14 April 2016 Police officers searched two premises in the Gisborne area pursuant to warrants. No-one was encountered at the first address where the Police found cannabis drying that they calculated would result in some 9.67 kilograms or
21 pounds of cannabis. At the second address the Police found Mr Akuhata and two of his brothers processing dried cannabis in a shed where they had available electronic scales and a supply of plastic ounce bags. The Police discovered 15 shopping bags full of cannabis and 40 one ounce bags of cannabis head.
[4] All the cannabis found at both properties was attributed to the defendants, totalling some 20.5 kilograms or 45 pounds. This included some 29.5 pounds of cannabis head material. The Police estimated that the value of the cannabis head found would vary between $87,000 and $116,000 depending on whether it was sold in pound or ounce lots.
[5] Each of the brothers was charged with one charge of possessing cannabis for sale.
The sentencing
[6] The Judge responded to a request for a sentencing indication for Mr Akuhata and one of his brothers on 9 February 2017.2 The components of the sentencing indication are not challenged. Regarding Mr Akuhata, the Judge indicated he would adopt a starting point of three years two months’ imprisonment and apply allowances for various mitigating factors including a guilty plea.
[7] Before the Judge completed the sentence indication, counsel pointed out to him that he had attributed certain personal circumstances to the wrong brother, which resulted in Mr Akuhata being entitled to a further two month deduction. The sentencing indication was completed on terms that the sentence would be two years
and three months’ imprisonment.
2 R v Akuhata DC Gisborne CRI-2016-016-000761, 9 February 2017.
[8] The sentence indication was accepted on terms that Mr Akuhata hoped additional matters raised by a PAC report might warrant a reduction from the sentence indication that had been provided. On 22 February 2017 the Judge acknowledged that aspiration when entering a conviction, but declined counsel’s request for an appendix to the PAC report on Mr Akuhata to be prepared. The Judge did so because he considered agreeing to such a request to be inconsistent with
Mr Akuhata’s acceptance of the sentence indication.3 Despite that basis for the
refusal to request an appendix to the PAC report, the Judge acknowledged that Mr Akuhata would be at liberty to make submissions if there “are issues of material difference at sentence”.
[9] The PAC report assessed Mr Akuhata as being at low risk of re-offending and low risk of posing harm to others. He was assessed as suitable for a community-based sentence and the report writer noted Mr Akuhata had advised that he and his partner had moved out of the rental property where the offending had occurred in the hope that this would help his case for home detention. That prospect was not taken further because electronic monitoring inquiries had not been requested by the Court. Unsurprisingly, because of that and Mr Akuhata’s acceptance of an indication of two years and three months’ imprisonment as the appropriate sentence, the PAC report recommended a sentence of imprisonment.
[10] On sentencing, the Judge reconsidered the extent of mitigating circumstances and recognised that Mr Akuhata was entitled to a somewhat larger discount because of additional information on his employment situation, the impact of imprisonment on his family, and a measure of remorse. The Judge therefore reduced the sentence to 24 months.
[11] Having done so, the Judge acknowledged the need to consider whether a sentence of home detention which had been urged on him by Mr Lynch for Mr Akuhata would be appropriate. The Judge noted that he was clearly a suitable candidate and that “the address is technically suitable”. The issue for the Judge was whether the gravity of the offending warranted substitution of a sentence of home
detention.
3 R v Akuhata [2017] NZDC 4017 at [4].
[12] The Judge’s final view was that the level of offending was such that the only
outcome was a term of imprisonment. The Judge concluded:4
Because of the gravity of the offending I am satisfied that on the basis of the relevant principles and purposes, and the case law, only a term of imprisonment would meet all of [the requirements in s 16 of the Sentencing Act 2002].
[13] There are two concerning aspects of the sentencing process. First the terms on which the Judge declined the request on behalf of Mr Akuhata for an appendix to be prepared to the PAC report. Acceptance of the sentence indication that he would be imprisoned for two years and three months does not estop an offender from making submissions in support of a final sentence of home detention if additional mitigating circumstances justified an additional three months reduction. In this case it seems clear that Mr Lynch had conveyed to the Court that acceptance of the sentence indication was on that basis.
