YUSUF v DEPARTMENT OF CORRECTIONS [2023] NZHC 906

YUSUF v DEPARTMENT OF CORRECTIONS [2023] NZHC 906 [24 April 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000062[2023] NZHC 906BETWEEN ABDULAHI MOHAMED YUSUFAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 18 April 2023Appearances: O H Manaton and M J English for AppellantA N Dawson for RespondentJudgment: 24 April 2023JUDGMENT OF ANDREW JThis judgment was delivered by Justice Andrewon 24 April 2023 at 12 noonpursuant to r 11.5 of the High Court Rules 2016Registrar / Deputy RegistrarDate Introduction[1] The appellant, Mr Yusuf, pleaded guilty to one charge of breaching a conditionof intensive supervision1 in the Waitakere District Court. He was sentenced by hisHonour Judge T Singh on 8 February 2023 to an end sentence of 15 months intensivesupervision.2 The Judge cancelled the remainder of the appellant's outstandingsentence of intensive supervision (12 months), which had about two-and-a-halfmonths left to run.[2] Mr Yusuf appeals. He contends that the end sentence was manifestly excessiveon 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 theprevious sentence which was actually completed; and(c) the Judge made a material error by failing to adequately articulate howthe sentence was reached.[3] The Department of Corrections opposes the appeal. It contends there is nomaterial error in the District Court decision.Background facts[4] Mr Yusuf was sentenced to one year intensive supervision on 29 April 2022following convictions for:(a) Possession of cannabis;(b) Possession of cannabis for supply;(c) Possession of cannabis utensil; and1 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: Theprosecutor 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 2022Mr Yusuf was inducted into his sentence of intensive supervision. On five occasionsbetween 5 May 2022 and 15 September 2022, Mr Yusuf failed to report to hisprobation 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 forsentence in February 2022.The sentence imposed[7] In brief sentencing notes, Judge Singh indicated that sentences ofimprisonment and community detention were available to him. However, heconcluded that the imposition of a new sentence of intensive supervision was the mostappropriate.3[8] Judge Singh acknowledged Mr Yusuf may have complied with someconditions, but that appeared to be at his convenience. He reiterated that compliancewith all conditions is essential.4 The Judge noted that further non-compliance willlikely mean a stricter sentence, such a one of imprisonment.5[9] The Judge decided to cancel Mr Yusuf's existing sentence of intensivesupervision and to "reimpose the same sentence".6 However, the order for sentenceof 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 Act2011 (CPA).[11] Under s 250 of the CPA, an appeal must be allowed if the court is satisfied thatthere is an error in the imposed sentence and that a different sentence should beimposed.[12] In Tutakangahau v R, the Court of Appeal said that the concept of "manifestlyexcessive" continues to apply to appeals against sentence.7 The Court held that theappellate court's focus is on the sentence imposed rather than the process by which itwas reached.8 A Judge on appeal should not intervene where the sentence imposedwas within a range that could be properly justified by accepted sentencing principles.9Discussion[13] The reasons given by the learned District Court Judge were very brief. He didnot engage in the orthodox sentencing approach set out in Moses v R.10 However, asnoted above, the focus on appeal is on the sentence imposed rather than the processby which it was reached.[14] The critical issue to determine is whether the sentence imposed was manifestlyexcessive.[15] Where a person breaches a condition of intensive supervision, there can eitherbe an application to cancel or vary their sentence under s 54K of the Sentencing Act2002, or a charge can be brought under s 70A. Here, a charge was brought unders 70A, and no application was brought to vary his original sentence. As a result, it wasnot open to the Court to re-sentence the appellant on his original charges;11 the7 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 toa breach of home detention, ss 80F and 80S of the Sentencing Act 2002, which relate to homedetention, 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 errorby cancelling the original sentence of intensive supervision and re-imposing the samesentence.[16] I accept, in principle, the respondent's submission that the impact of a breachof conditions on whether a person was able in substance to complete their sentence ofintensive 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 whenit 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 errorfor the Judge to treat a sentence of intensive supervision as the obvious sentence toimpose in the circumstances.[18] I reject the appellant's submission that a conviction and discharge or an orderto come up for sentence if called upon would have been appropriate. The critical issueis whether the duration of the intensive supervision imposed was excessive.[19] The breach here was not significant enough to take the view that the appellanthad not substantially completed his original sentence, justifying the reimposition ofthe full 12 months of intensive supervision. I find that the sentence imposed, namely15 months intensive supervision, was manifestly excessive. It was, as contended bythe 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 andsuggest a pattern of non-compliance and general disregard for court processes. It iswrong to characterise the offending as "very limited non-compliance".[21] I have also had regard to the "On Strength" report that was available to JudgeSingh. That report records that Mr Yusuf was exited from CADS programmes (whichare 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 supervisionimposed 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 testfor cannabis on 29 November 2022.[22] The report ultimately suggests that Mr Yusuf may need more time in hissentence to complete his special conditions and address his offending needs. The PACreport also states that Mr Yusuf's ability to comply with his sentence of intensivesupervision has been unsatisfactory. The breaches meant that he has not engaged witha number of rehabilitative features of his sentence.[23] Given Mr Yusuf's drug and alcohol related offending, I accept Mr Dawson'ssubmission that the purpose of intensive supervision was to give Mr Yusuf the chanceto engage with community services to address his drug use. However, I find thatimposing a sentence of supervision of equal length to the original sentence is notrequired to achieve this purpose.[24] Having regard to all these factors, I conclude that an appropriate end sentencewould be a sentence of intensive supervision for eight months.Result[25] The appeal is allowed. The sentence of 15 months intensive supervision iscancelled and replaced with a sentence of intensive supervision for eight months.__________________________Andrew J