KOMENE v NZ POLICE [2019] NZHC 1651

KOMENE v NZ POLICE [2019] NZHC 1651 [17 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000115[2019] NZHC 1651BETWEEN JAVARN KOMENEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 July 2019Appearances: J F O'Halloran for the AppellantK Fitzgibbon for the RespondentJudgment: 17 July 2019JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 17 July 2019 at 2:30 pmRegistrar/Deputy RegistrarDate:Solicitors: Public Defence Service (J-F O'Halloran), AucklandMeredith Connell (Office of the Crown Solicitor), Auckland[1] On 28 February 2019, Javarn Komene was sentenced on two charges ofburglary, one charge of intentional damage and one charge of possession ofmethamphetamine for supply in the Auckland District Court by Judge R G Ronayne.He had pleaded guilty to all charges. On the lead charge of possession ofmethamphetamine for supply, Mr Komene was sentenced to three years and sevenmonths' imprisonment. He now appeals against sentence on the basis that it ismanifestly excessive. The primary issue on appeal is whether Mr Komene shouldhave been given credit for his rehabilitative efforts, in particular, his 10 monthparticipation in the Alcohol and Other Drug Treatment (AODT) Court.Facts[2] The first burglary occurred on 31 May 2017. On that date, the occupier of thehouse left his home in the morning locked and secured. At about 12.30 pm theappellant and an unidentified associate walked on to the property and knocked on thefront door. He and his associate then walked around the house and smashed a bedroomwindow at the rear of the property. The appellant reached through, opened the windowand entered the house. The appellant and his associate conducted a search of the houseand removed a large number of electronic items, jewellery and cash. The propertytaken was valued at $8,482. The uninsured loss to the victim was $600.[3] The second burglary occurred on 26 June 2017. Again, the occupier of thehouse left his home secured. The appellant and an associate entered the property andused a crowbar to force entry into the house. Once inside, the appellant and hisassociate rummaged through multiple rooms, placing items of property intobackpacks. The police arrived. They saw the appellant leaving the property with abackpack. The appellant fled on foot, was chased through multiple properties andeventually apprehended.[4] The charge of wilful damage arose on 19 November 2017, when the appellantwas arrested for breaching bail and he was held in a room at the Manukau PoliceStation Custody Suite. The appellant tampered with a sprinkler in his cell, which wasactivated. As a result, the entire cell was flooded. The Fire Service had to be calledout.[5] The last charge to which the appellant had pleaded guilty was possession ofmethamphetamine for supply on 7 August 2018. On that date, the appellant was apassenger in a motor vehicle which was involved in a police pursuit. The pursuit ledthe police across the wider Auckland area. At around 10.00 pm that evening thevehicle came to a stop and the appellant was arrested. A subsequent search located7.63 grams of methamphetamine in the appellant's possession. Also located in theappellant's possession was about $8,000 in cash, a set of electronic scales and a largenumber of unused plastic point bags.[6] After entering pleas of guilty to both charges of burglary on 5 October 2017,the appellant was accepted into the AODT Court on 16 November 2017, before beingexited from that Court initially on 23 August 2018 and then finally on 25 October2018.District Court decision[7] After reviewing the summaries of fact in relation to the four charges and theappellant's procedural history, the Judge referred to the appellant's list of previousconvictions before citing from a pre-sentence report. The Judge noted the opinion ofthe report writer that the appellant's lifestyle and substance issues had become moreentrenched and that he was described as being at high risk of further offending andhigh risk of harm to others, with a low motivation to change.[8] The Judge dealt first with the two burglaries and said that if he was dealingwith those separately he would adopt a starting point of 20 months' imprisonment,which he would uplift by six months because of the appellant's previous convictions.The Judge then referred to the charge of possession of methamphetamine for supplyand expressed the view that it was a clear inference that sales had taken place becauseof the $8,000 cash found on the appellant. The Judge took a starting point for thatoffending of two years and six months' imprisonment, which he reduced by six monthsto two years' imprisonment on account of totality. Adding the term of two years to theearlier term of two years and six months, he came to a total term of imprisonment of54 months or four years and six months. From that, the Judge said that the appellantwas entitled to 20 per cent discount for his guilty pleas, which brought the term of54 months' imprisonment down to one of 43 months or three years and seven months'imprisonment. The Judge, accordingly, sentenced the appellant to three years andseven months' imprisonment on the charge of possession of methamphetamine forsupply and one year and four months' imprisonment on each of the burglary charges.On the wilful damage charge, the appellant was convicted and discharged.Approach on appeal[9] Section 250(2) of the Criminal Procedure Act 2011 provides that an appealagainst sentence must be allowed if there has been an error in the sentence imposedand a different sentence should have been imposed. According to the Court of Appealin Tutakangahau v R,1 an appellant must show that an error occurred in sentencing andthat this error resulted in a sentence that was outside the range that could properly bejustified by accepted sentencing principles.[10] However, in exceptional cases, it may nonetheless be necessary to correct asentence that is within the range (for example, where there is an arithmetical error).2Appellant's submissions[11] On 16 November 2017, the appellant was accepted into the AODT Court. Atthe time he had pleaded guilty to the two burglary charges. When he was charged withwilful damage on 20 November 2017, he promptly pleaded guilty to that as well. On7 August 2018, following ten months' participation in the AODT Court, the appellantwas charged with possession of methamphetamine for supply and was remanded incustody. On 23 August 2018, the appellant was initially exited from the AODT Court,but following a hearing on 6 September 2018 to reconsider his participation, theAODT Court allowed the appellant to remain.[12] On 25 October 2018, at a hearing in the AODT Court, the appellant was finallyexited due to a number of other charges being laid in the Waitakere District Court. TheWaitakere District Court charges are not part of this sentence.1 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.2 At [36].