Kaukasi v Police - [2017] NZHC 2396

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000317 [2017] NZHC 2396

BETWEEN
PHILLIP KAUKASI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 September 2017

Appearances:

R Mansfield for Appellant
N Fletcher for Respondent

Judgment:

6 September 2017

JUDGMENT OF VENNING J

Solicitors: Kayes Fletcher Walker, Manukau
Copy to: R Mansfield, Auckland

KAUKASI v NEW ZEALAND POLICE [2017] NZHC 2396 [6 September 2017]

[1] The appellant Phillip Kaukasi pleaded guilty to two charges – possession of methamphetamine for supply and possession of utensils. Judge A M Wharepouri sentenced him to two years’ imprisonment on the possession for supply charge and one month concurrent on the utensils charge.1 Mr Kaukasi appeals against the sentence.

Background

[2] On 7 August 2016 the Police located a Puma bag which had been left on the roof of a Nissan car, registration HJE551 in Weymouth. In attempts to locate the identification of the owner of the bag the Police identified items of interest about the car including crystals which were believed to be methamphetamine and some scales. When the bag was searched further a forklift ID for Mr Kaukasi was discovered, along with 11.45 grams of methamphetamine, a pipe and scales. Following inquiries the Police then executed a search at the appellant’s home in Manurewa. There they located a further 0.59 grams of methamphetamine, another pipe, scales, and $1,300 in cash. When spoken to the defendant admitted the methamphetamine and methamphetamine pipe in the house and the car were his.

[3] Mr Kaukasi was subsequently charged. On 11 April 2017 the Judge gave Mr Kaukasi a sentence indication.2 The Judge indicated he would adopt a starting point of three years’ imprisonment and discount that by 25 per cent to reflect guilty pleas. That would leave an end sentence of two years, three months’ imprisonment. The Judge then went on to say:

[2] There is scope there for additional discounting to reflect other mitigating circumstances that could theoretically get him to two years’ [sentence] … but I would make no promises about the prospects of that. Much would depend on a positive pre-sentence report together with other additional information about the efforts Mr Kaukasi has gone to to rehabilitate himself beyond that of the eight week Getting Started Group.

[4] Mr Kaukasi has previous convictions although none for drug offending. Significantly he was convicted of manslaughter in September 2002, the offending

1 New Zealand Police v Kaukasi [2017] NZDC 20716.
2 New Zealand Police v Kaukasi DC Manukau CRI-2016-092-010492, 11 April 2017.

having occurred in September 2001 when he would have been aged 16. At that time

he was sentenced to 12 years’ imprisonment.

[5] The pre-sentence report confirms that Mr Kaukasi is now 32 years old and that he resides together with his partner and three children. He was working for a company in the warehousing area. The report-writer noted that following his release Mr Kaukasi said he found it hard. It took him some time to get used to living in the outside…

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.

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Details

Case: [2017] NZHC 2396
Decision Date: 6 September 2017

CaseChat Overview and Summary

Phillip Kaukasi appealed against his two-year imprisonment sentence imposed for possession of methamphetamine for supply and possession of utensils. The respondent, New Zealand Police, opposed the appeal. The High Court of New Zealand considered the appeal and the legal issues involved. The court focused on whether the sentencing judge erred in determining that home detention was inappropriate given the seriousness of the offending, particularly in light of the sentence indication provided at an earlier hearing.

The court found that the sentencing judge had made an error by not giving proper consideration to all relevant sentencing purposes and principles, particularly the need to assist the appellant’s continued rehabilitation and re-integration into the community. The court was influenced by the appellant's lengthy incarceration at a young age, his lack of reoffending since release, and his current employment. The court concluded that in the particular circumstances of the case, home detention was the most appropriate sentence.

The court quashed the two-year imprisonment sentence and imposed a sentence of 11 months’ home detention. The appellant was to serve the sentence at 11 Carn Place, Weymouth, and was subject to specific conditions including restrictions on alcohol and drug use, attendance at any recommended programs, and compliance with the supervising probation officer and field officer.

Orders