Komene v Police
[2019] NZHC 1651
•17 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000115
[2019] NZHC 1651
BETWEEN JAVARN KOMENE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 July 2019 Appearances:
J F O’Halloran for the Appellant K Fitzgibbon for the Respondent
Judgment:
17 July 2019
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 17 July 2019 at 2:30 pm
Registrar/Deputy Registrar Date:
Solicitors: Public Defence Service (J-F O’Halloran), Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland
KOMENE v NZ POLICE [2019] NZHC 1651 [17 July 2019]
[1] On 28 February 2019, Javarn Komene was sentenced on two charges of burglary, one charge of intentional damage and one charge of possession of methamphetamine for supply in the Auckland District Court by Judge R G Ronayne. He had pleaded guilty to all charges. On the lead charge of possession of methamphetamine for supply, Mr Komene was sentenced to three years and seven months’ imprisonment. He now appeals against sentence on the basis that it is manifestly excessive. The primary issue on appeal is whether Mr Komene should have been given credit for his rehabilitative efforts, in particular, his 10 month participation in the Alcohol and Other Drug Treatment (AODT) Court.
Facts
[2] The first burglary occurred on 31 May 2017. On that date, the occupier of the house left his home in the morning locked and secured. At about 12.30 pm the appellant and an unidentified associate walked on to the property and knocked on the front door. He and his associate then walked around the house and smashed a bedroom window at the rear of the property. The appellant reached through, opened the window and entered the house. The appellant and his associate conducted a search of the house and removed a large number of electronic items, jewellery and cash. The property taken was valued at $8,482. The uninsured loss to the victim was $600.
[3] The second burglary occurred on 26 June 2017. Again, the occupier of the house left his home secured. The appellant and an associate entered the property and used a crowbar to force entry into the house. Once inside, the appellant and his associate rummaged through multiple rooms, placing items of property into backpacks. The police arrived. They saw the appellant leaving the property with a backpack. The appellant fled on foot, was chased through multiple properties and eventually apprehended.
[4] The charge of wilful damage arose on 19 November 2017, when the appellant was arrested for breaching bail and he was held in a room at the Manukau Police Station Custody Suite. The appellant tampered with a sprinkler in his cell, which was activated. As a result, the entire cell was flooded. The Fire Service had to be called out.
[5] The last charge to which the appellant had pleaded guilty was possession of methamphetamine for supply on 7 August 2018. On that date, the appellant was a passenger in a motor vehicle which was involved in a police pursuit. The pursuit led the police across the wider Auckland area. At around 10.00 pm that evening the vehicle came to a stop and the appellant was arrested. A subsequent search located
7.63 grams of methamphetamine in the appellant’s possession. Also located in the appellant’s possession was about $8,000 in cash, a set of electronic scales and a large number of unused plastic point bags.
[6] After entering pleas of guilty to both charges of burglary on 5 October 2017, the appellant was accepted into the AODT Court on 16 November 2017, before being exited from that Court initially on 23 August 2018 and then finally on 25 October 2018.
District Court decision
[7] After reviewing the summaries of fact in relation to the four charges and the appellant’s procedural history, the Judge referred to the appellant’s list of previous convictions before citing from a pre-sentence report. The Judge noted the opinion of the report writer that the appellant’s lifestyle and substance issues had become more entrenched and that he was described as being at high risk of further offending and high risk of harm to others, with a low motivation to change.
[8] The Judge dealt first with the two burglaries and said that if he was dealing with those separately he would adopt a starting point of 20 months’ imprisonment, which he would uplift by six months because of the appellant’s previous convictions. The Judge then referred to the charge of possession of methamphetamine for supply and expressed the view that it was a clear inference that sales had taken place because of the $8,000 cash found on the appellant. The Judge took a starting point for that offending of two years and six months’ imprisonment, which he reduced by six months to two years’ imprisonment on account of totality. Adding the term of two years to the earlier term of two years and six months, he came to a total term of imprisonment of 54 months or four years and six months. From that, the Judge said that the appellant was entitled to 20 per cent discount for his guilty pleas, which brought the term of
54 months’ imprisonment down to one of 43 months or three years and seven months’ imprisonment. The Judge, accordingly, sentenced the appellant to three years and seven months’ imprisonment on the charge of possession of methamphetamine for supply and one year and four months’ imprisonment on each of the burglary charges. On the wilful damage charge, the appellant was convicted and discharged.
Approach on appeal
[9] Section 250(2) of the Criminal Procedure Act 2011 provides that an appeal against sentence must be allowed if there has been an error in the sentence imposed and a different sentence should have been imposed. According to the Court of Appeal in Tutakangahau v R,1 an appellant must show that an error occurred in sentencing and that this error resulted in a sentence that was outside the range that could properly be justified by accepted sentencing principles.
[10] However, in exceptional cases, it may nonetheless be necessary to correct a sentence that is within the range (for example, where there is an arithmetical error).2
Appellant’s submissions
[11] On 16 November 2017, the appellant was accepted into the AODT Court. At the time he had pleaded guilty to the two burglary charges. When he was charged with wilful damage on 20 November 2017, he promptly pleaded guilty to that as well. On 7 August 2018, following ten months’ participation in the AODT Court, the appellant was charged with possession of methamphetamine for supply and was remanded in custody. On 23 August 2018, the appellant was initially exited from the AODT Court, but following a hearing on 6 September 2018 to reconsider his participation, the AODT Court allowed the appellant to remain.
