Youkhana v Police
[2024] NZHC 1060
•2 May 2024
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 imprisonment to home detention.8 The Court noted that such a decision calls for a case by case exercise of judgment against the principles and purposes of sentencing, and that these can sometimes point in opposing directions. Absent an error of principle, the appeal came down to whether imprisonment was clearly excessive.9 The Court said:10
“As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant”.
4 Johnson v New Zealand Police [2023] NZHC 3748.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
6 At [30]–[36].
7 At [30] and [35].
8 Palmer v R [2016] NZCA 541.
9 At [24].
10 At [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].
[5] The Court of Appeal in R v D (CA253/2008) also said that in borderline cases “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”11
[6] The “well-engrained”12 error principle articulated in these decisions recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
[7] Accordingly, the issues on this appeal are whether there has been a material error that means a different sentence should be imposed and, if not, whether there has been an error because a sentence of imprisonment was manifestly excessive.
The relevant background
[8] Mr Youkhana, aged 29, and an associate entered guilty pleas to the charges of burglary and receiving on the basis of the following facts. On 20 March 2023, Mr Youkhana and an associate entered the victim’s garage of an apartment building on Vivian Street, Wellington. They took a petrol generator worth $895 from a storage box in the garage and left in their car. In her victim impact statement, the victim describes confronting Mr Youkhana and his associate. They lied to her by stating that they were visiting a friend and continuously asked her why she was questioning them. She felt intimated by the combination of their attitude, larger size and the presence of their dog. She felt invaded by the burglary.
[9] On 29 March 2023, police executed a search warrant at Mr Youkhana’s address and located several items linked to burglaries of garages around Wellington from the week and days prior. In particular, police found: a Vespa moped valued at $1,500 and linked to a burglary on 21 March 2023; a Giant e-bike valued at $2,959 and linked to a burglary on 24-25 March 2023; a cricket bag and gear, chainsaw, gazebo and water blaster valued at $3,000 and linked to a burglary on 25-26 March 2023; and a Haibike e-bike and shoes valued at $8,000 and linked to a burglary on 28 March 2023.
11 At [66].
12 Tutakangahau v R, above n 5, at [34]–[35].
District Court decision
[10] Judge Nicholls provided a sentence indication on 25 October 2023 in which he adopted an overall starting point of 33 months’ imprisonment to reflect the seriousness of the offending.13 The Judge then applied an uplift of five months’ imprisonment for previous relevant convictions,14 a 25 per cent credit for guilty plea, and a two month credit for time spent on restrictive bail conditions,15 resulting in a sentence indication of 27 months’ imprisonment.
[11] On 20 February 2024 the Judge proceeded to finalise the sentence, with the benefit of a victim impact statement for the burglary offending, a pre-sentence report, and an alcohol and drug report.16 The Judge expressly considered each in turn.17 The Judge noted that the pre-sentence report advises that Mr Youkhana is “a prolific drug user and offender” and raises issues as to his track record of compliance with community based sentences or “getting anything out of them”.18 The Judge then referred to that history:
[8] So in August 2023 there was a conviction for breach of an intensive supervision sentence and the pre-sentence report notes that Mr Youkhana completed none of the special conditions related to that sentence.
[9] Currently there is a sentence of community work outstanding where there has been no engagement on that sentence, so 39.5 hours out of the 40 hours are outstanding. There is also a discussion of a sentence of home detention that ran from December 2018 through to July 2019 where Mr Youkhana was charged and convicted for receiving in February 2019 while he was on that sentence of home detention.
[12] The Judge went on to consider Mr Youkhana’s personal background factors including his refugee background, his supportive family, and his unfortunate descent into a bad peer group and his methamphetamine addiction.19 The Judge applied a further discount of three months’ imprisonment in recognition of his drug addiction as
13 A starting point of nine months’ imprisonment was taken for the burglary and a starting point of two years’ imprisonment for receiving considering the degree of commerciality, the value of the stolen property ($15,000), and the relationship between Mr Youkhana and the burglaries.
14 Mr Youkhana was sentenced in July 2022 for four receiving offences and sentenced in September 2020 for three receiving offences and one burglary.
