Kuka v Police HC Tauranga CRI 2009-470-40

[2010] NZHC 193

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

CRI-2009-470-000040

BETWEEN  WILLIAM KUKA

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 March 2010

Appearances:  A Schulze on instructions from P Mabey QC for Appellant

T Bayley for Crown

Judgment:      4 March 2010

ORAL JUDGMENT OF VENNING J

Solicitors:            Crown Solicitor, Tauranga

Lance & Lawson, Rotorua

Copy to:             P Mabey QC, Tauranga

KUKA V NEW ZEALAND POLICE HC TAU CRI-2009-470-000040  4 March 2010

[1]      On   27   November   2009   the   appellant   Mr   Kuka   was   sentenced   to imprisonment for 15 months by Judge Moore in the District Court at Tauranga.  He appeals against that sentence.

[2]      The sentence was imposed on charges of possession of cannabis for supply and selling cannabis, both offences to which Mr Kuka had pleaded guilty.

[3]      The Judge constructed the sentence of 15 months, that being his assessment

as the appropriate term, by imposing a sentence of 12 months on the possession for supply charge and three months cumulative on the selling charge.

[4]      The summary of facts revealed that on 12 June 2009 Mr Kuka’s property was searched. The police found 10 tinnies of cannabis  plant, one gram each together with  an ounce bag of 28 grams. In addition $800 cash was  found  in  the  same location  together  with  two  smaller  snaplock  bags  containing  leaf. In  a  separate location in a shed on the property the police found two supermarket bags containing

130 and 183 grams of cannabis head.   When spoken to, Mr Kuka admitted he had sold cannabis to friends and workmates for $20 a tinnie to supplement his income.

He explained that the $800 cash was the proceeds of those sales.

[5]      For   sentencing  purposes   the   police   acknowledged   the   appellant   was   a personal user of cannabis and that the cannabis, the subject of the supply charge was limited to the ounce bag and the tinnies located in his room.

[6]      The appellant has previous convictions from November 1999 for cultivation and possession of cannabis, cannabis seeds and utensils.

[7]      In the course of his sentencing notes the Judge seems to have overlooked that the police had accepted, given the appellant’s personal use of cannabis, that only the tinnies and the ounce bag of 28 grams was relied on to support the supply charge. The Judge also, whilst being aware that he was limited to imposing a sentence of 12 months  in  relation  to  each  of  the  charges,  ultimately constructed  a  sentence  of  15 months by applying the sentences cumulatively.

[8]      The appeal is advanced on the basis that:

·the  sentencing  exercised  proceeded  on  a  factually  incorrect  basis, namely  as   to   the   extent   of   the   cannabis   supporting  the   supply conviction;

·    the Judge was wrong to impose a cumulative sentence;  and

·the   Judge   did   not   give   proper   consideration   to   whether   home detention  was  appropriate  and  overlooked  recent  authorities  on  that issue.

[9]      The Crown acknowledge that it appears the Judge did proceed on an incorrect factual  basis  for  sentencing,  given  the  Judge’s  reference  to  “making  up  your  own tinnies because there was over 300 grams of cannabis found” and that would have led to his conclusion that the offending was dealing in a “significant way”.

[10]     The Crown also properly concede that having regard to s 84 of the Sentencing  Act,  the  sentences  imposed  in  this  case  should  have  been  concurrent sentences given the type and ongoing nature of the offending rather than cumulative

as was the approach adopted by the Judge. I agree with the Crown’s concession on both points.

[11]     If a term of imprisonment was to be imposed in this case it would only have been concurrent and could not have been more than 12 months’ imprisonment, given the Judge accepted jurisdiction to sentence.

[12]     The  real  issue  on  this  appeal,  however,  is  whether  home  detention  was  the appropriate sentence.   While this was a case of drug offending from the appellant’s home,  that  is  not  an  absolute  bar  to  a  sentence  of  home  detention  being  seen  as appropriate.  It is only one factor, albeit that it can be a particularly material factor.

[13]     Counsel for the appellant in his written submissions has referred to the decisions of R v Hill[1]  and R v Iosefa.[2]   While home detention was imposed in Hill, in that case Mr Hill had taken quite extensive steps towards his rehabilitation and it was his  personal  circumstances  in  that  case  that  led  the  Court  to  consider  that  home detention was appropriate for that offending.

[1] R v Hill [2008] NZCA 41.

[2] R v Iosefa [2008] NZCA 453.

[14]     Each case must depend on its own circumstances and facts.

[15]     In the appellant’s case there are a number of positives that support him.   He has been free of convictions for the last 10 years.   That certainly reflects a maturity

for  which  he  is  to  be  given  some  credit.    He  has  also  been  able  to  maintain employment of recent times.  The pre-sentence report is positive to the extent that it records him as being at low risk of reoffending.   It also confirms he is a man who realises the consequences of his offending and was able to articulate, with insight, the causes of his offending.  Further the report notes he appeared motivated to reduce the likelihood of further offences.

[16]     When assessed Mr Kuka did have a score which suggested a harmful pattern

of drug use but reported to the probation officer that he had not used cannabis for a period of weeks.  He also noted he was willing to undertake drug counselling.

[17]     In  the  circumstances  the  Crown  do  not  oppose  the  imposition  of  a  term  of home detention as the appropriate sentence.

[18]     Given that the sentencing exercise proceeded on an incorrect basis this is an appropriate case for this Court to consider the imposition of sentence afresh.  For the reasons I have outlined above, and given the extent of the offending, and the early guilty pleas, a term of imprisonment in the range  of  15  to  16  months  would  have been appropriate, however, I am satisfied that in the particular circumstances of Mr Kuka that home detention is the appropriate sentence in this case.

[19]     Counsel are agreed that in the event of home detention being imposed eight months is the appropriate term.  I agree.

[20]     I  allow  the  appeal  for  the  reasons  given.     The  sentence  of  15  months’ imprisonment is quashed.  In its place Mr Kuka is sentenced to home detention for a period of eight months.

[21]     In  addition  to  the  standard  conditions  he  is  also  to  undertake  any  drug  or alcohol counselling as directed by the probation officer.

[22]     The sentence of home detention is to  be  served  at  the  address  of  3  Sharyn

Place, Brookfield, Tauranga.

[23]     On release from Court today Mr Kuka is to travel directly to that address, and await the arrival of the probation officer and security officer.

[24]     He is to reside at that address for the duration of the sentence.

[25]     He is to report to a probation officer as directed and as noted he is to attend and complete any alcohol and drug programme that may be directed by the probation officer to the satisfaction of his probation officer and he is to otherwise report to the probation officer as directed by that probation officer.

[26]     During the course of that home detention he is not to use illicit drugs.

Venning J