[12] On 25 October 2018, at a hearing in the AODT Court, the appellant was finally exited due to a number of other charges being laid in the Waitakere District Court. The Waitakere District Court charges are not part of this sentence.
1 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
2 At [36].
[13] The appellant submitted that he should have received a discount for his efforts at rehabilitation between 16 November 2017 and 25 October 2018. In that time, he appeared in the AODT Court every two or three weeks, with written reports provided on his progress. He was tested for alcohol and drug use two to three times a week and recorded eight months and seven days abstinence during this period. He also attended 69 Narcotics Anonymous or Alcohol Anonymous meetings and completed a number of programmes through the Court.
[14] The appellant submitted that a discount for his rehabilitative efforts should have been given. He submitted the Court of Appeal has held that a discount is available where rehabilitative efforts have been made. Discounts of up to 40 per cent have been afforded for offenders who have completed intensive rehabilitation programmes and made real and significant changes as a result. Although he was ultimately unsuccessful in completing his rehabilitative programmes, the appellant submitted that he made significant efforts over a substantial period of time towards genuine rehabilitation and this demonstrated he had a capacity for rehabilitation.
[15] Accordingly, the sentence imposed was manifestly excessive as the Judge did not give a discount for the appellant’s rehabilitative efforts.
Respondent’s submissions
[16] The respondent submitted that a discount for rehabilitative efforts was not appropriate in the circumstances. The respondent acknowledged that Judges are entitled to grant a discount for rehabilitative efforts carried out through the AODT Court, even if the defendant was exited from the programme early. However, any such discount must be weighed against the other relevant principles and purposes of sentencing. Denunciation and deterrence generally take precedence over personal circumstances when sentencing for commercial drug offending.
[17] Judge Ronayne was well aware of the appellant’s rehabilitative efforts in the AODT Court. He also considered the appellant’s letter, certificate of completion and pre-sentence report. The Judge concluded that the appellant’s letter was “situational” and commented that he read it with “some considerable scepticism”.
[18] The respondent submitted that the Judge was not required to afford a discount for rehabilitation in the circumstances. Nine months into his AODT Court programme, the appellant was found in possession of 7.63 grams of methamphetamine, $8,000 cash, electronic scales and a large number of unused plastic point bags. Any discount the appellant may have earnt in the AODT Court was negated by his decision to sell methamphetamine. This is different to cases where a defendant made genuine rehabilitative efforts and then relapsed by beginning to use drugs again to his or her own detriment. The respondent submits there was no error in sentencing and the end sentence was not manifestly excessive.
Discussion
[19] The primary issue in this appeal is whether the appellant should have been given a specific credit for his rehabilitative efforts, in particular, his 10 month participation in the AODT Court. A secondary issue relates to the Judge’s calculation of the final sentence.
[20] While there is no doubt that credit and substantial credit can be given for rehabilitative efforts, the availability and extent of any credit depends upon individual circumstances. If the appellant had successfully completed the AODT programme, he would have received substantial credit. If he had relapsed or absconded without completing the programme, then he may still have received some credit, depending on the extent of his continuing rehabilitative efforts.
[21] Here, however, and as the AODT Judge herself noted when the appellant was first exited from the AODT Court, the appellant had been charged with possession of methamphetamine for supply, which was a type of offending which undermined the AODT Court as a whole. The key issue for her was that the offending was not committed under the influence of alcohol or drugs, nor in pursuit of it.
[22] Although the appellant was briefly readmitted to the AODT Court for a month or so, he was again exited when he was charged with five charges of using a firearm against a law enforcement officer, two charges of aggravated robbery, one charge of being an accessory after the fact to aggravated robbery, one charge of assisting escape,
one charge of failing to stop, one charge of reckless driving, one charge of unlawful possession of a firearm, and one charge of doing a dangerous act with intent to injure.
[23] The pre-sentence report dated 5 February 2019, assessed the appellant as a high risk of further offending and a high risk of harm towards others, with low motivation to change. The appellant told the report writer he was using as much methamphetamine as he could on a daily basis.
[24] In those circumstances, the appellant is not entitled to any credit for his failed rehabilitative efforts, largely because of his poor present attitude and continuing offending. The appellant did not present to the report writer with any particular insight into his anti-social lifestyle and drug use.
[25] The secondary issue has more merit. The original sentencing notes, the Judge’s handwritten notation on the charging document and the appellant’s criminal history all record a sentence of three years and seven months’ imprisonment on the charge of possessing methamphetamine for supply. In fact, as the Judge himself realised when later reviewing his sentencing notes, he made an arithmetical error in calculating the final sentence. He had settled on a starting point for the burglaries of 26 months. However, when adding that sentence to the two years he had settled on for the possession of methamphetamine for supply, he inadvertently converted 26 months to two years and six months (30 months), when it should have been two years and two months (26 months). The end sentence should, therefore, have been three years and four months’ imprisonment, being 26 months (burglaries) + 24 months (drug for supply), equalling 50 months, less 10 months (20 per cent credit for guilty plea), equalling 40 months or three years and four months’ imprisonment.
[26] As noted by the Court of Appeal in Tutakangahau, whilst an appellate court will not ordinarily intervene where the sentence is within range that can properly be justified, in exceptional circumstances it may, nonetheless, be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error). The appeal is therefore allowed. The sentence of three years and seven months’ imprisonment on the charge of possession of methamphetamine for supply is quashed and replaced by a sentence of three years and four months’ imprisonment.
Woolford J