Heke v Police - [2015] NZHC 635

IN THE HIGH COURTOF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000010 [2015] NZHC 635

BETWEEN
REAGAN MANO JOHN HEKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 March 2015

Appearances:

J A Westgate for Appellant
R P Bates for Respondent

Judgment:

31 March 2015

ORAL JUDGMENT OF GENDALL J

Introduction and background

[1] This is an appeal against sentence.

[2] On 23 January 2015, Judge Phillips in the District Court sentenced the appellant on charges outlined below to a total of 200 hours’ community work and nine months’ supervision. In addition he imposed the special condition that the appellant undertake and complete alcohol and drug assessment and any counselling or treatment in relation to drug abuse as may be directed by the appellant’s probation
officer.1 This sentence of community work was imposed on the lead charge, being

possession of utensils for methamphetamine consumption, and was deemed by the

Judge to cover the appellant’s overall culpability. Judge Phillips imposed the

1 Police v Heke [2015] NZDC 3370 at [5].

HEKE v NEW ZEALAND POLICE [2015] NZHC 635 [31 March 2015]

sentence of supervision and special conditions to address what he said was the

appellant’s issues of addiction and abuse.

[3] Regarding the auxiliary offences, Judge Phillips imposed the following sentences, all to run concurrently:

(a) possession of methamphetamine: 60 hours’ community work;

(b) obstructing a police officer: 60 hours’ community work;

(c) possession of cannabis: 40 hours’ community work;

(d) possession of psilocybin: 40 hours’ community work; and

(e) possession of testosterone: 40 hours’ community work.

[4] The Judge also ordered the destruction of first, all drug instruments and paraphernalia seized during the search, and secondly, all drugs that were seized.

[5] After listing the maximum sentences for each offence and the facts giving rise to these charges, Judge Phillips stated:

[4] … You have an appalling history but it does not involve any other convictions under the Misuse of Drugs Act 1975. You have pleaded guilty immediately. I accept there would be a high public concern about a person having the variety of drugs and manufacturing equipment to use those drugs at a house in Dunedin. I take into account your attitude and what occurred during the course of the search and the wide-ranging drugs that were found in your possession.

[5] I consider overall your culpability can be dealt to by the imposition of 200 hours of community work and I impose that, as I said, on the head or lead charge, being possession of the pipe. However, in my view, there would also be drug addiction or abuse issues. …

[6] The appellant now appeals on the basis that the sentence imposed is manifestly excessive.

Jurisdiction

[7] Mr Heke is able to appeal the sentence imposed as of right.2 As first appeal Court, this Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.3 In a recent judgment the Court…

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.

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Details

Case: [2015] NZHC 635
Decision Date: 31 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Reagan Mano John Heke, appealed against the sentence imposed by the District Court. The appellant was sentenced to a total of 200 hours' community work and nine months' supervision, as well as a special condition requiring him to undertake alcohol and drug assessment and treatment. The appellant argued that the sentence was manifestly excessive, particularly the imposition of supervision given his claim of no drug addiction issues and lack of prior drug-related convictions. The respondent, New Zealand Police, submitted that the sentence was appropriate given the nature of the offending, the number of charges, and the appellant's actions during apprehension.

The court considered whether there was an error in the sentence imposed and whether a different sentence should be imposed. The court held that there was no intrinsic error capable of vitiating the sentencing decision and that the sentence was within the range that could be justified by accepted sentencing principles. The court further found that the District Court Judge had applied the totality principle correctly and that the sentence of supervision was appropriate for the purposes of rehabilitation and reintegration. Consequently, the court dismissed the appeal against sentence.

The court's reasoning was based on the seriousness and number of drug-related offences, the variety of drugs involved, and the appellant's actions when apprehended. The court held that the imposition of supervision was for the commendable purpose of assisting in the offender's rehabilitation and reintegration, and was the least restrictive outcome appropriate in the circumstances. The court also found that the sentence of community work on the lead charge covered the appellant's overall culpability, and the penalties for the lesser offences were appropriate.

Orders