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.  She then converted this to a sentence of eight months home detention.

[8]      The Judge did, however, follow that process when she came to re-sentence Mr Kahia on 23 June 2017.  On that date she selected a starting point of two years imprisonment on the lead charge of burglary.   She then applied an uplift of nine months to reflect Mr Kahia’s culpability on all other charges.   This led to an end starting point of two years nine months imprisonment.   The Judge then applied a discount of three months to reflect Mr Kahia’s young age.  He is currently 22 years of age.  She applied a further reduction of six months to reflect the time Mr Kahia had spent serving the sentence of home detention.  This produced an end sentence of two years imprisonment before taking into account guilty pleas.  The Judge applied a discount of six months to reflect that factor, resulting in the end sentence of one year six months imprisonment.

[9]      It is clear from the manner in which the Judge proceeded that she erred in two respects.   The first is that, having originally concluded that an end sentence of around 16 months imprisonment was appropriate, she subsequently re-sentenced Mr Kahia to 18 months imprisonment.  Secondly, the Judge applied a discount of six months in respect of the time spent on home detention before that sentence was cancelled.  Generally speaking, the fact that an offender has served a sentence of six months home detention will result in a credit of around 12 months being given if the offender is re-sentenced after the sentence of home detention is cancelled.   This reflects the fact that an offender must serve the whole of a sentence of home detention,  whereas  he  or  she  will  be  released  after  serving  one-half  of  a  short sentence of imprisonment.

[10]     That is not, however, the end of the matter.  Although an error has occurred, this Court will not interfere unless it is satisfied that a different sentence ought to be imposed.3   That will usually be the case where the error has produced a sentence that is manifestly excessive or otherwise wrong in  principle.   In order to  determine whether this is so in the present case, I propose to revisit the appropriateness of the sentences the Judge imposed on the various charges  when she re-sentenced Mr Kahia.   I put to one side the charges on which Mr Kahia was convicted and discharged.  He was not re-sentenced on those charges on 23 June 2017.

The sentence re-visited

Starting points

[11]     The lead charges are undoubtedly the charges of burglary.  The Judge only referred to the first of these in her sentencing remarks, but I propose to refer to both.

[12]     The first charge was laid as a result of an incident that occurred in the early hours of 2 March 2016.   On that date Mr Kahia and five other persons went to a general store in a remote rural location.   They gained entry to the premises by smashing a large plate glass window at the front of the store with tyre irons and car jacks.  They then climbed inside the premises and stole cash, alcohol and cigarette lighters.  Mr Kahia’s fingerprints were later identified on a shelf located at the point of entry inside the store.

[13]     The victim impact statement in respect of this offending indicates that it had a significant effect on the victim.  This was the eleventh time he had been burgled in

11 years. The present offending left him feeling desolate and despairing of his future in his chosen industry.

[14]     The second burglary charge was laid as a result of an incident that occurred late in the evening of 20 June 2016.   On that date Mr Kahia and a 15 year old associate smashed their way into a liquor warehouse in Paeroa.  They stole alcohol from the premises before being seen by a member of the public, who called the

police.  They then left the address in a stolen vehicle.  Mr Kahia was a passenger in

3      Criminal Procedure Act 2011, s 250(2).

the vehicle as it led the police on a lengthy chase at speed.  When the police spoke to Mr Kahia, he admitted being in the car but denied any knowledge of it being stolen and said he had no involvement in the burglary of the liquor store.

[15]     I consider that the circumstances of these two offences warranted a starting point in excess of that selected by the Judge.   Either of them would qualify for a starting point of around two years imprisonment.  A starting point of two and a half years imprisonment is the lowest starting point that could be selected in respect of both charges.

[16]     The first charge of assaulting a female was laid as a result of an incident that occurred on the morning of 13 September 2015.  On that date Mr Kahia was at home with his partner.  The summary of facts records that the atmosphere in the household was  tense,  and  that  a  verbal  argument  turned  into  a physical  altercation.   This resulted in Mr Kahia kicking his partner in her right thigh with his left foot.  The impact was sufficient to cause his partner’s leg to buckle and she fell to the ground. His partner then left the address and went to a neighbour’s house, where she telephoned the police.  When the police questioned him about his actions, Mr Kahia said he had kicked his partner because she “pissed him off”.

[17]     The second charge of male assaults female was laid as a result of an incident that occurred on the morning of 3 April 2016.   On that date Mr Kahia was at the address where his mother was residing.  He became involved in a verbal argument with her, and then grabbed her handbag and walked out of the room.   When his mother tried to retrieve her handbag, Mr Kahia pushed her away.   The physical struggle continued as Mr Kahia tried to leave the address with his mother’s handbag. Once outside, Mr Kahia pulled his mother from side to side, and eventually pulled her to the ground.  When she broke free from his grip and tried to follow him away from the address, he pushed her up against a fence with his forearm.   He then pressed his thumb into her throat, causing her pain and making it difficult for her to breathe.  Mr Kahia’s mother received swelling to her lower jaw and a soreness to her left ear as a result of this attack.

[18]     The police visited Mr Kahia’s address on the morning of 9 April 2016.  When they went into the address, they found Mr Kahia in a confused state and sweating profusely.   He told the police he had swallowed some methamphetamine and that they should look in a black case in his bedroom.  The police then searched the room and found two spectacles cases, each of which contained a glass methamphetamine pipe.   On one of the cases was a point bag containing .7 of a gram of a white powdery substance.

[19]     I consider each of the charges of male assaults female was serious in its own right.  Taken together, I consider they warranted a starting point of no less than 12 months imprisonment.  On the charges related to the methamphetamine and utensils, I consider that an uplift of three months is appropriate.

[20]     This means that on all charges I consider a starting point of at least three years nine months imprisonment was appropriate.   That starting point takes into account totality principles.  I now need to consider the extent to which, if at all, the sentence should be increased to reflect the new charge of breaching home detention and other relevant previous convictions.

Uplift for aggravating factors

[21]     Mr Kahia has two previous convictions for burglary.  These were entered in

2012 and 2013.  In addition, he has numerous convictions for breaching Court orders and sentences.  These include breaches of supervision, community work and home detention.  He also has convictions for wilful damage.

[22]     I consider an uplift of three months to be appropriate in respect of those charges and the new charge of breaching the sentence of home detention.   This produces an end starting point of four years imprisonment before taking into account mitigating factors.

Discount for mitigating factors

[23]     The Judge gave Mr Kahia a credit of three months to reflect his relatively young age.  At 22 years of age this might be regarded as generous, but I propose to

apply the same discount.   I then allow a further discount of 12 months to reflect Mr Kahia’s guilty pleas.  This produces an end sentence of two years nine months imprisonment before taking into account the time Mr Kahia has spent on home detention.  I provide a discount of 12 months to reflect that factor.  This produces an end sentence of one year nine months imprisonment.

Conclusion

[24]     This analysis demonstrates that, although the Judge may have erred in the way in which she approached the matter, the error did not produce an end sentence that was manifestly excessive.

Result

[25]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau