Komene v Police - [2019] NZHC 1651

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…

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: [2019] NZHC 1651
Decision Date: 17 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Javarn Komene, appealed against his sentence of three years and seven months' imprisonment for possession of methamphetamine for supply. The appeal arose from a decision by Judge Ronayne of the Auckland District Court. The central issue was whether the appellant should have been credited for his rehabilitative efforts, specifically his participation in the Alcohol and Other Drug Treatment (AODT) Court, which lasted approximately ten months.

The court had to determine whether the appellant's rehabilitative efforts warranted a discount in his sentence and whether the sentence was manifestly excessive given these efforts. The appellant argued that he should receive a discount for his participation in the AODT Court, citing cases where such discounts were granted. The respondent, however, argued that the appellant's ongoing offending, particularly the possession of methamphetamine, negated any credit for his rehabilitative efforts.

The court found that while credit for rehabilitative efforts could be given, the appellant was not entitled to any credit due to his poor attitude, ongoing offending, and lack of insight into his anti-social lifestyle and drug use. Additionally, the court identified an arithmetical error in the sentencing calculation. The total sentence should have been three years and four months, not three years and seven months, due to an incorrect conversion of months to years. Consequently, the court allowed the appeal, quashed the original sentence, and imposed a corrected sentence of three years and four months' imprisonment for the charge of possession of methamphetamine for supply.

Orders