[13] The appellant submitted that he should have received a discount for his effortsat rehabilitation between 16 November 2017 and 25 October 2018. In that time, heappeared in the AODT Court every two or three weeks, with written reports providedon his progress. He was tested for alcohol and drug use two to three times a week andrecorded eight months and seven days abstinence during this period. He also attended69 Narcotics Anonymous or Alcohol Anonymous meetings and completed a numberof programmes through the Court.[14] The appellant submitted that a discount for his rehabilitative efforts shouldhave been given. He submitted the Court of Appeal has held that a discount isavailable where rehabilitative efforts have been made. Discounts of up to 40 per centhave been afforded for offenders who have completed intensive rehabilitationprogrammes and made real and significant changes as a result. Although he wasultimately unsuccessful in completing his rehabilitative programmes, the appellantsubmitted that he made significant efforts over a substantial period of time towardsgenuine rehabilitation and this demonstrated he had a capacity for rehabilitation.[15] Accordingly, the sentence imposed was manifestly excessive as the Judge didnot give a discount for the appellant's rehabilitative efforts.Respondent's submissions[16] The respondent submitted that a discount for rehabilitative efforts was notappropriate in the circumstances. The respondent acknowledged that Judges areentitled to grant a discount for rehabilitative efforts carried out through the AODTCourt, even if the defendant was exited from the programme early. However, any suchdiscount must be weighed against the other relevant principles and purposes ofsentencing. Denunciation and deterrence generally take precedence over personalcircumstances when sentencing for commercial drug offending.[17] Judge Ronayne was well aware of the appellant's rehabilitative efforts in theAODT Court. He also considered the appellant's letter, certificate of completion andpre-sentence report. The Judge concluded that the appellant's letter was "situational"and commented that he read it with "some considerable scepticism".[18] The respondent submitted that the Judge was not required to afford a discountfor rehabilitation in the circumstances. Nine months into his AODT Court programme,the appellant was found in possession of 7.63 grams of methamphetamine, $8,000cash, electronic scales and a large number of unused plastic point bags. Any discountthe appellant may have earnt in the AODT Court was negated by his decision to sellmethamphetamine. This is different to cases where a defendant made genuinerehabilitative efforts and then relapsed by beginning to use drugs again to his or herown detriment. The respondent submits there was no error in sentencing and the endsentence was not manifestly excessive.Discussion[19] The primary issue in this appeal is whether the appellant should have beengiven a specific credit for his rehabilitative efforts, in particular, his 10 monthparticipation in the AODT Court. A secondary issue relates to the Judge's calculationof the final sentence.[20] While there is no doubt that credit and substantial credit can be given forrehabilitative efforts, the availability and extent of any credit depends upon individualcircumstances. If the appellant had successfully completed the AODT programme, hewould have received substantial credit. If he had relapsed or absconded withoutcompleting the programme, then he may still have received some credit, depending onthe extent of his continuing rehabilitative efforts.[21] Here, however, and as the AODT Judge herself noted when the appellant wasfirst exited from the AODT Court, the appellant had been charged with possession ofmethamphetamine for supply, which was a type of offending which undermined theAODT Court as a whole. The key issue for her was that the offending was notcommitted under the influence of alcohol or drugs, nor in pursuit of it.[22] Although the appellant was briefly readmitted to the AODT Court for a monthor so, he was again exited when he was charged with five charges of using a firearmagainst a law enforcement officer, two charges of aggravated robbery, one charge ofbeing an accessory after the fact to aggravated robbery, one charge of assisting escape,one charge of failing to stop, one charge of reckless driving, one charge of unlawfulpossession of a firearm, and one charge of doing a dangerous act with intent to injure.[23] The pre-sentence report dated 5 February 2019, assessed the appellant as a highrisk of further offending and a high risk of harm towards others, with low motivationto change. The appellant told the report writer he was using as muchmethamphetamine as he could on a daily basis.[24] In those circumstances, the appellant is not entitled to any credit for his failedrehabilitative efforts, largely because of his poor present attitude and continuingoffending. The appellant did not present to the report writer with any particular insightinto his anti-social lifestyle and drug use.[25] The secondary issue has more merit. The original sentencing notes, the Judge'shandwritten notation on the charging document and the appellant's criminal historyall record a sentence of three years and seven months' imprisonment on the charge ofpossessing methamphetamine for supply. In fact, as the Judge himself realised whenlater reviewing his sentencing notes, he made an arithmetical error in calculating thefinal sentence. He had settled on a starting point for the burglaries of 26 months.However, when adding that sentence to the two years he had settled on for thepossession of methamphetamine for supply, he inadvertently converted 26 months totwo years and six months (30 months), when it should have been two years andtwo months (26 months). The end sentence should, therefore, have been three yearsand four months' imprisonment, being 26 months (burglaries) + 24 months (drug forsupply), equalling 50 months, less 10 months (20 per cent credit for guilty plea),equalling 40 months or three years and four months' imprisonment.[26] As noted by the Court of Appeal in Tutakangahau, whilst an appellate courtwill not ordinarily intervene where the sentence is within range that can properly bejustified, in exceptional circumstances it may, nonetheless, be necessary to correct asentence that is within range (for example, where there has been an arithmetical error).The appeal is therefore allowed. The sentence of three years and seven months'imprisonment on the charge of possession of methamphetamine for supply is quashedand replaced by a sentence of three years and four months' imprisonment.________________________________Woolford J