15 Six months on night-time curfew.
16 New Zealand Police v Youkhana, above n 1.
17 At [6]–[11].
18 At [7].
19 At [12]–[15].
a driver of his offending.20 The Judge considered Mr Youkhana’s aspiration for rehabilitation, and the positive support of his parents at the proposed address, but expressed concern that his previous non-custodial sentences of supervision, intensive supervision, community detention and home detention, had “not resulted in a change of behaviour or any engagement with the underlying drug problem”.21 The Judge ultimately, and “reluctantly” concluded that home detention was the least restrictive option to meet the objectives “to get Mr Youkhana to stop offending and to protect the community”.22
The parties’ positions
[13] Ms Aitchison, for Mr Youkhana, submits that the Judge erred in not imposing a sentence of home detention, on the basis that Mr Youkhana had: demonstrated a willingness to comply with electronically-monitored sentences (and that, in his case, sentences of this nature do have an immediate deterrent effect); significantly decreased the incidence of his offending; recognised the relationship between his methamphetamine addiction and his offending; abstained from methamphetamine and other drugs for a period of three months; reasonably expected significant support from his family in rehabilitating; and taken the first step toward obtaining a place in a residential rehabilitation programme. In these circumstances, it is submitted that a sentence of home detention was capable of meeting the purposes of deterrence and community protection. Failing to impose home detention was contrary to the principle in s 16(1) of the Sentencing Act 2002 of keeping offenders in the community as far as practicable and consonant with the safety of the community.
[14] Ms Avia, for the Crown, submits that the sentence of two years’ imprisonment was available to the sentencing Judge and not manifestly excessive. Based on Mr Youkhana’s history of non-compliance with community-based sentences, his repeated pattern of reoffending, and the lack of engagement with addressing his drug addiction as a driver of his offending, it is submitted that Judge Nicholls was correct to conclude that the purposes of deterrence and community protection could only be achieved by a sentence of imprisonment as the least restrictive sentence. The refusal
20 At [12].
21 At [16].
22 At [17].
to convert the sentence to home detention did not breach s 16 of the Sentencing Act as the desirability of keeping offenders in the community is necessarily constrained by the objective of community protection.23
Decision
[15] The sole issue on appeal is whether the Judge erred in failing to commute the sentence of 24 months’ imprisonment to a sentence of home detention. The appellant does not challenge the Judge’s decision in any other respect. The issue is whether the Judge erred in concluding that the purposes of sentencing (particularly community protection and deterrence),24 could not be achieved by a sentence other than imprisonment.
[16] Mr Youkhana’s engagement with sentences of community work and supervision has been poor. Mr Youkhana has had the benefit of multiple non-custodial sentences since 2017, including home detention, community detention, supervision, intensive supervision, and community work. During this time, Mr Youkhana has amassed 32 convictions for similar offending, mainly involving receiving property and drug offending.
[17] Mr Youkhana’s most recent conviction on 7 August 2023 was for breach of the rehabilitative sentence of intensive supervision; a sentence which had been imposed upon conviction for possession of cannabis for supply and four charges of receiving property (along with a sentence of three months’ community detention). The pre- sentence report records that he did not comply with any of the special conditions of his intensive supervision. He was sentenced to 40 hours’ community work for the breach of intensive supervision and failed to complete 39.5 hours of that sentence (the pre-sentence report noting this was despite efforts by Community Corrections to get him to engage with the sentence). Mr Youkhana not only chose to ignore his sentences of intensive supervision and community work, but committed the offending subject to this appeal while still subject to the intensive supervision sentence.
23 Nassery v R [2022] NZCA 213.
24 Sentencing Act 2002, s 7(1)(f)–(g).
[18] Mr Youkhama was, on 11 September 2020, sentenced to community detention and supervision on three convictions of receiving property, being unlawfully in a building, and obstructing a medical officer. On 19 August 2020, he was also sentenced to community detention and supervision for breach of community work, theft, unlawfully interfering with or getting into motor vehicles and shoplifting. While subject to that sentence, he was convicted of three charges of receiving for which he was sentenced to the intensive supervision and community detention sentence already mentioned (on 27 July 2022). Despite Ms Aitchison’s submission that there has been a recent decrease in the incidence of offending, the Judge made a fair and accurate assessment of Mr Youkhana’s history and was entitled to find that those sentences “have not resulted in a change of behaviour or any engagement with the underlying drug problem”.
[19] In relation to the receiving offending for which Mr Youkhana was convicted during his period of home detention in December 2018, Ms Aitchison submits that the relevant items could have been received prior to the commencement of the sentence. This is raised to submit that electronically monitored sentences “plainly” do have an immediate deterrent effect on Mr Youkhana. However, even if this were the case, it does not materially mitigate the broader history of disregard for sentences, and offending while subject to them, that the Judge rightly took into account. Moreover, plainly there will be an immediate decrease in the ability to offend when subject to the constraints of an electronically monitored sentence. The point the Judge was making, with which I agree, is that sentences involving electronic monitoring have had no deterrent effect on Mr Youkhana’s behaviour when electronic monitoring ends. It was open to the Judge to conclude that the point had been reached where Mr Youkhana needs to understand that disregard for rehabilitative sentences and continued offending will result in a stern response.
