Kahui v R
[2013] NZCA 124
•29 April 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA190/2013 [2013] NZCA 124 |
| BETWEEN BRADLEY MATENGA KAHUI |
| AND THE QUEEN |
| Hearing: 16 April 2013 |
| Court: Harrison, Allan and Clifford JJ |
| Appearances: A J Bailey for appellant |
| Judgment: 29 April 2013 at 10 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Allan J)
Introduction
In this slightly unusual appeal, Mr Kahui asks this Court to quash his conviction and discharge on a charge of assault,[1] and substitute a short sentence of imprisonment. The appeal is aimed at securing the benefit of a credit for time served while on remand. In order to explain the basis upon which the appeal is brought, it is necessary to outline Mr Kahui’s offending history in some detail.
Background
[1] R v Kahui DC Christchurch CRI-2012-009-6914, 26 March 2013.
Along with some associates, Mr Kahui took a hot water cylinder from a private property, and was subsequently charged with burglary. A little later he sent a series of threatening texts to a woman who lived in an adjacent house and who had witnessed the burglary. That resulted in a charge of attempting to pervert the course of justice. Mr Kahui was released on bail by the District Court on those charges.
On 17 February 2012, while still on bail, Mr Kahui committed the assault to which the present appeal relates. He was charged and remanded in custody. At a later date (we do not know precisely when) he entered a plea of not guilty.
On 20 July 2012, Mr Kahui came before Judge Farish in the Christchurch District Court for sentence on the charges of burglary and attempting to pervert the course of justice. The Judge adopted a starting point of 25 months imprisonment for the offending, but ultimately sentenced Mr Kahui to eight months home detention with judicial monitoring.[2] At that point he was granted bail on the outstanding assault charge.
[2] R v Kahui DC Christchurch CRI-2012-009-7464, 20 July 2012.
Mr Kahui’s home detention conditions prohibited him from consuming alcohol or illicit drugs and directed that he undertake the Te Waka Tapu programme for alcohol and drug abuse. Judge Farish told him that she was “… willing to take a chance on you Mr Kahui”.[3]
[3] At [14].
The Judge expressly warned him that if he breached the terms of his home detention sentence, he would be sentenced to imprisonment.
Regrettably, Mr Kahui failed to take advantage of the opportunity extended to him by the Judge. On 3 October 2012, while on home detention, he obstructed the police. He was charged and rebailed.
On 26 December 2012, a search warrant was executed at Mr Kahui’s address. There the police discovered that he had been cultivating cannabis at the rear of his property. That was particularly disappointing, given that he had recently undertaken the Waka Tapu course. Again, he was charged and rebailed.
A further search warrant was executed at Mr Kahui’s address on 6 February 2013, when the police noticed a very strong smell of cannabis. He was found in possession of a glass bottle or pipe, which he admitted using to smoke cannabis.
District Court sentencing
On 26 March 2013, Judge Farish sentenced Mr Kahui on the summary charges laid during the period of home detention. The sentencing hearing took place following the resolution of certain assault charges part way through the jury trial of those charges. The Judge discharged Mr Kahui on two charges, one of assault with intent to injure, and another count of assault. At the same time he had pleaded guilty on arraignment to being a party to the assault which took place on 17 February 2012.[4] The Judge noted that Mr Kahui had spent five months in custody on remand on that assault charge, and said “that is very important when I look at the penalty today”.[5]
[4] See [3] above.
[5] R v Kahui, above n 1, at [2].
The Judge recorded that she had sentenced Mr Kahui to eight months home detention with special post release conditions on 20 July 2012, and that she had at that time told him that if he stepped outside the home detention sentence in any way, he would be sentenced to imprisonment.
Having discussed in turn each of the offences committed while serving his sentence of home detention, the Judge indicated that she proposed to impose sentences of imprisonment on those charges, but not in relation to the assault. She said that the sentences of imprisonment were “…designed to really reinforce the fact that you have re-offended whilst you were subject to home detention which, in my view, is a serious matter”.[6]
[6] At [13].
On the obstruction charge, the Judge imposed a sentence of one months imprisonment; on the cannabis cultivation charge, two months imprisonment; and on the charge of possession of utensils, one months imprisonment. All of these sentences were cumulative, so the total was four months imprisonment. Then she increased the overall sentence by one month, because all of the offending occurred while Mr Kahui was on bail and subject to home detention conditions. A credit of one month was allowed for the guilty pleas, so that the ultimate sentence was four months imprisonment.
As to the assault charge, the Judge said:[7]
In relation to the assault charge, given the amount of time that you spent in custody awaiting a release on bail, you are convicted and discharged on that matter. So that is five months’ imprisonment.
The appellant’s argument
[7] At [20].
The short point advanced for Mr Kahui is that the sentencing pattern adopted by Judge Farish has resulted in the entire loss of the credit for time served to which he would ordinarily be entitled.[8] Because he was simply convicted and discharged on the assault charge, he had no sentence of imprisonment against which to credit the time already served while on custodial remand. Had he been sentenced to a short cumulative term of imprisonment on that charge, along with the other cumulative sentences of imprisonment imposed by Judge Farish on 26 March 2013, all of the cumulative sentences would have formed a notional single sentence as defined in the Parole Act 2002. The result would then have been that any period of pre-sentence detention that related to any of the offences for which cumulative sentences were imposed would be deducted from the notional single sentence.[9]
[8] Parole Act 2002, s 90(1).
