Kahika v Police
[2014] NZHC 3326
•18 December 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2014-463-79 [2014] NZHC 3326
BETWEEN STEPHEN HEMI KAHIKA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 December 2014 Counsel:
C Andersen for Appellant
N G Belton for RespondentJudgment:
18 December 2014
JUDGMENT OF HEATH J
This judgment was delivered by me on 18 December 2014 at 3.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Tauranga
Counsel:C Andersen, Whakatane
KAHIKA v R [2014] NZHC 3326 [18 December 2014]
Introduction
[1] On 10 September 2014, Mr Kahika was sentenced by Judge Harding, in the District Court at Whakatane, on drug and firearms charges.1 He had previously pleaded guilty to charges of possession of cannabis for supply, cultivation of cannabis and possession of a firearm without a licence. The Judge sentenced Mr Kahika to a term of imprisonment of one year six months.
[2] Mr Kahika appeals against the sentence imposed. Ms Andersen, on his behalf, submits that the Judge erred by not providing a specific credit for remorse, and also by imposing imprisonment, rather than a sentence of home detention.
Sentencing in the District Court
[3] Judge Harding began by explaining the circumstances in which Mr Kahika had been charged. The Police had executed a search warrant at Mr Kahika’s partner’s address and had found $120 in notes, some more money in a wallet and a total of 21 ounces of cannabis, together with a 303 rifle with ammunition in it. Cannabis head material was found hanging up to dry. Mr Kahika acknowledged that the cannabis was his, and that he had grown it. He also admitted to possession of the
firearm. In sentencing, the Judge accepted that this money was not Mr Kahika’s.2
[4] For the purpose of this appeal, I set out what was said by the Judge on the issues that are raised on appeal:3
[4] The probation report says that the problems which you have centre around alcohol and drugs, and that you regard the cannabis as, “A quick way to get bucks”. The report concerningly suggests that, although you are somebody with the prospects of employment, you have done nothing to get rid of the cannabis addiction which will stop you from working and that while you continue to use drugs your risk of re-offending is said to be high. The recommendation is a sentence of imprisonment, allowing you to abstain from alcohol and drugs and dry out.
[5] As far as electronically monitoring is concerned you are regarded as not a suitable candidate for that, because of the severity and ongoing nature of your addiction and the temptation to use illicit substances while on an electronically monitored sentence is considered too high for you to resist.
1 Police v Kahika DC Whakatane CRI-2015-087-836, 10 September 2014 (Judge Harding).
2 Ibid, at para [7].
3 Ibid, at paras [4]–[6].
[6] Ms Andersen take some exception to some of those comments and points out that the offending was not at your address, rather than somebody else’s and that you have arguably been able to refrain from drug use during a prior sentence of home detention. The Probation Service conclude that you still have a substantial addiction to both alcohol and drugs and no employment, meaning that the prospects of you getting into further strife, if on home detention, would be high.
[5] Judge Harding took as his starting point a sentence of two years imprisonment, consistent with the guideline authority, R v Terewi.4 That was reduced by 25% to reflect the early guilty pleas. That resulted in an end sentence of 18 months imprisonment. Leave to apply for substitution of a sentence of home detention was denied.5 Special conditions of release, to apply for six months after sentence expiry date, were imposed to address Mr Kahika’s addiction.
Analysis
[6] Ms Andersen’s first point was that the Judge had erred in failing to provide a specific credit for remorse. I do not consider this was an appropriate case for such a credit. As the Supreme Court made clear, in Hessell v R, it is necessary to identify something more than a guilty plea for a credit to be given under the specific statutory provision that identifies “remorse” as a mitigating factor.6 None existed, in this case.
[7] The real issue is whether the Judge erred in not imposing a sentence of home detention.7
[8] The relevant parts of the pre-sentence report state:
Drug Use
Mr Kahika claims the longest periods he has been drug free have either been on remand or on a community based sentence of Home Detention. Mr Kahika is willing to comply with a further similar sentence and states he has been working on reducing his substance use in preparation. His addiction to drugs has been over a number of years so this is not going to be an easy feat when the temptation remains around him.
…
4 R v Terewi [1999] 3 NZLR 62 (CA).
5 See para [14] below.
6 Hessell v R [2011] 1 NZLR 607 (SC) at para [64] and Sentencing Act 2002, s 9(2)(f).
7 Police v Kahika DC Whakatane CRI-2015-087-836, 10 September 2014, at paras [4], [5] and
[6], set out at para [4] above.
