Pahi v Police

[2018] NZHC 2629

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-65 [2018] NZHC 2629

BETWEEN

KAHU KEWENE PAHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 October 2018
Appearances:	A N D Garrett for Appellant C J Boshier for Respondent
Judgment:	9 October 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      Mr  Pahi  pleaded  guilty  to  a  long  list  of  charges:  receiving,  possession of cannabis,  possession  of  utensils,  possession  of  ammunition,  possession  of methamphetamine, careless driving, aggravated driving while disqualified, failing to answer to bail, beach of release conditions, and two charges of failing to appear.

[2]     On 22 May Judge Kellar sentenced him to one year and nine months imprisonment.1   Mr Pahi appeals that sentence, saying it is manifestly excessive, and that home detention is the appropriate sentence.

1      Police v Pahi [2008] NZDC 10498.

PAHI v NZ POLICE [2018] NZHC 2629 [9 October 2018]

The offending

[3]      The cannabis, methamphetamine, utensils and ammunition charges arose when Police went to an address on an unrelated matter in June 2017 and found these items in Mr Pahi's possession. The Police also seized two earrings and a diamond ring that

Mr Pahi was wearing.  They had been stolen six weeks before, and their combined value was $14,799.  Mr Pahi said he had bought them for $100 each, and knew that they were worth over $6,000 because he had seen a receipt.  He was charged with receiving on the basis that he was reckless as to whether they were stolen.

[4]      In September 2017, Mr Pahi was driving a motorcycle in wet conditions.  He lost control and crashed through a fence. He was disqualified from driving at the time having been disqualified from driving following a previous driving while disqualified charge.  The most recent driving while disqualified conviction is Mr Pahi's sixth of that kind.

Sentencing

[5]      The Judge referred to the pre-sentence report which, while assessing Mr Pahi at a high risk of reoffending, noted that he is highly motivated to reform. Mr Pahi has "left the gang life" and feels he has got over his cycle of offending. His Honour noted factors underlying Mr Pahi's offending include drug use, poor decision making, and association with others who commit offences.

[6]      The Judge also noted that while Mr Pahi's mother was happy to have him at her address on an electronically monitored sentence, Oranga Tamariki and the Police have concerns.  Mr Pahi has a daughter, and he indicated to the pre-sentence report writer that he very much wanted to be a part of her life.

[7]      The Judge took a starting point of nine months for the receiving charge, and uplifted that by 10 months for the driving while disqualified charge, which reflected Mr Pahi's long history of that kind of offending. To that he added two months for the breach of release conditions, and a further two months for the ammunition and drugs charges.

[8]      The Judge said he was not applying an uplift for previous convictions given that the current offending was not as serious as that previous. However, a further two month uplift was adopted because the first set of offending occurred while Mr Pahi was on bail. That resulted in a final starting point of 27 months. A six month discount was applied for guilty pleas, leading to a final sentence of 21 months.

[9]      The Judge declined to grant home detention, saying such a sentence would not achieve relevant sentencing objectives.

Jurisdiction and approach to appeal

[10]     Mr Pahi appeals as of right.2    This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.3  If the sentence under appeal is justified having regard to relevant sentencing principles, this Court will not substitute its own views for those of the sentencing Judge.  The sentence must be either manifestly excessive or inappropriate before departure from the sentencing Judge's exercise of discretion.

Submissions

[11]     Mr Garrett for Mr Pahi takes no issue with the term of imprisonment imposed. The sole ground of appeal is that the Judge should have imposed a sentence of home detention.

[12]    Mr Garrett submits that although the combined effect of the appellant's offending fully justified a firm custodial response, there were indicators available to the Court that a rehabilitative stance was worth taking.  He says that Mr Pahi has a supportive family network, and became addicted to opioid drugs after a motocross accident but is now willing to undertake treatment.  He refers to the probation report which he says is "cautiously optimistic" about Mr Pahi's rehabilitative prospects, and that a drug rehabilitation programme could be undertaken under home detention conditions.

[13]     Mr Pahi has written from prison.  He says he has had a lot of time to think, to participate in courses, and read self-help books.  He says he has "hit a cross-road" in his life, and asks the Court to 'meet him half way' by allowing a more effective rehabilitative sentence.  He says he feels like "a victim of the system", and that there could have been a better outcome for him.

[14]     For  the  Crown  Ms  Boshier  submits  the  Judge  made  no  error  and  given

Mr Pahi's  recidivism,  imprisonment  was  the  least  restrictive  sentence  available.

Mr Pahi has previously received sentences of imprisonment for disqualified driving and dishonesty offending, and as such a lesser sentence would not adequately meet the purposes and principles of sentencing.  Further, having been released on 13 June 2017, he offended while under release conditions.  Despite all that he is doing well in his rehabilitation and the Crown gives him credit for that.

Discussion

[15]     The Court of Appeal has stated that in an appeal against a refusal to grant home detention, should focus on the identification of error, having regard to the discretionary nature of the decision.4   Where all relevant factors have been taken into account, the weight a Judge attaches to a particular factor is not a basis to challenge the exercise of discretion.5

[16]     In my view, there is no error in the sentence imposed. Indeed, Mr Garrett concedes that a "firm custodial response" was "fully justified". It is difficult in light of that submission to see how this Court could, within its remit on appeal, disturb the sentence, although if what Mr Pahi says is proven in time, that he is on a pathway to the end of his offending, then the Court should at least endorse what would be a real seachange in his life.

[17]     The District Court Judge's discussion of home detention in the sentencing notes is brief, and simply states that the purposes and principles of sentencing would not be met by such a sentence. The Judge had highlighted the need to hold Mr Pahi to account

to promote a sense of responsibility in him, and to provide a deterrent "to ensure this pattern of offending comes to an end".  The Judge was entitled to reach the view that imprisonment was necessary for those ends.   It would be unusual for a recidivist offender  to  receive  home  detention  when  sentences  of imprisonment  have  been imposed  for  similar  offending. Accountability  and  deterrence  will  often  involve increasing sentences, the longer the pattern of offending continues.  Having said that, there is no presumption in favour of imprisonment over home detention (or vice versa),6 and a sentence of home detention could have been imposed.  That does not, however, after the fact that the sentence imposed was firmly within the discretion available to the Judge.

[18]     I accept that the information before the Court shows Mr Pahi has rehabilitative potential. He is making all the right responses and seems to be participating successfully in programmes in prison.  While this is encouraging, and is relevant to the question of home detention, the Judge was clearly alive to this and brought it to account in making his decision.7    This is not a long sentence and Mr Pahi it seems is well on the way to breaking the cycle of offending, and the Court commends him for that.

Conclusion

[19]     There was no error in the sentence imposed. The appeal is dismissed.

……………………………….
Nicholas Davidson J

Solicitors:

Raymond Donnelly & Co., Christchurch

A N D Garrett, Barrister, Christchurch