Akai v Police HC Auckland CRI-2011-404-342 [2011] NZHC 1829 (21 November 2011)

Last Updated: 13 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-342}

BETWEEN DON AKAI Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 21 November 2011

Counsel: H J Talbot for Appellant

R S Reed and M R Galler for Respondent

Judgment: 21 November 2011

_{JUDGMENT OF BREWER J}

SOLICITORS

Public Defence Service (Manukau City) for Appellant

_{Meredith Connell (Auckland) for Respondent}

AKAI V POLICE HC AK CRI-2011-404-342 21 November 2011

[1] By notice of appeal dated 30 August 2011 the appellant appeals against a sentence of nine months’ home detention imposed by District Court Judge JP Clapham in the District Court at Manukau on 5 August 2011.

[2] The charge upon which the appellant was sentenced was offering to supply the Class B drug Ecstasy. The charge was laid on 21 January 2011 and the appellant pleaded guilty to it on 30 March 2011.

[3] The appeal is brought on the basis that the sentence is manifestly excessive.

The facts

[4] The appellant was inside a car parked in Howick at about 1:45 am on

21 January 2011. The inference is that one of his purposes in being there was to deal in Ecstasy.

[5] An associate approached the car and introduced a stranger. The appellant offered to sell Ecstasy tablets to the stranger for $40 each. The appellant showed the tablets to the stranger and then went with him to an ATM machine to get cash. Although it is not noted in the summary of facts, the District Court Judge in his sentencing notes records that the stranger was involved with an undercover Police operation. The appellant was arrested and found to possess 24 Ecstasy tablets.

[6] The appellant acknowledged that the tablets were his, that they were Ecstasy and that he was selling them for $40 each. He said that his motive for doing so was to pay off debts he owed to his drug supplier. He said that he had sold six or seven tablets from his current supply and that he had made $10 profit per tablet.

[7] The appellant at that time was 20 years old and had not previously appeared before the Courts.

[8] The District Court Judge had the benefit of a full pre-sentence report. This was generally favourable. It recorded that the appellant had been working as a baker for the previous four years, had no gang affiliations, and was closely connected to his family.

[9] The report highlighted that the appellant was a user of Ecstasy and alcohol and gave his explanation that on the night in question he had been out socialising, drinking and taking drugs, and that the offending was spontaneous rather than part of a routine of dealing.

[10] The appellant showed no remorse nor willingness to make amends. The author of the report considered that should the causes of the appellant’s offending remain unaddressed then his risk of reoffending is likely to escalate.

[11] The author of the report considered home detention to be a viable sentence as it would allow the appellant to continue to work and be managed. Further, home detention has the rehabilitative focus that would allow the appellant to deal with his alcohol and drug issues.

[12] The report recommended a sentence of home detention with specified special conditions relating to addressing the appellant’s alcohol and drug problems. The author of the report considered that the appellant should be subject to these conditions for at least 12 months. This could be achieved by a period of 12 months’ home detention or through post-detention conditions attached to a lesser sentence of home detention.

Defence submissions

[13] Ms Talbot for the appellant submits that the District Court Judge erred, with such errors leading to a manifestly excessive sentence, by:

(a) Adopting an apparent starting point of 18 months’ imprisonment;

(b) Misunderstanding the probation officer’s recommendation as being for a sentence of 12 months’ home detention;

(c) Not giving a reduction for the early guilty plea;

(d) Not giving a specific reduction for the appellant’s young age;

(e) Not giving a specific reduction for being a first offender;

(f) Not giving a specific reduction in recognition of the analysis of the tablets he offered to supply as being Class C controlled drugs and not Class B controlled drugs.

[14] Ms Talbot submits that in the circumstances there should not have been a sentence of home detention. Instead, a sentence of community detention together with supervision with special conditions would meet the requirements of denunciation and deterrence and deal more appropriately with the need to rehabilitate the appellant and reintegrate him with the community.

Crown submissions

[15] The Crown responds to the Defence submissions as follows:

(a) A starting point of 12-18 months’ imprisonment, as adopted by the District Court Judge, was appropriate on the case law. On the basis of the decision of the Court of Appeal in R v Graham[1] the Crown submits that it does not matter that the tablets turned out to contain a Class C controlled drug as opposed to a Class B controlled drug. What is important is the intention of the appellant and in this case there is no doubt that he believed that he was offering a Class B controlled drug. Accordingly, the Crown submits that a starting point

of 18 months’ imprisonment was within the range available to the

_Judge.

