Kane v Police [2012] NZHC 209 (2 March 2012)

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Kane v Police [2012] NZHC 209 (2 March 2012)

Last Updated: 22 March 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-470-000001 [2012] NZHC 209

LIAM JOHN KANE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 29 February 2012

Counsel: A C Balme for the Appellant

R W Jenson for the Respondent

Judgment: 2 March 2012

_{JUDGMENT OF DUFFY J}

This judgment was delivered by Justice Duffy on 2 March 2012 at am/pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: A C Balme P O Box 13079 Tauranga Central Tauranga 3141 for the Appellant

Solicitors: Ronayne Hollister-Jones Lellman P O Box 13063 (DX HP40041) Tauranga Central Tauranga 3141 for the Respondent

KANE v POLICE HC ROT CRI-2012-470-000001 [2 March 2012]

[1] The appellant pleaded guilty to, and following conviction was sentenced on the following charges:

(i) Supply of a class A controlled drug, methamphetamine – s 6(1)(c) of the Misuse of Drugs Act 1975, carrying a maximum penalty of life imprisonment; and

(ii) Possession of a class A controlled drug, methamphetamine – s 6(1)(f) of the Misuse of Drugs Act, carrying a maximum penalty of life imprisonment.

[2] The appellant is 21 years old. He has five previous convictions, all of which are not relevant to the present offending. Three convictions are for traffic offences; the other two convictions are for breaching a local liquor ban.

[3] On 27 July 2011, the Police executed a search of the appellant’s house and found a small tin, which contained a rolled up $5 note, a self-sealing plastic bag containing 1.96 grams of crystal methamphetamine (the weight includes the weight of the bag), a set of digital electronic scales, unused, clear self-sealing plastic bags and $840 cash.

[4] The appellant has a significant methamphetamine habit and indicated to the Police that he intended to consume approximately half of the methamphetamine that was found in the bag. He said that he intended to package the remainder into the self-sealing bags and sell it.

[5] He informed the Police that, on 23 July 2011, he had obtained two grams of methamphetamine and sold approximately half of this.

[6] The appellant also stated that a week earlier he had obtained approximately one gram of methamphetamine. He sold half and consumed the remainder. These transactions were used to fund his personal consumption.

[7] It was accepted that some of the cash found in the bedroom was a loan.

District Court sentencing

[8] In the District Court, the Judge characterised the offending as being within band one of R v Fatu [2006] 2 NZLR 72, which indicated an appropriate starting point of two to four years’ imprisonment. It was the Crown’s submission that there was 3.5 grams of methamphetamine, while the appellant submits that this was closer to 2.5 grams once the amount used for personal consumption was taken into account.

[9] The Judge said that he would adopt the defence submission and set a starting point of three years’ imprisonment. The Judge then gave a reduction of three months for the steps taken for rehabilitation and a further 25 per cent reduction for the plea (eight months). This gave an end sentence of two years and one month imprisonment, which the Judge said placed the appellant outside the range for consideration of home detention.

[10] The Judge sentenced the appellant to two months’ imprisonment concurrent on the possession charge. There was also an order for destruction of the scales and bags, and forfeiture of the funds of $240.

[11] The appellant contends that the sentence imposed was manifestly excessive and wrong in principle. The appellant agrees with the starting point of three years adopted by the Judge, but contends that the Judge erred in failing to make further discounts for remorse, lack of previous relevant convictions, co-operation with the Police, and relative youth.

[12] The appellant contends that he has displayed a high degree of remorse, which justifies a separate discount over and above that received for the guilty plea. The appellant also submitted that the remorse and other mitigating factors referred to should have led to an additional reduction of four months’ imprisonment. Had that occurred, it would have led to an end sentence of one year and nine months’ imprisonment, thus allowing a term of home detention to be considered.

[13] The respondent opposes the appeal. The respondent submits that the end sentence imposed was neither manifestly excessive, nor wrong in principle. The

respondent contends that the sentencing Judge was made aware of all relevant mitigating factors prior to, or at sentencing, and considered a total reduction of 11 months, which amounts to 31 per cent, from the starting point to be appropriate. Thus, the sentence imposed was within the range available and appropriate for this type of offending.

[14] The respondent notes that the Judge commenced with a starting point appropriate for the offending of three years’ imprisonment, gave a reduction of three months to reflect the steps the appellant had taken towards rehabilitation and, from a point of two years, nine months, gave a further reduction of 25 per cent for a plea, which he determined to be eight months. The respondent acknowledges that eight months was slightly less than 25 per cent of 33 months; however, notes that the appellant does not appear to be taking issue with this element of the sentence.

