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 world.  Some of the methamphetamine was for personal use, but some was supplied to others.  Mr Kaukasi told the report-writer he sold methamphetamine to family and friends to pay rent and bills.   He regretted his actions, although in the view of the report-writer, much of the remorse was directed at his predicament. However, Mr Kaukasi had made a number of positive steps and as a result of that the recommendation in the pre-sentence report was home detention.   In addition Mr Kaukasi had completed a number of courses offered by the Family Start programme, CADS and Emerge Aotearoa.  While he had exited from the Emerge Aotearoa course counsel submitted the level of disengagement was as a result of his work commitments and the loose structure of the provider’s course.   Prior to that Mr Kaukasi had maintained efforts with the other agencies.

[6]      In  imposing the sentence the Judge extended  a further discount  of three months to bring the end sentence down to two years’ imprisonment.  However, he was not prepared to commute the sentence to one of home detention.  He said:

[11]      The issue then becomes whether that sentence should be commuted to a sentence like home detention.  That issue is resolved by considering the relevant  sentencing principles and considering the overall seriousness of your offending.   In my view your offending is just too serious that a community-based sentence should be substituted for a term of imprisonment.

[7]      Mr Kaukasi appeals.  In support of the appeal Mr Mansfield’s submission is that the sentencing Judge erred in determining the sentence of home detention was inappropriate on the ground the offending was too serious, particularly given the indication the Judge had previously given Mr Kaukasi at the sentence indication hearing.

[8]      Counsel  for  the  respondent  has  acknowledged  today  the  force  of  the submissions made on the part of the appellant.  However, ultimately it is a decision for the Court.

[9]      The Judge’s sentence was the exercise of a discretion and usually appellate courts defer on the issue of whether or not imprisonment should be imposed as opposed to home detention.3

[10]     It is for the appellant to satisfy this Court that there has been an error in the sentence imposed and that a different sentence should be imposed.4

[11]     At first reading the sentence of two years’ imprisonment for drug offending of this nature would normally be beyond challenge.  However, there is a particular feature of this case which supports the appeal as argued for by Mr Mansfield and as properly acknowledged by Mr Fletcher for the Crown.

[12]     Having  arrived  at  an  end  sentence  of  two  years’  imprisonment  home detention was a proper consideration for the Judge.  While there is no presumption whether imprisonment or home detention is to be preferred5 the Court is required to carry out a consideration of all relevant ss 7 and 8 purposes and principles.6    An assessment that focuses only on one purpose, such as deterrence or seriousness of the offending, for example, to the exclusion of others will amount to an error of law.7

[13]     In  the present  case it appears from the Judge’s  sentencing notes that  he rejected  the  possibility  of  home  detention  as  he  considered  the  nature  of  the offending to be too serious.  He was no doubt influenced by s 6(4) of the Misuse of Drugs Act.  But that consideration is only one of the considerations for the Judge. While the Judge did refer to taking all relevant matters into consideration it is with

respect not apparent that that was the case.

3      Te Aho v R [2013] NZCA 47 at [30].

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      R v Vhavha [2009] NZCA 588 at [13]

6      James v R [2010] NZCA 206.

7      Fairbrother v R [2013] NZCA 340, at [30] referring to Manikpersadh v R [2011] NZCA 452 at [17].

[14]     The position is exacerbated by the Judge’s remarks at the sentence indication. While the Judge did say he made no promises he did refer to the possibility of eligibility for an electronically monitored sentence following that with the comment that “much would depend on a positive pre-sentence report”. As I read the notes as a whole that was a distinct reference to the possibility of both a reduction in sentence and home detention being dependent on a positive pre-sentence report.

[15]     The appellant Mr Kaukasi responded to the sentence indication to the extent that he received a generally positive pre-sentence report which recommended home detention.   Further, he had attended courses to address his drug use.   He could reasonably have expected in the circumstances that if the Judge was going to impose a sentence other than home detention he would give further reasons for doing so giving the possibility held out in the sentence indication.   The seriousness of the offending had not changed from the date the sentence indication had been given to the date of sentence.  If the offending was too serious to allow home detention that should not have been held out as a possibility.

[16]  In this case the appellant’s personal circumstances required careful consideration.  Given his lengthy incarceration at the age of 17 for serious offending committed at 16 and the fact that he has not offended since release the Judge was required to consider in particular the need to assist his continued rehabilitation and re-integration into the community, particularly bearing in mind he had employment at the time.  Further, the least restrictive outcome appropriate in the circumstances in this case supported the imposition of home detention.

Result

[17]     For the reasons given above I am satisfied that the Judge fell into error in the sentencing process by focusing on the serious nature of the offending and the consequent need for deterrence without giving proper consideration to the other relevant considerations particular to this case.

[18]     Looking   at   the   matter   afresh   I   am   satisfied   that   in   the   particular circumstances of the case, the appropriate sentence was one of home detention.

[19]     Given that Mr Kaukasi has been in prison since 14 September 2017 for two weeks or so, the appropriate sentence in my view is a home detention sentence for 11 months.

Result

[20]     The  appeal  is  allowed.    The  sentence  of  imprisonment  of  two  years  is quashed.  In its place Mr Kaukasi is sentenced to 11 months’ home detention.  He is to serve that sentence of home detention at 11 Carn Place, Weymouth.  He is, when released from prison, to travel directly to 11 Carn Place and remain at that address to meet  the  supervising  probation  officer  and  field  officer.    He  is  not  to  possess, consume or use any alcohol or drugs other than drugs prescribed.  He is to attend an assessment for any other programme that may be directed by his probation officer and he is to attend and complete any counselling treatment or other such programme as  recommended  by the  assessment  as  directed  by  and  to  the  satisfaction  of  a

probation officer.

Venning J