Yusuf v Department of Corrections

[2023] NZHC 906

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000062

[2023] NZHC 906

BETWEEN

ABDULAHI MOHAMED YUSUF

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	18 April 2023
Appearances:	O H Manaton and M J English for Appellant A N Dawson for Respondent
Judgment:	24 April 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 24 April 2023 at 12 noon

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ………………………………

YUSUF v DEPARTMENT OF CORRECTIONS [2023] NZHC 906 [24 April 2023]

Introduction

[1]    The appellant, Mr Yusuf, pleaded guilty to one charge of breaching a condition of intensive supervision1 in the Waitakere District Court. He was sentenced by his Honour Judge T Singh on 8 February 2023 to an end sentence of 15 months intensive supervision.2 The Judge cancelled the remainder of the appellant’s outstanding sentence of intensive supervision (12 months), which had about two-and-a-half months left to run.

[2]    Mr Yusuf appeals. He contends that the end sentence was manifestly excessive on the following basis:

(a)the sentence imposed was disproportionate to the breach;

(b)the Judge erred by not taking adequate account of the portion of the previous sentence which was actually completed; and

(c)the Judge made a material error by failing to adequately articulate how the sentence was reached.

[3]    The Department of Corrections opposes the appeal. It contends there is no material error in the District Court decision.

Background facts

[4]    Mr Yusuf was sentenced to one year intensive supervision on 29 April 2022 following convictions for:

(a)Possession of cannabis;

(b)Possession of cannabis for supply;

(c)Possession of cannabis utensil; and

1      Sentencing Act 2002, s 70(A)(a), maximum sentence six months imprisonment.

2      Police v Abdullahi [2023] NZDC 3582. The parties are labelled incorrectly in the decision: The prosecutor was the Department of Corrections and the defendant’s name is Mr Yusuf.

(d)Driving with excess breath alcohol.

[5]    He was also convicted and discharged of careless driving. On 3 May 2022  Mr Yusuf was inducted into his sentence of intensive supervision. On five occasions between 5 May 2022 and 15 September 2022, Mr Yusuf failed to report to his probation officer.

[6]    On 22 September 2022 Mr Yusuf again failed to report to his probation officer. Mr Yusuf was charged with a breach of his conditions for failing to report on this date. Mr Yusuf pleaded guilty to the charge on 10 November 2022 and was remanded for sentence in February 2022.

The sentence imposed

[7]    In brief sentencing notes, Judge Singh indicated that sentences of imprisonment and community detention were available to him. However, he concluded that the imposition of a new sentence of intensive supervision was the most appropriate.3

[8]    Judge Singh acknowledged Mr Yusuf may have complied with some conditions, but that appeared to be at his convenience. He reiterated that compliance with all conditions is essential.4 The Judge noted that further non-compliance will likely mean a stricter sentence, such a one of imprisonment.5

[9]    The Judge decided to cancel Mr Yusuf’s existing sentence of intensive supervision and to “reimpose the same sentence”.6 However, the order for sentence of supervision specified a period of one year and three months’ intensive supervision (i.e. 15 months), as opposed to one year.

3      Police v Abdullahi, above n 2, at [1] and [3].

4      Police v Abdullahi, above n 2, at [2].

5      Police v Abdullahi, above n 2, at [4].

6      Police v Abdullahi, above n 2, at [6].

Legal principles

[10]   Mr Yusuf has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (CPA).

[11]   Under s 250 of the CPA, an appeal must be allowed if the court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.

[12]   In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.7 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.8 A Judge on appeal should not intervene where the sentence imposed was within a range that could be properly justified by accepted sentencing principles.9

Discussion

[13]   The reasons given by the learned District Court Judge were very brief. He did not engage in the orthodox sentencing approach set out in Moses v R.10 However, as noted above, the focus on appeal is on the sentence imposed rather than the process by which it was reached.

[14]   The critical issue to determine is whether the sentence imposed was manifestly excessive.

[15]   Where a person breaches a condition of intensive supervision, there can either be an application to cancel or vary their sentence under s 54K of the Sentencing Act 2002, or a charge can be brought under s 70A.   Here, a charge was brought  under    s 70A, and no application was brought to vary his original sentence. As a result, it was not open to the Court to re-sentence the appellant on his original charges;11 the

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

8      Tutakangahau v R, above n 7, at [36].

9      Tutakangahau v R, above n 7, at [36], citing Tutakangahau v R [2014] NZHC 556 at [10].

10     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

11   Wairau v Police HC Rotorua CRI-2008-463-41, 25 July 2008 at [8].  Though this case related to  a breach of home detention, ss 80F and 80S of the Sentencing Act 2002, which relate to home detention, are essentially equivalent to ss 54K and 70A in relation to intensive supervision.

sentence imposed must relate solely to the breach. Judge Singh was therefore in error by cancelling the original sentence of intensive supervision and re-imposing the same sentence.

[16]   I accept, in principle, the respondent’s submission that the impact of a breach of conditions on whether a person was able in substance to complete their sentence of intensive supervision is highly relevant to sentencing for that breach. In some cases, the re-imposing of the previous sentence that was breached may be appropriate when it is directed to the defendant’s best overall prospects of rehabilitation.12

[17]   I also agree with the respondent’s submission that it was not a material error for the Judge to treat a sentence of intensive supervision as the obvious sentence to impose in the circumstances.

[18]   I reject the appellant’s submission that a conviction and discharge or an order to come up for sentence if called upon would have been appropriate. The critical issue is whether the duration of the intensive supervision imposed was excessive.

[19]   The breach here was not significant enough to take the view that the appellant had not substantially completed his original sentence, justifying the reimposition of the full 12 months of intensive supervision. I find that the sentence imposed, namely 15 months intensive supervision, was manifestly excessive. It was, as contended by the appellant, disproportionate to the nature of the offending.

[20]   I accept that the appellant faced only one charge of breaching his conditions. However, the other recorded failures to report to his Probation Officer are relevant and suggest a pattern of non-compliance and general disregard for court processes. It is wrong to characterise the offending as “very limited non-compliance”.

[21]   I have also had regard to the “On Strength” report that was available to Judge Singh. That report records that Mr Yusuf was exited from CADS programmes (which are aimed at those affected by alcohol and other drugs) twice due to poor attendance.

12     Steele v Department of Corrections [2016] NZHC 2144 at [25]–[26] (nine months supervision imposed for breaches of conditions of sentence of nine months supervision).

Mr Yusuf has also failed to attend drug testing on two occasions and failed a drug test for cannabis on 29 November 2022.

[22]   The report ultimately suggests that Mr Yusuf may need more time in his sentence to complete his special conditions and address his offending needs. The PAC report also states that Mr Yusuf’s ability to comply with his sentence of intensive supervision has been unsatisfactory. The breaches meant that he has not engaged with a number of rehabilitative features of his sentence.

[23]   Given Mr Yusuf’s drug and alcohol related offending, I accept Mr Dawson’s submission that the purpose of intensive supervision was to give Mr Yusuf the chance to engage with community services to address his drug use. However, I find that imposing a sentence of supervision of equal length to the original sentence is not required to achieve this purpose.

[24]   Having regard to all these factors, I conclude that an appropriate end sentence would be a sentence of intensive supervision for eight months.

Result

[25]   The appeal is allowed. The sentence of 15 months intensive supervision is cancelled and replaced with a sentence of intensive supervision for eight months.

Andrew J