Akuhata v The Queen - [2017] NZHC 2237

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 Court

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akuhata v The Queen

Details

AGLC: Akuhata v The Queen [2017] NZHC 2237
Case: [2017] NZHC 2237
Decision Date: 15 September 2017

CaseChat Overview and Summary

In Akuhata v The Queen, the appellant, Mr Akuhata, appealed against the aspect of his sentence that declined to substitute a sentence of home detention. The case involved Mr Akuhata's conviction for possession of cannabis for sale, which led to a 24-month imprisonment sentence. The legal issue at hand was whether the trial judge had erred in not accepting that a substituted sentence of home detention would be appropriate if Mr Akuhata could provide an address assessed as suitable for serving such a sentence.

The court examined the legal principles applicable to sentencing decisions, particularly the discretion of the trial judge in determining whether home detention could adequately meet the purposes of deterrence and denunciation. The court highlighted that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits, but rather to determine if the judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong. The court also noted that the adequacy of home detention to meet the purposes of deterrence and denunciation is a matter of judgment for the sentencing judge.

The court found that the trial judge had indeed erred in his evaluation of the factors for and against substituting a sentence of home detention. The judge did not sufficiently weigh the cumulative mitigating circumstances, which would all support substituting a sentence of home detention. Given the appropriate weight to these factors, the court concluded that a standalone evaluation of the factors for and against home detention came down clearly in favour of home detention.

The appeal was allowed, and the sentence of two years' imprisonment was 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 was approved. In the event that such an address became available, the sentence of imprisonment would 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.

Orders