Khan v Department of Corrections

[2018] NZHC 2897

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-328

[2018] NZHC 2897

BETWEEN

MOHAMMED KHAN

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	5 November 2018
Counsel:	P T Eastwood for Appellant H E Savage for Respondent
Judgment:	8 November 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 November 2018 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

KHAN v DEPARTMENT OF CORRECTIONS [2018] NZHC 2897 [8 November 2018]

Introduction

[1]                 Mr Khan appeals the refusal of Judge NJ Sainsbury to commute a sentence of imprisonment to one of home detention.1 Mr Khan’s principal argument is that Judge Sainsbury had previously granted Mr Khan leave to apply for home detention and so, once an address was found, the Judge had no discretion to refuse home detention at that address.

[2]                 In effect, this is an appeal against sentence. That is to say, Mr Khan is serving a short sentence of imprisonment and submits the District Court should have sentenced him to a term of home detention once he had a suitable address.

[3]I will allow Mr Khan’s appeal if:2

(a)for any reason, I find there is an error in the sentence imposed on conviction; and

(b)a different sentence should have been imposed.

[4]                 The main issue is whether Mr Khan’s offending was such that it was an error to sentence him to imprisonment and, instead, a different sentence should have been imposed.

Background

[5]                 Mr Khan came before Judge Sainsbury for sentence on 26 April 2018.3 The charges were three charges of driving while disqualified, one charge of possession of methamphetamine, one charge of possession of a methamphetamine pipe, one charge of breach of bail, two charges of breach of intensive supervision and one charge of receiving. These offences were committed in the period 15 June 2017 to 30 December 2017. The sentence imposed by Judge Sainsbury was one year and eight months’ imprisonment.

1      Department of Corrections v Khan [2018] NZDC 21615.

2      Criminal Procedure Act 2011, s 250.

3      Police v Khan [2018] NZDC 8201.

[6]                 Previously, on 23 January 2017, Mr Khan had been sentenced to two months’ imprisonment on one charge of possession of methamphetamine, one charge of possession of utensils for using methamphetamine, two charges of driving while disqualified, one charge of breach of community detention, and three charges of failing to answer bail.

[7]                 Further, Mr Khan had an extensive history of similar offending for which he had received sentences less than imprisonment.

Discussion

[8]                 I do not understand Mr Eastwood to submit that, against this background, a sentence of imprisonment was not available to the Judge. Mr Eastwood’s submissions go to the effect of Judge Sainsbury granting leave  to  apply  for home  detention.  Mr Eastwood’s contention is that Judge Sainsbury granted Mr Khan leave to apply for home detention and, once Mr Khan had a home detention address, Judge Sainsbury should have granted his application and commuted the sentence to home detention.

[9]                 I have no doubt that a sentence to a period of imprisonment was available to Judge Sainsbury and that, in the normal course of things, a sentence of home detention would have been inappropriate given Mr Khan’s record of offending. However, Judge Sainsbury recognised that underlying Mr Khan’s offending is his addiction to methamphetamine:

[13]      There appears to be a significant drug issue. At this point, although there is some realisation of how bad that is for him, he does not seem to be ready to do too much about it. I have proposed putting off this sentence to give him the opportunity to go into residential rehabilitation. In the end, he wants to be sentenced today. That is his right.

[14]      If at some point in the future he finally decides the time is right to sort out his drug use, all and good. I hope it comes soon because at the moment he is simply facing longer and longer periods in prison.

[10]              Judge Sainsbury was prepared to take a rehabilitative approach to sentencing Mr Khan. But only if Mr Khan could gain access to a residential rehabilitation programme:

[18]  Given the history of this matter and the factors discussed above, I do not consider it can be responsibly changed to home detention but I will grant leave to apply for home detention. I want to make clear the basis on which I am doing that. The only reason I am leaving open the possibility of substitution of sentence is if Mr Khan was going to go into residential rehabilitation. If he was genuine about that and a place becomes available I would certainly look at that positively, but that is up to Mr Khan to sort that out in due course.

[11]              This was a proper and balanced approach by Judge Sainsbury to a situation where drug addiction underlay offending and where the interests of the community, as well as those of Mr Khan, would be advanced by his rehabilitation. There is absolutely no doubt of the basis on which leave to apply for home detention was given.

[12]              Mr Khan’s  application for home detention came before Judge Sainsbury on  9 August 2018. But, instead of a residential rehabilitation address, Mr Khan wanted to obtain a sentence of home detention to his father’s address. Judge Sainsbury pointed out the reason why he had granted leave to apply for home detention, stated emphatically that Mr Khan’s application did not come within the purpose, and refused it. In effect, the Judge ruled that the father’s address was not a suitable address.

Decision

[13]              In my view, Judge Sainsbury was entitled to refuse Mr Khan’s application. I do not accept Mr Eastwood’s submission that once leave is granted, the provision of any address suitable for home detention takes all discretion away from the Court. It depends on what is meant by “suitable”, and in any event the Judge retains a discretion.

[14]Section 80I of the Sentencing Act 2002 provides:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date

[15]              In this case, Judge Sainsbury made clear that “suitable residence” meant a residence at which a suitable drug rehabilitation programme was run.

[16]Section 80K provides:

80K Application for cancellation of sentence of imprisonment and substitution of sentence of home detention

(1)An offender who is subject to a short-term sentence of imprisonment and who has leave to apply for cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80I may apply to the court at any time.

…

(4) On application under subsection (1), the court may, if satisfied of the matters in section 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention

…

[17]              The requirements of s 80A(2) include the Court being satisfied that the proposed home detention residence is suitable. Suitability is not limited to technical suitability in the sense that electronic monitoring can take place effectively if an offender is resident at the particular address. For example, commonly, an address may not be suitable because of the characteristics of its occupants, or its proximity to victims. In this case, Judge Sainsbury linked suitability to a residential drug rehabilitation programme.

[18]              Further, I agree with the view of Katz J in Gamble-Mackesy v Department of Corrections, where her Honour found significant Parliament’s use of the word “may” in s 80K(4):4

[30] Parliament has, however, provided the re-sentencing judge with a residual discretion to decline to substitute a sentence of home detention even where the requirements of s 80A(2) are met. It has done this by providing that, when considering an application to substitute a sentence of home detention, the court may, (if satisfied of the matters in s 80A(2)) cancel the

4      Gamble-Mackesy v Department of Corrections [2015] NZHC 1568.

sentence of imprisonment and substitute a sentence of home detention. If Parliament had intended that judges considering such applications should not have any discretion, provided the requirements of s 80A(2) were met, it would have used the word “must” instead of “may” in s 80K(4).

[19]It follows, that Mr Khan’s appeal must fail for the following reasons:

(a)His sentence to a short term of imprisonment is unexceptional given the charges upon which he was sentenced and his previous record of offending. Judge Sainsbury made no error that should be corrected on appeal.

(b)Mr Khan gained no right to a sentence of home detention because leave to apply for that sentence was granted by Judge Sainsbury. The leave was for a specific  purpose  of  rehabilitation.  The  address  which  Mr Khan later used to found his application for home detention was not a suitable address as specified by Judge Sainsbury because it was not part of a residential programme for rehabilitation. The Judge had a discretion whether to grant home detention and he had a good reason for declining to do so.

[20]The appeal is dismissed.

Brewer J