(b) The Crown acknowledges that the District Court Judge, although referring to the appellant’s age, lack of convictions and plea of guilty and concluding that those factors entitled him to discounts on the end sentence, did not identify what discounts were given.

(c) The Crown also acknowledges that under conventional sentencing practices an end point of 18 months’ imprisonment would, if a sentence of home detention was imposed instead, be translated to nine months’ home detention.

[16] Given the above, the Crown, responsibly, submits that an appropriate end sentence would have been one of six months’ home detention, allowing for a discount of four months or so from the starting point of 18 months’ imprisonment to reflect the mitigating features.

Decision

[17] An appeal against sentence from the District Court to this Court proceeds by way of rehearing.[2] Ultimately, it is the end sentence that I have to consider. If it is clearly excessive then I must substitute the sentence which I decide is appropriate in all the circumstances. If I decide that the sentence is within the range available to the District Court Judge then I should leave it undisturbed, even though I disagree with the path by which the District Court Judge reached the sentence.

[18] I find that a starting point in terms of imprisonment was justified. This offending, in my view, falls at the lower end of the third category of the R v Wallace3 [3]tariff case, which indicates a starting point band of up to five years’ imprisonment. It is, in my view, less serious than the offending in R v Schaumkell,[4] cited by the

_{Crown. I would impose a starting point of 18 months’ imprisonment.}

[19] I do not accept that the starting point should be reduced at all for the fortuitous outcome, of which the appellant was unaware, that the tablets in his possession were Class C controlled drugs and not Class B controlled drugs. The appellant believed he was offering to supply Ecstasy. The fact that the tablets contained a lesser class of drugs does not dilute his culpability on this charge

(although it would, of course, hamper a charge of actual supply).[5]

[20] I do not agree that the appellant is entitled to much credit for his age. He was

20 at the time. He was not a child. In fact, he is a father of a three year old child and has a full-time job as a baker. He is entitled to credit for his previously unblemished criminal record and previous good character. I would allow a credit of three months for those factors.

[21] For his early guilty plea I would allow a reduction of 20%. The strength of the evidence against the appellant was irresistible and a conviction was inevitable.[6]

That results in an end point of 12 months’ imprisonment.

Whether home detention appropriate

[22] The Court may only impose a sentence of home detention if it would otherwise sentence an offender to imprisonment and the Court is satisfied that the purposes of sentencing cannot be achieved by any less restrictive sentence or combination of sentences.[7] There is no “prevailing presumption” in favour of home detention if the end sentence is within 24 months — whether it is appropriate depends upon the circumstances of the case.[8] The ss 7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered.

[23] In this case I am satisfied that home detention is appropriate. The appellant was caught dealing drugs. He has not demonstrated any particular remorse or taken practical steps to address his antisocial behaviours. The opinion of the probation

_{officer is that home detention is the best mechanism for addressing his rehabilitative}

needs. A change to his work schedule, as advised today by Ms Talbot, might make community detention more practical, but nevertheless I agree with the opinion in the pre-sentence report. The appellant is a young man who has the opportunity to turn around his drug and alcohol problems before they cause him further trouble.

[24] In my view, a shorter sentence of home detention combined with post- detention conditions[9] will sufficiently address these needs while holding the appellant accountable for his offending.

Conclusion

[25] In this case, I believe the end sentence of nine months’ home detention was

clearly excessive.

[26] The appeal is allowed. The sentence of the District Court Judge is varied by substituting a sentence of six months’ home detention for the nine months’ home detention imposed by the District Court Judge. The post-detention conditions specified by the District Court Judge are to remain unchanged. For the purpose of s 80N(1) of the Act, the period of the post-detention conditions will expire on

_{4 August 2012.}

_{Brewer J}

.

---

[1] R v Graham CA199/03, 26 September 2003.
[2] Summary Proceedings Act 1957, s 121; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[3] _{R v Wallace [1999] 3 NZLR 159 (CA), approved in R v Adams [2008] NZCA 171.}

[4] R v Schaumkell HC Auckland CRI-2007-004-14251, 1 February 2008, Andrews J.
[5] _{R v Graham CA199/03, 26 September 2003 at [12].}
[6] _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].}
[7] _{Sentencing Act 2002, s 15A(1).}

[8] R v Stacey [2008] NZCA 465.

[9] Sentencing Act 2002, s 80N