[15] The respondent accepts that the total reduction for mitigating factors comes to approximately 31 per cent, which the respondent acknowledges is at the lower end of the range. The respondent submits, however, that the sentencing notes indicate that the Judge appropriately considered all of the appellant’s mitigating features as part of determining the appropriate reduction from the starting point; that a three month reduction for mitigating features was within the range available; and that it was not unreasonable in the circumstances of the starting point adopted and the final sentence imposed. The respondent argues that even if an amendment to the reduction imposed for mitigating features is considered to be appropriate (which is disputed), such an amendment could only realistically be in the region of one to two months. The respondent contends that such a result would simply amount to an exercise in tinkering with the end sentence reached by the District Court Judge, rather than correcting a sentence which is manifestly excessive or wrong in principle.

[16] In this regard, the respondent contends that the effect of the appellant’s submissions is to argue for a small reduction of the end sentence, such as to bring the sentence within the range of home detention. The respondent submits that such an approach would not be an appropriate exercise of an appellate court’s function on sentencing appeals.

[17] Regarding consideration of home detention, the sentencing Judge acknowledged the pre-sentence report writer’s recommendation of a sentence of home detention; however, given the end sentence reached, home detention was not an option.

[18] The respondent also argues that, given the starting point suggested by the respondent and the appellant prior to sentencing, the sentencing Judge would have been conscious of the fact that a sentence within the range of home detention was a possibility, but that his assessment of the appellant’s culpability and mitigating features clearly indicated he considered on balance that imprisonment was the appropriate outcome.

Sentencing approach

[19] An appeal against sentence is a general appeal, which is by way of re- hearing. Section 121(3)(b) of the Summary Proceedings Act provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate”, or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[20] The approach to be taken in appeals under s 121(3)(b) were set out in Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010 where the Court said at [13]-[15]:

a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[21] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[22] Sentencing involves a staged approach. In R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23, the Court of Appeal reconciled Taueki and Hessell and held at [60]:

Adapting the guidance given in R v Taueki, in light of this Court’s judgment in Hessell (CA) and the correction of that judgment in the Supreme Court’s judgment in Hessell (SC), the appropriate staged approach to sentencing is:

(a) Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.

(b) Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.

(c) Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 per cent prescribed by the Supreme Court in that judgment.

[23] Given the submission that the sentence is manifestly excessive, it is necessary to go through a sentencing exercise following the staged approach set out in R v Clifford to see what would have been an appropriate sentence range in the circumstances. Even if an error has been made, if the sentence is nonetheless within the appropriate range, then an appellate court will not interfere.

[24] Here, the choice of starting point was on the high side. In R v Pohe HC Auckland CRI-2006-404-294, 7 November 2006, Mr Pohe was sentenced on two charges of offering to supply the Class A drug, methamphetamine and four of supplying methamphetamine. Mr Pohe offered to supply half a gram and actually supplied two grams of methamphetamine to an undercover police officer. Allan J found that the offending was towards the bottom of band 1 of R v Fatu. This led Allan J to adopt a starting point of two years, six months’ imprisonment, having regard to the number of supply charges and the clear commercial element. This was then reduced to one year and nine months following allowance for guilty plea, remorse, and desire for rehabilitation. Leave to apply for home detention was declined.

[25] In this case, apart from the choice of starting point, which I consider to be on the high side, the approach taken by the Judge when it came to assessing the appropriate discounts for mitigating factors was unorthodox. Mitigating factors are usually discounted in percentages. Further, the usual approach is to allocate a percentage for each material mitigating factor, which are then added together. The reduction is then calculated by reference to the starting point and subtracted from the sentence. One of the benefits of sentencing in this staged way is that it necessarily turns the sentencing judge’s mind to all the material mitigating factors that are to be taken into account. It also informs other persons of the material mitigating factors that the judge took into account.

[26] In the present case, my reading of the sentencing notes informs me that the Judge took Mr Kane’s early guilty plea and his attempts at rehabilitation into account. Counsel were agreed for the purpose of the appeal that in percentage terms this came to 31 per cent.

[27] However, at the sentencing, Mr Kane’s counsel referred the Judge to other material mitigating factors. These were Mr Kane’s:

(a) Lack of relevant previous convictions (he has three traffic convictions and two convictions for breach of a local liquor ban);

(b) Young age (he is 21 years old); and

(c) Genuine remorse (this is described in the pre-sentence report and includes his understanding of the harm his offending has done to others).

[28] I note that each of these factors, as well as the early guilty plea, were also expressly identified in the pre-sentence report.

[29] In addition to this, there is Mr Kane’s co-operation with the Police. It was his ready admissions of supply of methamphetamine to others which enabled the Police to be able to include in the summary of facts the reference to Mr Kane having sold

one gram of methamphetamine a week before his arrest. The summary of facts reveals that Mr Kane made a truthful and full confession of his drug offending.