[20] I do not accept the appellant’s submission that the Judge failed to give due consideration to Mr Youkhana’s background circumstances. The Judge expressly considered Mr Youkhana’s aspirations to enrol at the Bridge Programme.25 The Judge nevertheless found that he was yet to make a “sustained effort to deal with his drug
25 At [14] and [16].
problem”.26 The Judge said, “aspirations to enrol at the Bridge programme in the face of a sentence indication do not provide enough of a concrete indication of commitment to behaviour change”. The Judge also gave credit to the pro-social support that would have been provided by Mr Youkhana’s parents at the proposed address,27 the concerns about future travel to Australia,28 his personal upbringing as a refugee,29 and his drug addiction.30
[21] It is promising, as Ms Aitchison submits, that the pre-sentence report records Mr Youkhana’s self-reported abstinence from drug use for three months, but as that report also notes he has failed to take up the referrals to various agencies to address his addiction as part of his previous sentences. Moreover, clearly three months of self- reported abstinence from drugs while awaiting sentencing is only a minor step on the road to recovery from a long-standing methamphetamine addiction. It also cannot be overlooked that the pre-sentence report states that Mr Youkhana appeared to have little empathy for his victims and his focus was on avoiding being subject to a custodial sentence. Although, as Ms Aitchison submits, the desire to avoid imprisonment is not inconsistent with a desire to rehabilitate, I accept Ms Avia’s submission that Mr Youkhama’s history of non-compliance with rehabilitative interventions provides little confidence that there has been a true change in attitude.
[22] It was confirmed at the hearing that an application to the Bridge programme had been made following completion of Mr Youkhana’s alcohol and drug assessment, but it has not been through the screening and acceptance process. I am told that there has been no further engagement with the Bridge programme since, and it is uncertain whether there would be any possibility of completing the programme while on home detention (given the acceptance process and wait time).
[23] I do not accept the submission that the Judge’s five month uplift of the starting point to reflect Mr Youkhana’s previous convictions means the decision to impose imprisonment is manifestly excessive. There has been no challenge to the end
26 At [14].
27 At [14].
28 At [15].
29 At [11].
30 At [12].
sentence of 24 months’ imprisonment due to an excessive uplift for previous convictions (or any other reason). In the absence of such a challenge, the submission cannot be sustained. The question on appeal is whether the end sentence was manifestly excessive not whether there was any error in the process by which it was reached. Moreover, there is no error of principle in taking into account the need for deterrence and community protection at the point of considering home detention, even though those purposes formed part of the reasons for uplifting the prison sentence. Assessing the appropriate prison sentence is a separate exercise to deciding whether to convert that sentence to home detention. Both must be made by reference to the relevant purposes and principles of sentencing.
[24] I therefore consider it was open to the Judge to conclude that an application to the Bridge programme, and an expressed aspiration for rehabilitation, was not enough for the sentencing purposes of deterrence, accountability and community protection to be met by a sentence of home detention.
[25] I also note the pre-sentence report expressed concerns about the suitability of Mr Youkhana’s parents’ address for home detention, which included noting Mr Youkhana’s gang connections, that there had been 12 police callouts to the address over the past 12 months (including one involving weapons) and a family harm callout involving Mr Youkhana where his mother was the alleged victim.
[26] I consider the cases relied upon by Mr Youkhana of Tantrum v New Zealand Police and Dean v The Crown, where appeals were allowed and sentences of imprisonment commuted to home detention, offer little assistance.31 As noted above, usually a significant margin of appreciation is extended to sentencing Judges in cases where there is a difficult choice between home detention and imprisonment. Cases will almost invariably turn on their own facts, particularly the personal circumstances of the offender and the nature and circumstances of the offending. The question is not whether a different Judge may have taken a more lenient approach but rather whether the Judge’s conclusion was reasonably open.
31 Tantrum v New Zealand Police [2024] NZHC CRI-2024-443-5; and Dean v The Crown [2021] NZHC 2334.
[27] I consider that the Judge appropriately weighed all relevant matters. It was open to him to conclude that the sentencing objectives of deterrence, accountability and community protection should be given precedence given Mr Youkhana’s disregard for community-based and rehabilitative sentences, and the failure of such sentences to break his pattern of offending. As there was no error of principle in the Judge’s approach and his ultimate conclusion was reasonably open, there is no basis to interfere on appeal.
[28] Mr Youkhana is still a relatively young man, and it can only be hoped that he commits to obtaining the help he clearly needs to address his addiction and the underlying drivers of his offending upon his release. In this regard, I note that the special conditions of his release from prison include completing any counselling, treatment or programme recommended by an alcohol and drug assessment.
[29]Accordingly, the appeal is dismissed.
La Hood J
Solicitors:
Crown Solicitor, Wellington for Respondent
Copy to:
Mr K F Preston, Barrister, Wellington for Appellant
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