Kadir v Police

[2020] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000075

[2020] NZHC 1108

BETWEEN

NABIL KADIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 May 2020
Appearances:	H Redwood for Appellant S Murphy for Respondent
Judgment:	26 May 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 26 May 2020 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Auckland Counsel:

H Redwood, Barrister, Auckland

KADIR v NEW ZEALAND POLICE [2020] NZHC 1108 [26 May 2020]

[1]                 Following a Judge-alone trial in the District Court Judge B A Gibson found Mr Kadir guilty on a charge of burgling a residential address. In addition, Mr Kadir pleaded guilty to charges of receiving stolen property, driving whilst forbidden to do so and being in possession of cannabis and a methamphetamine pipe. He committed those offences whilst on bail on the burglary charge.

[2]                 On 12 February 2020 Judge Gibson sentenced Mr Kadir to 25 months imprisonment on all charges.1 Mr Kadir appeals against sentence on the basis that errors in the formulation of the sentence led to an end sentence that was manifestly excessive.

The offending

[3]                 Mr Kadir went to a residential property on the night of 13 June 2018. He entered the property through a bathroom window and managed to move some items before one of the occupants became aware of his presence  and raised the alarm.    Mr Kadir fled from the scene without taking any property. He was subsequently arrested in mid-July 2018 and released on bail.

[4]                 The receiving charge related to a stolen credit card found in Mr Kadir’s possession when he was arrested on an unrelated matter on 30 March 2019. The credit card had been taken in a burglary of residential premises approximately a week earlier. He was also found in possession of a small amount of cannabis and a methamphetamine pipe.

[5]                 The final charge related to an incident on 21 May 2019 when Mr Kadir was found driving a motor vehicle the registration of which had expired. He was unable to produce his driver’s licence and told the police he had been forbidden to drive. Subsequent enquiries confirmed he had earlier been forbidden to drive until he obtained a driver’s licence.

1      New Zealand Police v Kadir [2020] NZDC 4732.

The sentence

[6]                 The Judge took a starting point of 19 months imprisonment on the lead charge of burglary. He increased that by three months to reflect the charges to which Mr Kadir had pleaded guilty. From the resulting sentence of 22 months imprisonment the Judge applied uplifts of three and two months respectively to reflect Mr Kadir’s previous convictions for burglary and the fact that the offending on 30 March and 21 May 2019 had occurred whilst Mr Kadir was on bail on the burglary charge.

[7]                 The Judge applied a discount of one month to reflect difficulties Mr Kadir has faced since his arrival in New Zealand from Ethiopia at seven years of age. He then applied a discount of a further month to reflect the guilty pleas entered on the charges other than the burglary charge. This produced the end sentence of 25 months imprisonment.

Decision

Starting point on burglary charge

[8]                 On Mr Kadir’s behalf Mr Redwood contends the starting point of 19 months imprisonment the Judge adopted on the burglary charge was too high. He has referred me to other cases that he says involve more serious offending than that in the present case.2 The starting points adopted in those cases has been around 18 months imprisonment. Mr Redwood contends a starting point of 15 months imprisonment was appropriate to reflect the burglary charge in the present case.

[9]                 As the Judge correctly observed, however, the starting point for the sentence to be imposed on a  charge  of  burglary of  residential  premises  will  be  between 18 months and two years  six  months  imprisonment.3  The other cases  to  which  Ms Redwood has referred demonstrate that a starting point of around 18 months imprisonment will be appropriate for a burglary broadly of the type Mr Kadir committed. Any attempt to demonstrate the starting point in the present case was too high by making fine factual distinctions between this case and others like it is an

2      Wilson v R [2012] NZHC 65; Brown v Police [2017] NZHC 1846; Bates v R [2016] NZCA 456.

3      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

exercise having little utility. Given the available range I do not see how it can seriously be argued that the starting point of 19 months imprisonment was too high.

Uplift for other offences

[10]              Mr Redwood contends the uplift of three months the Judge applied to reflect the remaining offences was too great. He points out that the charge of driving whilst forbidden was punishable only by fine. In addition, the proviso to s 7(2)(b) of the Misuse of Drugs Act 1975 directs the Court not to impose a custodial sentence on charges relating solely to Class C controlled drugs unless, by reason of the offender’s convictions or of any exceptional circumstances relating to the offence or the offender, a custodial sentence is appropriate.

[11]              Mr Redwood points out that the Court of Appeal has observed that the proviso to s 7(2)(b) requires a sentencing Judge to step back and assess the significance of an offender’s cannabis offending.4 It has also observed that a sentence of imprisonment will not necessarily be appropriate merely because the offender is being sentenced to imprisonment on other charges.

[12]              In the present case  I consider  these issues are  of academic interest  only.  Mr Kadir has two previous convictions for being in possession of cannabis. He was sentenced on those charges in 2015 and 2017. The fact that Mr Kadir was again found in possession of cannabis in March 2019 means a modest uplift was appropriate.

[13]              I accept the Crown’s submission that, although it may be regarded as stern, the uplift applied to reflect the remaining charges was not outside the available range.

Uplift for previous convictions

[14]              Mr Redwood contends the uplift of three months to reflect previous convictions for burglary was too high. That submission needs to be measured against the fact that it represents an uplift on the burglary charge of approximately 15 per cent. Mr Kadir has three previous convictions for burglary and received a sentence of two years imprisonment on those and other charges in May 2017. This Court would not

4      Murray v R [2015] NZCA 538 at [14].

normally regard an uplift for recent previous convictions for offending of a similar nature to be excessive unless it is significantly greater than the margin applied by the Judge in the present case. I therefore do not consider the uplift to reflect previous convictions was excessive.

Uplift for offences committed whilst on bail

[15]              Mr Redwood contends the uplift of two months to reflect this factor was excessive. I accept this submission because it constituted an uplift of approximately 66 per cent on the sentence imposed on the charges to which it applied.  It  means  Mr Kadir received a total sentence of five months imprisonment on those charges and I consider this was too high. An uplift of no more than one month would have been appropriate to reflect the fact that the offending occurred whilst Mr Kadir was on bail.

Was the end sentence of 25 months imprisonment manifestly excessive?

[16]              Reduction of the sentence by one month would bring the sentence down to 26 months imprisonment before taking into account mitigating factors. Mr Redwood does not quarrel with the discounts the Judge applied to reflect these. They would reduce the end sentence to one of 24 months imprisonment.

[17]              Ordinarily this Court would not interfere with a sentence of around two years imprisonment where it is just one month longer than it ought to have been. Such a sentence would not normally be regarded as manifestly excessive and any reduction would rightly be regarded as tinkering. In the present case, however, a reduction of one month produces two significant practical consequences. First, it means Mr Kadir would be automatically released after serving one-half of the sentence rather than having to apply for parole after serving one-third of the sentence. Secondly, it reduces the sentence to the point where home detention can be considered. Given those consequences I consider appellate intervention is justified. Ms Murphy did not argue to the contrary on the Crown’s behalf.

Result

[18]              The appeal against sentence is allowed. The sentence of 25 months imprisonment imposed on the burglary charge is quashed and a sentence of 24 months imprisonment is imposed in its place. All other concurrent sentences remain intact.

[19]              At the time of sentencing Mr Kadir did not have an address at which he could serve a sentence of home detention. That remains the position. There is therefore no utility in granting Mr Kadir leave under s 80I of the Sentencing Act 2002 to apply for the sentence to be converted to one of home detention should a suitable address become available.

Lang J