Nahi v Police
[2012] NZHC 2576
•4 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000295 [2012] NZHC 2576
BETWEEN HEMI JAMES NAHI Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 September 2012
Appearances: G H Vear for Appellant
R K Thomson for Respondent
Judgment: 4 October 2012
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 4 October 2012 at 4:30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………
Solicitors: Public Defence Service, P O Box 21448, Henderson, Waitakere 0650
Fax: (09) 838-9983 – G Vear
Meredith Connell, P O Box 2213, Auckland 1141Fax: (09) 336-7629 – R Thomson
NAHI V NZ POLICE HC AK CRI-2012-404-000295 [4 October 2012]
Introduction
[1] The appellant, Hemi James Nahi, pleaded guilty to the following charges and was sentenced on 14 August 2012 in the District Court at Waitakere:
Unlawfully interfering with a motor vehicle on 2 November 2010 pursuant to
s 226(2) of the Crimes Act 1961;
Possession of cannabis on 8 November 2010 pursuant to s 7(1)(a) of the
Misuse of Drugs Act 1975;
Excess breath alcohol (third and subsequent) on 12 November 2010 pursuant
to s 56(1) of the Land Transport Act 1998;
Breach of intensive supervision on 16 June 2011 pursuant to s 70A(b) of the
Sentencing Act 2002;
Receiving (under $500) on 28 June 2011 pursuant to ss 246 and 247(c) of the
Crimes Act;
Failure to answer District Court bail on 21 February 2012 pursuant to s 37(a)
of the Bail Act 2000.
[2] Although the Judge identified separate starting points and indicated an intention to impose cumulative sentences, the approach she ultimately took resulted in concurrent sentences of nine-and-a-half months imprisonment being imposed on each charge:
[6] So for the offence of unlawfully interfering with a motor vehicle, that is three months’ imprisonment. Because there are several offences at several times, I am going to cumulate or add together sentences for each offence, making sure the total prison sentence is not too high. For the possession of the cannabis plant material, one month imprisonment. For your fourth drink driving offence, six months’ imprisonment. For your breach of intensive supervision, two months’ imprisonment. For receiving the brass portholes, one month imprisonment. For your breach of bail, one month imprisonment; that leads to an end sentence of 14 months’ imprisonment.
[7] I am going to deduct just over 10 per cent of your mental health issues and other health issues bringing me down to 12 and a half months’ imprisonment. Even if there is not a great deal of evidence about that, I am giving you the benefit of the doubt and the benefit of the discount.
[8] From that I deduct just under 25 percent for your guilty pleas because despite the delay for some of your pleas you have pleaded guilty for all. That is three months. That brings me down to nine and a half months’ imprisonment, which is the term that I impose.
[3] Mr Nahi appeals the sentences on the basis that they are manifestly excessive because:
(a) The Judge used cumulative starting points which resulted in an overall sentence that did not fairly reflect the totality of the offending;
(b)The Judge adopted too high a starting point on the excess breath alcohol (third or subsequent) charge;
(c) The Judge did not comply with ss 81 and 85(4) of the Sentencing Act with the result that some of the sentences exceeded the maximum penalty available on the relevant charge.
[4] In addition, the Judge granted an application to cancel and substitute a sentence of community work imposed on 4 August 2010 on one charge of wilful damage. A sentence of nine-and-a-half months was also imposed on that charge, which exceeded the maximum penalty for that charge.
[5] Finally, the Judge remitted Mr Nahi’s outstanding fines of $1,606.27. The
Crown contends that she had no jurisdiction to do so.
Was the Judge’s approach correct?
[6] It appears that the Judge intended to impose cumulative sentences on the various charges. Given the differing nature of the charges and the dates on which they were each committed, that was entirely appropriate. However, despite that apparent intention, the Judge did not ultimately impose cumulative sentences. Having aggregated the various cumulative starting points the Judge then treated the
total as a single sentence and imposed a global discount for the guilty pleas and personal circumstances. The result was that the sentences for possession of cannabis, breach of terms of supervision, receiving and the sentence imposed in substitution for community work exceeded the maximum penalties.
[7] Where cumulative sentences are imposed the individual sentences must reflect the seriousness of each offence.1 But the end result must not be out of proportion to the gravity of the overall offending.2 This latter aspect, the totality of the offending, is the overriding consideration. On appeal the end sentence is more important than the way the sentence is constructed.3 In this case, however, I accept that because the end sentence imposed concurrently on a number of charges exceeded the relevant maximum penalties, the way the sentence was constructed in this case does matter.
