Kahika v Police

[2012] NZHC 185

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-000004 [2012] NZHC 185

BETWEEN  FORD JUNIOR KAHIKA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 February 2012

Counsel:         A Malik for the Appellant

C R Walker for the Respondent

Judgment:      9 February 2012

JUDGMENT OF ELLIS J

This judgment was delivered by me on 9 February 2012 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Crown Solicitors PO Box 609, Napier 4140

Counsel:            A Malik, PO Box 8576, Havelock North 4157

KAHIKA V POLICE HC NAP CRI-2012-441-000004 [9 February 2012]

[1]      On 9 January 2012 Mr Kahika pleaded to one count of burglary.   He was sentenced to 6 months imprisonment by Judge Rea on 1 February and now appeals that decision.

[2]        The offending to which the sentence relates  arises from  an incident  on

12 December  2011  when  Mr  Kahika  entered  a  property  at  1050  Kauri  Street intending to remove some copper spouting to sell for scrap metal.   He had been informed that the property was vacant and that he could make money in this way. His 17 year old co-offender, Mr Pekapo, happened to be walking past the property at the relevant time.  Mr Kahika whistled at him to gain his attention and Mr Pekepo agreed to help him remove some of the spouting in exchange for some of the profit.

[3]      After a neighbour alerted police, a police dog unit found Mr Pekepo up a ladder cutting copper from the house.  Mr Kahika fled but was soon located hiding in an outdoor toilet belonging to a neighbouring property.

[4]      Mr Pekapo also pleaded guilty to a burglary charge and was sentenced by Judge Rea the day before Mr Kahika.   The sentence imposed, after taking into account Mr Pekapo’s guilty plea, his youth and his absence of relevant previous convictions, was one of 200 hours community detention.   Like Mr Kahika he was also required to pay reparation of $355.50.   Judge Rea’s sentencing notes do not expressly record what starting point was taken by him in arriving at this sentence. Rather, he said:

Mr Pekepo, you have not been in the adult court before.  You have been in the  Youth  Court  and  this  is  the  first  burglary  and  I  know  your  mate Mr Kahika he is for sentence tomorrow but he is in a different category to you altogether.

[5]      In sentencing Mr Kahika the next day Judge Rea took a starting point of eight months imprisonment from which was deducted the full (25 per cent) discount for his guilty plea.   He recorded Mr Kahika’s 36 previous convictions, including convictions for receiving stolen goods, unlawfully converting a vehicle, aggravated robbery and shoplifting.   His Honour noted that Mr Kahika had a history of non- compliance with court orders including release conditions and protection orders.  At

the time of his guilty plea, Mr Kahika was in fact incarcerated as a result of breaches of his curfew.  Outstanding fines of $1,345 were remitted as part of his sentence.

[6]      As regards the relationship between Mr Kahika’s sentence and that he had

imposed on Mr Pekapo, Judge Rea said:

Now being involved in this offending is really the only thing that you have in common with Mr Pekepo.  You are 26, he is 17.  He appeared in front of me yesterday and, apart from some very minor matters, this was the only time he had been involved with the Court.   That, unfortunately, is not the case with you.  You have dishonesty convictions for receiving, unlawfully converting a vehicle and aggravated robbery as well as shoplifting.   You have constantly appeared before the Court.  You are unable to carry out any sentences you have a choice about and that is reflected in your convictions for  breaching  community  work,  failing  to  answer bail  and  contravening protection orders.

[7]      Mr Kahika now appeals against the sentence imposed.  But no issue is taken with the starting point or the end sentence per se.  Rather the appeal is brought solely on the ground that the disparity in the starting points adopted by Judge Rea in each case  cannot  be  justified  by reference  to  the  nature  of  the  respective  offending. Mr Malik said that in arriving at the two different starting points Judge Rea had wrongly relied on the differences between the two men rather than differences in the nature of their offending.   He submitted that this ran contrary to the decision in

Glover v R,[1] where the Court of Appeal had said (at [6]) that

Unless there be a difference in culpability, or the initial sentence is plainly out of range, then the subsequent Judge is not free to take a different starting point.

[1] Glover v R [2011] NZCA 249.

[8]      Glover also involved burglary charges involving co-offenders.  However one offender had pleaded  guilty whereas the other had gone to trial.   The different sentencing judges had adopted starting points of 18 month and 30 months.    The Court of Appeal expressly recorded that the respective roles played by each of the offenders in the burglaries was not known and the disparity could not therefore be supported.

[9]      In  the present  case,  however,  there are a number of impediments to  the

success of Mr Kahika’s appeal.

[10]     First, Mr Kahika and  Mr Pekapo  were sentenced  by the same judge  on consecutive days.   Although his sentencing notes in relation to Mr Pekapo in particular are brief it is quite clear that he was very conscious of the relationship between the two sentences.

[11]     Secondly, it is not in my view possible to determine the starting point adopted by Judge Rea in Mr Pekapo’s case.  It is clear from his notes (which, I record, only became available to Mr Malik after the filing of the appeal) that he approached the matter in the round as busy District Court Judges must often do. Although Mr Malik argued that Judge Rea “must have” adopted a lower starting point of around two months imprisonment in Mr Pekapo’s case, there is no objective basis for that submission; there is no precise mathematical formula by which a potential sentence of imprisonment is converted into a community based one.  Nor is it possible (for example) to speculate about the size of any discount given for Mr Pekapo’s age, which may have been significant.  Accordingly it is simply not possible in my view fairly to subject the end sentence of 200 hours community service to any form of backwards engineering.

[12]     Thirdly  (and  in  any  event)  there  is  in  this  case  a  qualitative  difference between Mr Kahika’s offending and Mr Pekapo’s.   Mr Kahika’s was planned and premeditated and Mr Pekapo’s was not.  Although I accept Mr Malik’s submission that Mr Pekapo was not coerced into offending by Mr Kahika, it is also fair to infer that  Mr  Pekapo  would  not  have  committed  the  offence  at  all  were  it  not  for Mr Kahika.    While  Mr  Malik  valiantly  argued  that  such  differences  were  not significant, I cannot accept that submission.   In that respect the circumstances of the present case are in my view much closer to those considered by the Court of Appeal

in Marsh v R [2] than those in Glover.

[2] Marsh v R [2010] NZCA 445.

[13]     For the reasons just given I do not consider that it can be said that there is any unfair  disparity  between  the  sentence  imposed  on  Mr  Kahika  and  the  sentence

imposed on Mr Pekapo. The appeal must be dismissed accordingly.

Rebecca Ellis J