Kakau v Police HC Auckland CRI 2010-092-6402

[2010] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-092-6402

BETWEEN  TROY KAKAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 May 2010

Counsel:         J Delooze for Appellant

N Williams for Respondent

Judgment:      25 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Kakau appeals against refusal of bail pending sentence.

[2]      The charge was possession of cannabis (254 grams) for supply.   He was arrested on 29 April 2010, and pleaded guilty on 19 May.  He apparently complied with his bail conditions after arrest and tending the guilty plea.  He is for sentence on

3 June but an adjournment is likely so that a full pre-sentence report with annexures can be completed.

[3]      The Judge denied bail, taking the view that imprisonment is inevitable and Mr Kakau was likely to receive the maximum available sentence on a summarily laid charge;  that is, one year’s imprisonment.

[4]      Section 13 of the Bail Act applies;   the Court must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in a

particular case to do so, and the onus is on the defendant to show why bail should be

TROY KAKAU V NEW ZEALAND POLICE HC AK CRI 2010-092-6402 25 May 2010

granted.  If the defendant is “unlikely” to be sentenced to imprisonment, that must count against a remand in custody, but it is not decisive.

[5]      The appeal is advanced on the basis that the Judge erred by failing to give weight to the possibility of a non-custodial sentence or to his personal circumstances.

[6]      Ms Delooze argued that Mr Kakau could be sentenced to home detention. The cannabis was not purchased to finance his university studies, as the Judge may have thought, but rather for a group of friends, for their personal use.

[7]      He is aged 28.  He has three previous driving convictions but none for drugs.

[8]      Ms Delooze’s submissions proceed on the misapprehension that one year’s imprisonment is the maximum sentence for this offence.   It is not.   It is merely a jurisdictional  limit  on  the  sentence  available  when  the  offender  is  charged summarily.  The sentencing Judge should calculate the sentence by reference to the offence and the maximum sentence available, then check whether the resulting sentence exceeds the summary maximum.  If it does, the proper course is normally to decline jurisdiction and remand the offender for sentence in the High Court.   It follows that a sentence of one year’s imprisonment in such a case is entirely feasible, notwithstanding that he pleaded guilty.

[9]      I accept that the possibility of home detention or some other community- based sentence cannot be ruled out, but that is not the same thing as saying that it is unlikely that he will be sentenced to imprisonment.  The quantity was substantial and its value was around $3,500.   A starting point of approximately two years imprisonment is likely.  Although the least restrictive end-sentence must be adopted, it is well established that offending of this kind calls for denunciation and deterrence.

[10]     Ms Delooze also submits that insufficient weight was attached to Mr Kakau’s personal circumstances.  He has been studying engineering at Unitec for 18 months and has apparently been doing well.  He has mid-semester exams pending within two weeks.  Should he remain in custody it is likely that he will not be able to study for or sit those exams.

[11]     Finally, there is a letter indicating that he is beginning to address his cannabis use.

[12]     I have decided that the appeal should be allowed.   The dominant reason is that he will be able to continue with his studies should he be sentenced to home or community detention, but a remand in custody pending sentence would ensure that he could not sit the mid-semester exams, presumably resulting in him failing this semester’s courses even if he receives a community-based sentence.    In circumstances where a non-custodial sentence is possible and there is no reason to suppose he will not comply with bail conditions, the better course is to allow him to continue with his studies until such time as he is sentenced.  Of course this is not to be taken as an indication that a non-custodial sentence is likely.

[13]     Accordingly, the appeal is allowed.  He is granted bail pending sentence in the District Court at Manukau on 3 June.

[14]     He is to reside at 37 Bollard Avenue, Mount Albert and is subjected to a curfew between 9pm and 6am.   He is to present himself at the door if the police arrive.

Miller J

Solicitors:

Public Defence Service, Manukau for Appellant

Crown Solicitor’s Office, Auckland for Respondent