[14] One possible justification for declining the request was suggested by Mr Stuart in arguing the appeal. The Judge could have formed the view that the relative seriousness of the offending was such that there could never be an extent of additional mitigating circumstances that would be sufficient to outweigh the importance of marking the relative seriousness of the offending by imposing a prison sentence. Such an approach (which I do not attribute to the Judge) would raise the spectre of pre-determination.
[15] The second concern is that the Judge appears to have considered the prospect of substituting a sentence of home detention during his sentencing remarks on the basis that he had available a report confirming the suitability of a proposed address when he had previously refused a request for any such appendix to the PAC report being prepared. I was advised by counsel that an appendix to a PAC report had been requested in relation to a co-offender, so the prospect arises that the Judge had the
wrong offender in his mind at that point in his reasoning.
4 Akuhata, above n 1, at [22].
Relevant error?
[16] Mr Lynch’s submissions referred to these matters as context, but did not rely on them as errors which of themselves justified a fresh consideration of the sentence. The focus of the appeal was on the extent of reliance placed by the Judge on the relative gravity of the offending as the primary reason for rejecting the prospect of a sentence of home detention.
[17] For the Crown Mr Stuart did not accept that either of the concerns that I have described constituted an error by the Judge. He submitted that the Judge was entitled to reject the request that an appendix be prepared because the prospect of an alternative sentence of home detention was at that point not a live one. The absence of an appendix did not foreclose the options available to the Judge. He may well have appreciated at the time he declined the request for an appendix to be prepared that, if additional mitigating circumstances took the length of a prison sentence down sufficiently for home detention to be an available option, then that alternative could be recognised subject to a report then being prepared which confirmed the availability of a suitable address.
[18] As to the confusion on sentencing over the existence of a report confirming the availability of a suitable address, Mr Stuart submitted that a misunderstanding on that point was not material to the reasons for rejecting the prospect of a home detention sentence, where those reasons were sufficient, open to the Judge, and did not demonstrate any error.
[19] The impression given by the terms on which the Judge rejected a request for an appendix was unfortunate. The incorrect understanding by the Judge that he had available to him an appendix confirming the availability of a suitable address for Mr Akuhata when there was no appendix at all is not, in the narrow sense, adverse to Mr Akuhata’s interests. The mistaken view could not have precluded a sentence of home detention being considered. However, the prospect that the Judge confused this defendant for another, in a context where he had made the same mistake during the sentence indication is troubling.
[20] Having reflected on both these concerns in light of all the arguments raised in the appeal, I am sufficiently concerned that they may indicate an error in the Judge’s approach to consider that the safest course is to undertake a re-sentencing exercise with respect to the assessment of home detention. Neither concern should be treated as a significant mistake by the sentencing Judge. In other circumstances each might not justify appellate reconsideration of the sentence. I am however satisfied that a reconsideration is the appropriate course in Mr Akuhata’s case.
Approach on appeal
[21] Mr Stuart reminded me of the constraints on appellate reconsideration of a sentencing Judge’s decision not to substitute a sentence of home detention. This is reflected in the following observations of the Court of Appeal, first form the appeal in James v R: 5
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
Also, from the earlier appeal in R v D: 6
[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
5 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
6 R v D (CA253/2008) [2008] NZCA 254.
Arguments on appeal
[22] Mr Lynch cited one High Court appeal and five High Court sentencings in which defendants were sentenced for possession of cannabis for supply to terms of home detention, where arguably the gravity of the offending was more serious than in the present case.7
[23] Mr Lynch did not suggest that those decisions were sufficiently analogous that the outcome ought to be followed in the present appeal. Rather Mr Lynch relied on them as examples of acceptance by this Court of the adequacy of home detention to meet the purposes of deterrence and denunciation for commercial scale involvement in the supply of cannabis. Arguably the examples showed that home detention has been treated as a sufficient sentence where the offending was more serious than in this case.
[24] With the exception of the case of O’Driscoll,8 I accept from the summaries provided that the level of seriousness involved in those other cases was at least comparable if not more serious than is involved in the present case. In a number the defendants were also charged with cultivating cannabis which on sentencing is to be treated as an aggravating feature. The point is that the relative seriousness of the offending is not determinative of the outcome. The High Court sentencings relied on all appear to have had a variety of material or compelling mitigating circumstances that applied in favour of the various defendants.