[8] Ms Thomson, for the Police, accepted that because the method adopted by the Judge resulted in some of the sentences exceeding the maximum penalty on some charges, correction would be needed. However, apart from the sentence imposed on the excess breath alcohol charge, the starting points indicated by the Judge were not challenged. Nor were the discounts given for guilty pleas and personal circumstances. Those may be taken as being appropriate in terms of the individual charges.
Was the starting point on the excess breath alcohol charge too high?
[9] The Judge took a starting point of six months on this charge. The offending was at the lower end of the scale with no alleged fault in terms of driving and a reading of 478. Mr Nahi had previous convictions for excess breath alcohol in June
2007 (reading 495) and November 2000 (reading 573). There is also recorded in his criminal history “EBA no licence” in 1991 which the Judge treated as a further excess breath alcohol conviction notwithstanding the lack of detail. I consider that
the Judge was entitled to take into account the existence of the 1991 conviction. The
1 Section 85(1).
2 Section 85(2).
3 R v Xie [2007] 2 NZLR 240; (2006) 22 CRNZ 949 (CA).
absence of information surrounding that conviction limits the weight that may be placed on it as an aggravating factor, but does not render it irrelevant.
[10] Ms Vear, for Mr Nahi, submitted that the Judge should not have treated the
1991 conviction as an aggravating factor due to the lack of a reading and any specific details. Further, Ms Vear submitted that in the circumstances the starting point was excessive, relying particularly on the decisions in Brough v Police4 and
Police v De Weyer.5 In Brough a successful appeal resulted in an end sentence of
120 hours community work for an offence in 2009 with a reading of 574 and previous convictions in 2001 (reading 791) and 1991 (reading 650). In De Weyer, in a Solicitor-General appeal the Judge declined to increase the sentence of 250 hours community work and 12 months’ supervision but noted that the Court could have been justified in taking a starting point of three months’ imprisonment.
[11] Ms Thomson acknowledged that the starting point was at the upper end of the range for this offence, with few of the aggravating features identified in Clotworthy v Police made out.6 She submitted, however, that Brough and De Weyer were distinguishable on the basis that, unlike Mr Nahi, neither Mr Brough nor Mr De Weyer had histories of failure to comply with court orders and community-based sentences. Ms Thomson relied instead on Morgan v Police7 in which a sentence of six months’ imprisonment was upheld on appeal (apparently with a starting point significantly in excess of six months). It is true that in Morgan the reading was similar to that in this case. I have also had regard to Ngaamo v Police8 in which the appellant had two previous convictions and the reading was 843. The previous convictions, although serious, had occurred several years previously. The term of 14 months’ imprisonment was substituted with one of six months.
[12] In the circumstances and looking at all the authorities outlined above, I
consider that six months was within the range that was available to the Judge, though at the upper end of that range.
4 Brough v Police HC Invercargill CRI-2008-425-38, 10 March 2009.
5 Police v De Weyer HC Whangarei CRI-2005-488-20, 22 April 2005.
6 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
7 Morgan v Police HC Wellington AP195/99, 15 July 1999.8 Ngaamo v Police HC Auckland A59/03, 30 May 2003.
Totality
[13] Taking the approach indicated earlier of retaining the starting points identified by the Judge and applying the same discounts the result would be:
Unlawful interference – two months; Possession of cannabis – three weeks;
Excess breath alcohol (third and subsequent) – four months; Breach of supervision – five weeks;
Receiving – three weeks;
Breach of bail – three weeks; Wilful damage – one month.
[14] Imposed cumulatively this would lead to a total of ten-and-a-half months. Considering that this represents seven quite different offences committed over the course of more than a year and some committed while on bail I do not consider that this would have been manifestly excessive. It is, however, higher than the nine-and- a-half months actually imposed by the Judge. I consider the best course to adjust the total of the sentences by reducing the sentence on the excess breath alcohol charge to three months. The total is therefore the same as that imposed by the Judge but constructed in a manner that properly reflects the maximum penalties and the cumulative nature of the sentences.
Remission of fines
[15] In relation to Mr Nahi’s fines the Judge said:
[12] There is no fines report, apparently, but I will have to bear the consequences of that by actually remitting your fines as part of the prison
sentence. I am cancelling your $1606.27 in outstanding fines; they are all gone.
