Youkhana v Police - [2024] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-000019

[2024] NZHC 1060

BETWEEN
RAMI LAZAR YOUKHANA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 April 2024

Counsel:

K F Preston and I M I Aitchison for Appellant J G Avia for Respondent

Judgment:

2 May 2024

JUDGMENT OF LA HOOD J

An appeal against a decision to impose imprisonment rather than home detention

[1] Rami Youkhana appeals against a sentence of 24 months’ imprisonment imposed in the District Court on 20 February 2024,1 for one charge of burglary2 and one charge of receiving property3 following the entry of guilty pleas.

[2] The issue on appeal is whether the sentence of 24 months’ imprisonment should have been commuted to home detention. Mr Youkhana submits that the Judge erred by not imposing the least restrictive sentence appropriate to meet the purposes and principles of sentencing. It is contended there was inadequate recognition of Mr Youkhana’s personal mitigating factors (including his efforts to rehabilitate) and undue weight was placed on his previous convictions.

1      New Zealand Police v Youkhana [2024] NZDC 3938 [Sentencing Notes of Judge Nicholls].
2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
3      Crimes Act, ss 246 and 247(a); maximum penalty seven years’ imprisonment.

YOUKHANA v NEW ZEALAND POLICE [2024] NZHC 1060 [2 May 2024]

[3] For the reasons set out below, I do not consider that the Judge erred in deciding that a sentence of imprisonment was the least restrictive option in the circumstances. It was open to the Judge to conclude that Mr Youkhana’s disregard for community- based sentences, continued offending while subject to those sentences, and failure to meaningfully engage with his underlying drug problem, meant that imprisonment was necessary to meet the sentencing objectives of deterrence, accountability and community protection.

Approach to appeal

[4] This appeal falls to be determined under s 250 of the Criminal Procedure Act 2011. It is convenient to set out what I have previously said in an appeal challenging a decision not to commute a sentence of imprisonment to home detention:4

[3] In Tutakangahau v R the Court of Appeal confirmed the long-standing approach to sentence appeals was not altered by s 250 of the Criminal Procedure Act 2011. The appellant must show a material error was made and that a different sentence ought to be imposed.5 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.6 The Court said sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer.”7

[4] In R v Palmer the Court of Appeal confirmed that this approach is applicable to an appeal against a decision not to commute a sentence of…

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: [2024] NZHC 1060
Decision Date: 2 May 2024

CaseChat Overview and Summary

Rami Youkhana appealed against a 24-month imprisonment sentence imposed by the District Court for burglary and receiving property charges. The High Court was tasked with determining if the District Court judge erred in not imposing home detention instead of imprisonment. The appeal hinged on whether the District Court judge's decision was a material error and if the imprisonment sentence was manifestly excessive.

The High Court found that the District Court judge did not err in deciding that imprisonment was necessary to meet the purposes of deterrence, accountability, and community protection. Mr Youkhana's history of disregarding community-based sentences, continued offending while under such sentences, and failure to address his drug problem supported the judge's conclusion. Despite Mr Youkhana's recent efforts towards rehabilitation, the court was not convinced of a true change in attitude given his past non-compliance with rehabilitative interventions. The High Court also considered the unsuitable nature of Mr Youkhana's home environment for home detention, which further supported the judge's decision. The appeal was dismissed, affirming the District Court's sentence of imprisonment.

Orders