[25] Mr Lynch’s more specific criticism of the Judge’s approach was that the dominance of the perceived need for deterrence and denunciation relative to the gravity of the offending preoccupied the Judge to an extent that he did not reconsider the other relevant ss 7 and 8 purposes and principles in his evaluation as to whether
home detention should be substituted.
7 O’Driscoll v Police [2015] NZHC 346; R v Sharp HC Rotorua CRI-2010-063-004641; R v Walker HC Rotorua CRI-2010-047-000134, 3 August 2010; R v Reid HC Auckland CRI-2010-006-570, 21 September 2010; R v Delamore HC Auckland CRI-2010-004-1934,
5 October 2010; and R v Seymour HC Whangarei CRI 2009-027-001356, 3 February 2010.
8 O’Driscoll v Police, above n 7.
[26] Mr Lynch submitted that this criticism had been accepted by Williams J in the appeal in Edwards. 9 In that appeal the sentencing Judge had assessed all relevant ss
7 and 8 factors in determining an end sentence of 12 months’ imprisonment, but had failed to reflect on them separately when assessing whether to substitute a sentence of home detention. That was found to be an error that warranted reconsideration of the prospect of home detention.
[27] Mr Stuart disputed this characterisation of the Judge’s analysis on the present sentencing. He submitted that the process of reconsidering the ss 7 and 8 factors when deciding whether to substitute a sentence of home detention did not require a Judge to slavishly list and comment on each of them where there was a sufficient indication of the weight placed on them by the Judge in an overall assessment.
[28] The adequacy of consideration of factors for and against substituting a sentence of home detention will always be intensely fact specific in each case. In this case, there is no argument that the original starting point to reflect the seriousness of the offending relative to the bands in Terewi was three years and two
months’ imprisonment.10 Mitigating circumstances appropriately reduced that to
24 months (a discount of nearly 37 per cent). Revisiting those mitigating circumstances of the offender to weigh them against the relatively substantial level of possession of cannabis for sale (albeit in an unsophisticated operation) includes:
· lack of relevant previous convictions;
· positive work record and the support of his employer;
· positive contribution to a family life and significant dependence on him by a wife and three children;
· wider family support, including from his father;
9 Edwards v New Zealand Police [2016] NZHC 2897 at [14]–[15].
10 R v Terewi [1999] 3 NZLR 62 (CA).
· a measure of remorse, albeit not indicated immediately on apprehension;
and
· being assessed as relatively low risk of reoffending or risk of harm to others.
[29] The sentencing did not evaluate the cumulative weight of these factors which would all support substituting a sentence of home detention.
[30] Giving what I consider to be appropriate weight to all of these factors, this is not a case that falls near to the “dividing line” as contemplated by the Court of Appeal in R v D. In my view a standalone evaluation of the factors for and against home detention come down clearly in favour of home detention.
[31] I am satisfied that the Judge’s evaluation of this aspect of the sentencing involved error and that Mr Akuhata ought to be afforded the opportunity to propose and have assessed a residential address at which he would serve a sentence of home detention. Mr Lynch was not able to advise me of any contingent arrangements that are available. His instructions are however that the whanau is keen to advance any arrangements that might be found acceptable.
[32] A material factor in my weighting of the relevant considerations is the prospect of Mr Akuhata resuming work. That may create its own difficulties, but I was assured by Mr Lynch that defendants serving sentences of home detention in the Gisborne region are able to make arrangements to maintain work in the wider district in the forestry industry in which Mr Akuhata works.
[33] Accordingly the appeal is allowed. The sentence of two years’ imprisonment is substituted with a term of imprisonment for two years subject to an order granting Mr Akuhata leave to apply for cancellation of that sentence and substitution of a sentence of home detention if a suitable address is approved. In the event that such an address becomes available then the sentence of imprisonment is to be cancelled and substituted with a sentence of home detention for a period of 12 months less a
period that is twice the number of weeks of imprisonment served by Mr Akuhata at the time of substitution.
Dobson J
Solicitors:
Woodward Chrisp, Gisborne
Elvidge & Partners, Napier
3
0