[30] The respondent attempted to argue that the Judge’s reference in [10] to “the steps which you have taken and the prospects of rehabilitation” went beyond attempts at rehabilitation and included Mr Kane’s remorse and the co-operation Mr Kane had given to the Police. I do not read [10] in that way. I consider that the better view is that the Judge had made express reference to Mr Kane’s attempts at rehabilitation without going further to assess and determine whether to pay regard to his genuine remorse, his age and his co-operation with the Police. I consider that the Judge must have overlooked these other mitigating factors. Had the Judge given consideration to these additional mitigating factors, I consider that he would have taken them into account, as there is no obvious reason for him not to do so. Regarding Mr Kane’s lack of relevant criminal history, I consider this is a neutral factor and it does not warrant inclusion as a mitigating factor.

[31] The respondent argued that Mr Kane’s age does not merit consideration. On

this point, the respondent relied on R v Mahoni (1998) 15 CRNZ 428 (CA).

[32] However, in Mahoni, the Court of Appeal was dealing with an appeal by the Solicitor-General against sentences for aggravated robbery, sexual violation by rape, oral sex and digital anal penetration on the grounds the sentences were manifestly inadequate. The majority of the appellants were 16 at the date of the offending and

17 when sentenced, with one being only 15 at the date of the offending.

[33] In regard to the issue of allowance for youth, the Court of Appeal found that the principle that youth may lead to a reduction in an otherwise appropriate sentence is not an absolute principle and that there are situations where it must yield to public interest. The Court also said that an allowance would be made more readily in a case having features encouraging leniency. None were found to be present in Mahoni.

[34] I find the converse here. There are features of this case that do encourage leniency, namely the age of Mr Kane and the steps that he has taken to rehabilitate himself in the light of his young age. Whilst I accept that 21 years old places him

outside the categorisation of a youth, nonetheless, the principle behind the policy of discounting for young age has some application to Mr Kane’s case. In Mahoni, the Court of Appeal said at 436:

The question of the allowance for the youth of the appellants is more difficult. The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established. See R v Titoko CA 114/96, 11 August 1996 where this Court drew attention to section 7 of the Criminal Justice Act and Article 37(b) of the United Nations Convention on the Rights of the Child. It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest. See for example R v Wilson [1989] 2 NZLR 308 ... where this Court upheld a sentence of 11 years on a 17 year old youth who together with another abducted a woman from a public toilet and committed acts of sexual violation. (Emphasis added)

[35] Whilst I accept the respondent’s submission that Mr Kane is not a youthful offender, I consider nonetheless that 21 years of age is a young age and the principle that the chance of rehabilitation should not be shut out and is relevant to his sentencing. Also relevant is that care needs to be taken to reduce the prospect of an offender emerging from prison a more hardened criminal than when he went in.

[36] Analogous to this principle is the principle expressed in Tarrant v Police HC Palmerston North CRI-2007-454-10, 14 May 2007 where MacKenzie J applied the principle identified by the Court of Appeal in R v Earle CA414/91, 9 March 1992 that where an offender is being sentenced to a custodial sentence for the first time, greater weight may be given to the statutory requirement to impose the least restrictive outcome that is appropriate.

[37] In Kaihau v Police [2012] NZHC 191 at [53]- [54], I referred to the principle applied by MacKenzie J in Tarrant and to the existence of academic opinion that holds that a sentence of imprisonment at an early stage of criminal offending can increase the likelihood of re-offending:

... There is a body of academic opinion that says that at a relatively early stage of criminal offending, the imposition of a sentence of imprisonment can increase the likelihood of reoffending, whereas a non-custodial sentence

will not do so. A commonly cited paper, “The Effects of Community Sanctions and Incarceration on Recidivism” (2002) by Gendreau, Goggin & Cullen, suggests that offenders released from prison are re-convicted at higher rates than offenders receiving community sentences. There are a number of variables at play in studies such as this, and usually offenders who receive sentences of imprisonment have more serious criminal histories than offenders who receive non-custodial sentences; so those factors may influence the results of studies such as these. Nonetheless, such studies serve to indicate the importance of giving thought to non-custodial sentences when there is a choice to be made.

[38] I consider that there were a number of factors that weighed in favour of giving greater weight to the principles expressed in ss 8(g) and 16 of the Sentencing Act 2002. These were:

(i) Age;

(ii) His genuine remorse;

(iii) His previous criminal history, which records that he has not faced any serious criminal penalty before, let alone a sentence of imprisonment.

[39] In addition to these factors, there were also the responsible and effective steps Mr Kane had taken to overcome his drug habit. This was substantiated by the report from the Hanmer Clinic, which had been treating his addiction. I consider that the combined weight of these factors supported some recognition of Mr Kane’s relatively young age, in addition to the steps he had taken towards his rehabilitation. Regarding the latter, I note that the Judge had available to him medical evidence that confirmed that Mr Kane was drug-free at the time of sentencing.