[16] A District Court Judge has the power to remit fines under s 88AE of the Summary Proceedings Act 1957.9 That power can only be exercised, however, after the Judge has considered a report prepared by the Registrar under s 88AD and the defendant’s financial position. The cases decided under the predecessor to s 88AE make it clear that unless that procedure is followed, there is no jurisdiction to remit fines.10
[17] Ms Vear, however, submitted that, whilst the power to remit fines and impose a sentence in lieu of the fines could only be exercised after the statutory procedure had been carried out, there was nevertheless a discretion to remit fines simply in order to provide a clean slate for the offender. She relied for this proposition on Heath J’s decision in Johnson v Police:11
[38] In R v Gebbie (CA452/04, 2 March 2005), the Court of Appeal considered whether it was legitimate for a sentencing Judge to remit fines imposed for unrelated offending as part of the exercise of sentencing for a different offence. The Court held it was not: at [6], [7] and [8]). The Court also acknowledged that s 106E(2) of the Summary Proceedings Act 1957 made it clear that imprisonment could not be imposed on a person for non- payment of fines unless, among other things, the Judge was satisfied that a defendant had the means to pay the fine and all other methods of enforcing the fine had been considered or tried and were inappropriate or unsuccessful. The s 106E procedure was not followed in this case.
[39] The theoretical underpinning of the Court of Appeal’s conclusion is the principle that a sentence on a specific charge ought not to be increased as a result of an approach taken in respect of fines imposed in unrelated cases. But as I read Gebbie, there is nothing to prevent a Judge from exercising a discretion to remit fines, as part of the sentencing process, in order to provide a clean slate from which the offender can start life after imprisonment, provided the Judge is satisfied such a course of action is appropriate. In that situation, no additional penalty is being imposed.
[18] That decision has been followed by one other High Court Judge.12 However, neither Johnson nor Clarke referred to the two earlier decisions of the Court of
9 Section 88AE was substituted for the predecessor provision s 88 by s 25 of the Summary
Proceedings Amendment Act 2011.
10 R v King CA23/01, 21 June 2001 at [4]; R v Eliu [2008] NZCA 239 at [5]; Brown v R [2009] NZCA
288 at [28]; Hunt v R [2010] NZCA 78 at [16]; Ward v R [2011] NZCA 44 at [4].
11 Johnson v Police HC New Plymouth CRI-2008-443-9, 10 April 2008.
12 Clarke v Police HC Wellington CRI-2010-485-136, 14 February 2011.
Appeal, R v King13 or Hemara v Police.14 In Hemara the Court made the following statement:
The Court of Appeal and the High Court have on several occasions made clear to District Court Judges that there was no general power to remit fines when sentencing someone to imprisonment. If fines are to be remitted, the procedure specified at s 88 must be followed. See in this regard R v King CA23/01, 21 June 2001 at [4], Hirst v Police (1990) 6 CRNZ 99 at [101] and Mason v R HC HAM A22/03 19 June 2003 at [8].
[19] Ms Thomson also pointed out in her supplementary submissions that, not only is there no statutory power to remit fines in the present circumstances but nor does such a power lie within the District Court’s inherent powers. In Attorney- General v Otahuhu District Court,15 the Court of Appeal said:
As a statutory court of limited jurisdiction the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction. The most important of these inherent powers are the power of a court subject to the rules of court and to statute to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent an abuse of its process.
[20] I agree that the power to remit fines does not fall within the ambit of the District Court’s jurisdiction as described by the Court of Appeal. There is nothing to prevent Mr Nahi from making an application for the remission of fines once the required procedure has been followed. But as matters stood before the District Court Judge, jurisdiction did not exist that would have allowed her to make the order remitting the fines, and so those fines must be reinstated.
Result
[21] The appeal is allowed. The sentences previously imposed are quashed and the following cumulative sentences of imprisonment are substituted:
Unlawful interference – two months;
13 R v King, above n 10, at [4].
14 Hemara v Police HC New Plymouth AP17/03, 15 September 2003 at [22].
15 Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA) at [16].
Possession of cannabis – three weeks;
Excess breath alcohol (third and subsequent) – three months; Breach of supervision – five weeks;
Receiving – three weeks;
Breach of bail – three weeks; Wilful damage – one month.
[22] The cross-appeal is also allowed, and the outstanding fines amounting to
$1,606.27 are reinstated.
P Courtney J
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