Kiu v Police

[2014] NZHC 819

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2014-483-00004 [2014] NZHC 819

BETWEEN

RANIEL KIU

Plaintiff

AND

NEW ZEALAND POLICE Defendant

Hearing:	15 April 2014
Appearances:	D M Goodlet for appellant L C Rowe for respondent
Judgment:	16 April 2014

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 14 January 2014 Judge Matheson sentenced Mr Kiu to a total of five months and two weeks’ imprisonment on charges of driving whilst disqualified (third or subsequent) and shoplifting.1    The following special release conditions were imposed for six months from the expiry date:

(a)       that Mr Kiu was to attend any departmental programme as directed;

(b)      that Mr Kiu was to attend any tikanga Māori programme as directed;

and

(c)       that  Mr Kiu  was,  if  assessed  to  be  suitable,  to  complete  any psychological counselling and attend any other programme that his

probation officer directs.

1      Police v Kiu DC Wanganui CRI-2013-083-001724, 14 January 2014.

KIU v POLICE [2014] NZHC 819 [16 April 2014]

[2]      Mr Kiu has served his sentence of imprisonment.  This appeal is against his post-release conditions.

Facts

[3]      Based on the police summary of facts, to which Mr Kiu pleaded guilty, the facts in this matter are that on 30 October 2013 Mr Kiu entered a supermarket in Whanganui.  He went about the store collecting items and placing them in a trolley. He then went to the checkout and purchased the groceries.  Mr Kiu then left the store with three packets of meat products still in his shopping trolley which he had not paid for.

[4]      After leaving the supermarket, Mr Kiu  was  followed to a Subaru station wagon by employees of the supermarket.  He put the grocery items in the back of the car and got into the driver’s seat.  He then drove away from the car park.  Mr Kiu had been disqualified from driving for the period from 25 September 2013 until

24 March 2014.   The police were informed of those actions of Mr Kiu.   When spoken to subsequently by the police Mr Kiu admitted stealing three packets of meat products but denied driving whilst disqualified.  Mr Kiu entered guilty pleas to both charges in November 2013.

Approach on appeal

[5]      This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011.  Accordingly, the Court must allow the appeal if satisfied that “for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed”.2   In any other case, the Court is required to dismiss the appeal.3   The words “an error in the sentence imposed” are a codification of existing

case law dealing with appeals from summary proceedings.4

2      Criminal Procedure Act 2011, s 250(2).

3      Section 250(3).

4      Bruce Robertson (ed) Adams on Criminal Law - Procedure (online looseleaf ed, Brookers) at

[CPA250.01].

[6]      Section 250 of the Criminal Procedure Act thus reiterates the approach taken by the Courts under the Summary Proceedings Act 1957, as articulated in decisions such as Yorston v Police, where the Court said:5

(a)     There must be an error vitiating the lower Court’s original sentencing discretion; the appeal must proceed on an “error principle”.

(b)     To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)     It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

Case on appeal

[7]      For Mr Kiu, Ms Goodlet submitted that Mr Kiu did not believe the conditions were necessary or appropriate, given the nature of his offending.   Moreover as he was disqualified from driving and resided in Aramaho, some two or three kilometres from  central Whanganui,  he would  face transport  difficulties  in  attending to  be assessed by the Probation Service.   There was inadequate public transport in Whanganui and he was concerned as to the timing and the cost of attending the assessment.

[8]      For the police, Mr Rowe’s submission was that the special conditions were completely appropriate given Mr Kiu’s history of offending and assessed high risk of reoffending.  All he was required to do at this stage was to attend and be assessed. His concerns were the practical matters such as transport which could be dealt with by the Probation Service in the normal way.

Analysis

[9]      The  post-release  conditions  imposed  by  the  Judge  formed  an  important element of his sentencing decision.

[10]     In that decision, the Judge reviewed Mr Kiu’s pre-sentence report.   Mr Kiu was reported as having no empathy for the victims of his offending, giving the

5      Yorston  v  Police  HC Auckland  CRI-2010-404-164, 14  September  2010  at  [13]  (footnotes omitted).

impression he was proud of his criminal behaviour and minimising his criminal history.  That history, as the Judge noted, includes several driving whilst suspended or disqualified offences, 17 previous dishonesty offences as well as drug and breach convictions, a robbery and nuisance matters spanning the period of the last eight years.   The report noted that Mr Kiu had numerous opportunities to address his antisocial behaviour, but had failed to do so.

[11]     The Judge then considered the possibility of home detention.   The Judge recognised that, to date, Mr Kiu’s frequent sentences of imprisonment had had little impact on him. The Judge observed that an analysis of Mr Kiu’s history “does reveal a number of breaches of post-release conditions and it seems that the Probation Service is at a loss as to how to motivate you to engage in programmes”.6

[12]     Having determined a sentence of imprisonment of less than two years, the Judge then considered the possibility of home detention.  Importantly for this appeal, he observed:7

Given that result, I need to consider home detention as an option.   I have some sympathy for Mr Ross’s comments that home detention would be a harder task than a short term of imprisonment; however, I am not persuaded that that is appropriate.  I have already noted the concerns expressed by the Probation Service and I adopt those concerns.   I think that, with regret, I need to continue on with the journey that you have for yourself entered on. My only hope is there will come a point where you realise, and I am hoping, hearing your counsel’s submissions, that it is now, that you will take hold of the post-release conditions that I am going to impose and get on with your life.

[13]     On that basis, the post-release conditions the Judge imposed cannot in any way be seen as being in error.  Rather, in the circumstances, they were completely appropriate.   Those conditions go no further, in the first instance, than requiring attendance upon direction by a probation officer for an assessment of suitability. Any concerns Mr Kiu may have about his ability to comply or take part in the

programme can be considered at that time by the Probation Service.

6      Police v Kiu, above n 1, at [4].

7 At [12].

[14]     Given Mr Kiu’s offending history and his attitudes to his offending it would, in my assessment, be quite inappropriate to accede to Mr Kiu’s challenge to those post-release conditions.

[15]     Mr Kiu’s appeal is dismissed.

“Clifford J”

Solicitors:

D M Goodlet, Whanganui.

The Crown Solicitor, Whanganui.