Electronic Monitoring Considerations
Mr Kahika has signed the Offender Agreement indicating his consent to abide by the Special and standard conditions of electronic monitoring including any curfew times imposed. The proposed address is assessed as suitable and is technically feasible for such a sentence. Mr Kahika proposes to reside as the sole occupant.
Police have been contacted and their concerns are centred around being in close vicinity to where the offending occurred at his partner’s home and domestic violence issues the couple have had in the past. Nonetheless, [the police] have no opposition to Mr Kahika serving an electronically [monitored] sentence at the proposed address and other than the close proximity they have identified no safety or welfare concerns.
Mr Kahika is assessed as an unsuitable candidate for electronic monitoring. Although he has successfully completed a previous sentence of home detention, the circumstances on this occasion are different in that he has a substantial addiction to both alcohol and drugs and no employment. It is doubtful that he will be able to comply with the strict condition to abstain from substance use whilst on such a sentence and to put him in this position is setting him up to fail.
(Emphasis added)
[9] The Sentencing Act 2002 (the Act) sets up a hierarchy of sentences. Imprisonment is the most restrictive sentence,8 with home detention the next most severe.9 Home detention is a hybrid sentence, neither custodial nor community based.10 A sentencing Court is enjoined, by s 8(g) of the Act, to “impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the
hierarchy of sentences …”.
[10] On occasion, fine questions of judgment will be involved about whether it is necessary for a sentence of imprisonment to be imposed to mark particular offending.11 That judgment will be informed by the Legislature’s requirement that a sentencing Judge “must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.12 However, in some cases the judgment will be so fine that an appellate Court will need to give significant weight to the view of a sentencing Judge
from the jurisdiction in which cases of the type in issue are most frequently tried.
8 Sentencing Act 2002, s 10A(2)(f).
9 Ibid, s 10A(2)(e).
10 R v D(CA253/2008) [2008] NZCA 254 at para [65].
11 Sentencing Act 2002, s 16(2).
12 Ibid, s 16(1).
[11] In R v D(CA253/2008),13 the Court of Appeal put that principle in these terms:14
[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
I would add to that summary that District Court Judges are generally better placed to assess the impact of addictions and available programmes than those who sit on appeal.
[12] In the present case, the Judge appears to have placed greater weight on the assessment of the probation officer that “because of the severity and ongoing nature of [Mr Kahika’s] addiction and the temptation to use illicit substances while on an electronically monitored sentence”.15
[13] The evidence before the Judge was finely balanced. Both views had some support from the pre-sentence report. Although the report referred to “claims” that Mr Kahika had been abstinent during the period of a prior sentence of home detention,16 the correctness or otherwise of the “claims” could, I would have thought, been readily checked from probation records of the time.
[14] If I had jurisdiction, I would have been minded to set aside the Judge’s decision to refuse leave to apply to substitute the sentence of home detention for imprisonment, so that the disputed issue could be addressed. However, leave to
apply in those circumstances can only be granted if no suitable residence had been
13 R v D(CA253/2008) [2008] NZCA 254.
14 Ibid, at para [66].
15 Police v Kahika DC Whakatane CRI-2014-087-836, 10 September 2014, at para [5], set out at para [4] above.
16 See para [8] above, under “Drug Use”.
available at the time the sentence of imprisonment was imposed.17 There is no jurisdiction to grant leave to apply where a suitable residence exists but the offender is not regarded as a suitable candidate for home detention. Once that latter finding is made, unless there is a basis on which the discretion not to commute the sentence of imprisonment to home detention can be challenged, the sentencer’s decision must stand.18
[15] Not without some hesitation, I have concluded that this is a case in which I cannot properly depart from the decision of the experienced District Court Judge to impose imprisonment. On the basis of the information before him, it was a decision that he was entitled to make.19
Result
[16] For those reasons, the appeal is dismissed.
P R Heath J
Delivered at 3pm on 18 December 2014
17 Sentencing Act 2002, s 80I(1)(b).
18 As to the discretionary nature of the decision to commute imprisonment to home detention see, for example, Doolan v R [2011] NZCA 542 at paras [36]–[39].
19 R v D(CA253/2008) [2008] NZCA 254 at para [66], set out at para [11] above.
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