Kahika v Police - [2014] NZHC 3326

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 Respondent

Judgment:

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…

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.

Keep reading for free

Create a free CaseChat account to read Kahika v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 3326
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand Rotorua Registry, Stephen Hemi Kahika sought to appeal his conviction and sentence imposed by the District Court at Whakatane. The appellant pleaded guilty to charges of possession of cannabis for supply, cultivation of cannabis and possession of a firearm without a licence. The sentencing judge imposed a term of imprisonment of one year and six months. The appellant argues that the sentence imposed was too harsh and that the sentencing judge erred by not providing a specific credit for remorse and by imposing imprisonment, rather than a sentence of home detention.

The court considered whether the Judge erred by not providing a specific credit for remorse, and whether the Judge erred in not imposing a sentence of home detention. The court held that it was not an appropriate case for a specific credit for remorse and that the sentencing judge was entitled to make the decision to impose imprisonment.

The court held that the sentencing judge was better placed to assess the impact of addictions and available programmes and that the evidence before the Judge was finely balanced. The court concluded that it could not properly depart from the decision of the experienced District Court Judge to impose imprisonment.

The appeal was dismissed.

Orders