[40] In this case, the sentencing Judge had reached a discount of 31 per cent by taking into account Mr Kane’s early guilty plea and his attempts at rehabilitation. I consider the combined weight of the other factors that should have been taken into account would have taken the discount to beyond one-third and, consequently, even from the rather high starting point of three years’ imprisonment, brought Mr Kane to the point where he qualified for consideration for a sentence of home detention.

[41] Indeed, if the mitigating factors that I have identified (age, genuine remorse, co-operation with the Police) were given a one per cent recognition for each factor, it would have resulted in an overall discount of 34 per cent. I consider that the appropriate recognition would have been one to two per cent for each factor and so, at the least, the discount would have come to 34 per cent and, at best, a discount of

37 per cent.

[42] The next question is whether the Judge’s omission to follow an appropriately staged sentencing approach has resulted here in a sentence that is outside the appropriate range. On the approach that I have taken, the sentence would come down to two years, or just under two years. Here there is a significant difference between a sentence of two years or less and one of two years and one month’s imprisonment. That difference is in the eligibility of an offender to receive a sentence of home detention.

[43] If the circumstances are such that but for the error of approach, a sentence of two years’ imprisonment or less would have been reached, which in turn would have led to the imposition of a sentence of home detention, the result would make the actual end sentence of two years, one month’s imprisonment manifestly excessive. On the other hand, were I to decide that Mr Kane is not someone who should be considered eligible for a sentence of home detention, then I agree with the respondent that the difference between a sentence of two years’ imprisonment and two years, one month is not so great as to amount to the sentence imposed being characterised as manifestly excessive. In such circumstances, to interfere with the sentence imposed would be to do no more than to tinker with it.

[44] I now turn to consider whether a sentence of home detention would be suitable for Mr Kane. The pre-sentence report reveals that Mr Kane has taken genuine steps to rehabilitate himself. This would have been difficult for him, given his parents’ abuse of alcohol and illicit drugs. Had it not been for the sentence of imprisonment, he would have commenced an eight week intensive out-patient programme with the Hanmer Clinic in January of this year. Mr Kane’s medical practitioner and the Hanmer Clinic believed he was making good progress in his rehabilitation and that prison would be a retrograde step for him.

[45] Apart from two failures to report, he did successfully complete a sentence of community work for traffic offending, which shows that he will comply with Court imposed directions. He was assessed as being at low risk of re-offending.

[46] Mr Kane had provided a suitable address for home detention. I am informed that the address is still available.

[47] The principle in Tarrant and in Earle makes it clear that greater weight may be given to the statutory requirement to impose the least restrictive outcome that is appropriate when the imposition of the first sentence of imprisonment is being contemplated. Here, I consider that all the factors that I have identified support the conclusion that the least restrictive outcome is a sentence of home detention. When this is compared to the sentence of two years, one month’s imprisonment, that sentence clearly appears to be manifestly excessive.

[48] I am satisfied, therefore, that I should allow the appeal and quash the sentence of imprisonment. When it comes to the term of the sentence of home detention, I need to take into account the fact that Mr Kane has been in prison since

29 November 2011. That is just over three months’ imprisonment. The term of home detention needs to be adjusted to take this into account.

[49] The approach I took to determining whether or not a sentence of imprisonment for Mr Kane would have reached the two year threshold or less brought him to a sentence of somewhere between two years or 22 months’ imprisonment, depending on whether the total discount for mitigating factors was taken at 34 per cent or 37 per cent. A sentence of this nature, when translated into a sentence of home detention, would attract a term towards the uppermost end of that which is available for a sentence for home detention. But here, regard has to be paid to the time that Mr Kane has already served in prison. I consider, therefore, that a sentence that properly reflects the seriousness of the offending, and the involvement of low level commercial dealing in class A drugs, but at the same time gives due recognition to the mitigating factors and reflects the least restrictive outcome in the circumstances, is a sentence of 10 months’ home detention.

[50] Accordingly, I quash all sentences of imprisonment and replace them with concurrent sentences of 10 months’ home detention on each charge. The sentences of home detention are to have the following special conditions:

(i) Upon release from prison, Mr Kane is to proceed directly and immediately to 97A Sutherland Road, Tauranga, and there await the arrival of the probation officer and security officer;

(ii) To reside at 97A Sutherland Road, Tauranga, for the duration of home detention;

(iii) Not to purchase, possess or consume alcohol or any illicit drugs for the duration of home detention, nor to possess any equipment used for the consumption of illicit drugs;

(iv) To report to the probation officer as directed; and

(v) To undertake such drug counselling and treatment as directed by the probation officer, to the satisfaction of the probation officer and service provider, with the standard post-detention conditions and the following special post-condition:

(a) To undertake such drug counselling or treatment as directed by the probation officer, and undertake any other rehabilitative programme as may be directed by the probation officer.

Duffy J