Kahia v Police - [2017] NZHC 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-221 [2017] NZHC 2018

BETWEEN
ALEX KAHIA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 August 2017

Appearances:

D Nairn for Appellant
C Howard for Respondent

Judgment:

22 August 2017

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

KAHIA v NEW ZEALAND POLICE [2017] NZHC 2018 [22 August 2017]

[1] Mr Kahia pleaded guilty in the District Court to no less than 12 charges. These included two charges of burglary, two charges of male assaults female, one charge of being in possession of a methamphetamine pipe, one charge of being in possession of methamphetamine, one charge of unlawfully getting into a motor vehicle, four charges of failing to answer District Court bail and one charge of breaching a sentence of community work.

[2] On 8 December 2016, following a sentence indication hearing on 6 October

2016, Judge Malosi sentenced Mr Kahia to eight months home detention on all charges other than that of breaching community work and failing to answer his bail.1
On those charges he was convicted and discharged.

[3] Mr Kahia subsequently breached the sentence of home detention by testing positive for cannabis and acting in an intimidating manner towards the residents of the drug rehabilitation institution at which he was serving his sentence. This led to the Judge cancelling the sentence of home detention on 9 June 2017.

[4] On 23 June 2017 the Judge re-sentenced Mr Kahia on all charges to which he had been sentenced to home detention.2 On this occasion she sentenced Mr Kahia to an effective sentence of 18 months imprisonment. He now appeals against sentence on the basis that the Judge erred in principle in the manner in which she sentenced him, and that she imposed a manifestly excessive sentence as a result.

Procedural background

[5] In order to understand the issues that the appeal raises, it is necessary to look a little more closely into the procedural background of this matter.

[6] It is clear from the Judge’s remarks at the sentence indication hearing that she was anxious to avoid imposing a sentence of imprisonment on Mr Kahia. She indicated that the most beneficial outcome for both him and the community would be
a sentence of home detention to be served at a residential drug and alcohol treatment

1 New Zealand Police v Kahia [2016] NZDC 25053.
2 Department of Corrections v Kahia [2017] NZDC 13460.

facility. A placement at such a facility was then found, and this led to the Judge imposing the sentence of eight months home detention on 8 December 2016.

[7] Unfortunately, however, the Judge did not follow the conventional route of selecting a starting point and then applying uplifts and discounts as would usually be done. For that reason it is not possible to discern the starting points selected in respect of the various charges from the Judge’s sentencing notes. It appears however that she must have reached an end sentence of around 16 months imprisonment.…

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: [2017] NZHC 2018
Decision Date: 22 August 2017

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an appeal by Alex Kahia against his sentence imposed by the District Court. Mr. Kahia had pleaded guilty to various charges, including burglary, assault, and drug-related offenses. Following a sentence indication hearing, Judge Malosi sentenced Mr. Kahia to eight months of home detention, but later re-sentenced him to 18 months imprisonment after he breached the terms of his home detention. The court was tasked with determining whether the District Court Judge erred in principle when she re-sentenced Mr. Kahia and whether the sentence was manifestly excessive.

The court found that the Judge erred in her approach to sentencing, as she did not follow the conventional route of selecting a starting point and applying uplifts and discounts. However, the error did not produce an end sentence that was manifestly excessive. The court revisited the appropriateness of the sentence imposed on the various charges when the Judge re-sentenced Mr. Kahia and found that the starting point selected by the Judge was too low. The court concluded that an end sentence of one year and nine months imprisonment was appropriate, taking into account mitigating factors.

In conclusion, the appeal against sentence was dismissed. The District Court Judge's sentence was deemed appropriate, and no manifestly excessive sentence was imposed. The court found that the error in the sentencing process did not result in an outcome that required correction.

Orders