[9] Parole Act, s 90(3).
For example, had Mr Kahui been sentenced to (say) two months imprisonment on the assault charge, cumulative upon the sentences imposed on the other charges for which he was sentenced on 26 March, the whole of the five month period spent in pre-sentence custody could be credited against the total cumulative sentences of six months imprisonment, with the result that he would be entitled to immediate release.[10] But because he is not entitled to any credit for time served, he must serve one-half of the cumulative sentence of four months imprisonment imposed upon him on the remaining charges for which he was sentenced by Judge Farish on 26 March.
[10]Section 86(1) of the Parole Act provides that the release date of a short term sentence (including a short term notional single sentence) is the date on which the offender who is subject to the sentence has served half of it.
Against that background, Mr Bailey submits that the Judge’s decision to convict and discharge Mr Kahui on the assault charge was wrong in principle. He contends that in all the circumstances of this case it was not open to the Judge to do other than impose a short term sentence of imprisonment of up to six months. A sentence of that order, combined with the other cumulative sentences imposed by Judge Farish, would have entitled Mr Kahui to immediate release on the date upon which sentence was imposed. As matters stand, however, he must actually serve one half of the total of the cumulative sentences actually imposed; that is, a term of two months imprisonment.
Discussion
Although unusual, Mr Bailey’s argument is by no means novel. A similar appeal came before this Court recently in Te Aho v R.[11]
[11] Te Aho v R [2013] NZCA 47.
There, Mr Te Aho had lost a credit of 113 days served on pre-sentence remand. His counsel conceded that the end sentences imposed in the District Court were unchallengeable on the merits. However, he argued that this Court should intervene by varying the sentence to produce an outcome which would enable the period of 113 days to be credited against the end sentence.
The sentencing variation proposals advanced on appeal in Te Aho were regarded by this Court as artificial, in that they were significantly different from those actually warranted for the offending, and were in effect, tailored around the days spent on remand, in contravention of s 82 of the Sentencing Act 2002.
The appeal was accordingly dismissed, an outcome which the Court considered to be unremarkable. Those who spend time on pre-sentence custodial remand are not entitled as of right to a credit for the time so spent. For example, a person who has been remanded in custody and then acquitted is unable to claim any credit at all. Similarly, where an offender is not convicted of the offence that led to the remand, but is convicted of another different offence, there will be no credit.[12]
[12] R v Goldberg CA10/05, 4 May 2006 at [61]–[69]; Goldberg v R [2006] NZSC 58.
On the present appeal, Mr Bailey acknowledges what was said in Te Aho but argues that it is readily distinguishable. He points out that it was conceded in Te Aho that the sentences imposed were within the available range; the challenge was based entirely upon the claim to an entitlement for time-served credit. He argues that this case is different. He maintains that Judge Farish erred in convicting and discharging Mr Kahui because there was no proper basis on which to impose anything other than a short sentence of imprisonment.
We do not agree. Under s 108 of the Sentencing Act, an offender may be convicted and discharged if the Court considers that a conviction alone is sufficient penalty; the Court has a broad discretion to consider all relevant circumstances of the offence and offender.[13]
[13] M v Police (1990) 5 CRNZ 597 (HC) at 598.
Although we have been furnished with only very limited detail of the circumstances of the assault, we are told that it consisted of a single blow to the head, which rendered the victim unconscious for a short period. Mr Kahui was not the perpetrator. An associate who struck the blow was sentenced to two months imprisonment. Mr Kahui was charged as a party. We have not been provided with details of the factual context in which his liability as a party arose, but we consider that to convict and discharge a secondary party in circumstances where the principal offender received only two months imprisonment cannot be said to be wrong in principle.
It is well established that, provided the sentence imposed is open to the sentencing Judge, this Court will not review the manner in which the Judge chooses to structure the sentence or sentences.[14] That principle is of particular application where, as here, the sentencing Judge had a close and detailed knowledge of the offender, having in effect case managed the various charges against him, having imposed the earlier sentence of home detention, and having presided over the part-heard trial which culminated in Mr Kahui’s guilty plea to the assault charge. He was being sentenced on a range of charges. The Judge plainly gave careful consideration to the pattern of the sentences imposed.
[14]R v Williams CA91/00, 31 May 2000; R v Barker CA57/01, 30 July 2001; and R v Xie [2007] 2 NZLR 240 (CA).
We consider that the Judge was entitled to adopt the course she did. To have imposed a short term sentence of imprisonment on the assault charge simply in order to qualify Mr Kahui for a time-served credit would have been to act in contravention of s 82 of the Sentencing Act.
Judge Farish may or may not have had in mind the parole consequences of the sentences she imposed. We simply do not know. We can say however that she was entitled to impose sentences that would require Mr Kahui to spend further time in prison, given his defiance of his home detention conditions on multiple occasions.
Result
For the forgoing reasons, the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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