PAHI v NZ POLICE [2018] NZHC 2629

PAHI v NZ POLICE [2018] NZHC 2629 [9 October 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-65[2018] NZHC 2629BETWEEN KAHU KEWENE PAHIAppellantAND NEW ZEALAND POLICERespondentHearing: 4 October 2018Appearances: A N D Garrett for AppellantC J Boshier for RespondentJudgment: 9 October 2018JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] Mr Pahi pleaded guilty to a long list of charges: receiving, possessionof cannabis, possession of utensils, possession of ammunition, possession ofmethamphetamine, careless driving, aggravated driving while disqualified, failing toanswer to bail, beach of release conditions, and two charges of failing to appear.[2] On 22 May Judge Kellar sentenced him to one year and nine monthsimprisonment.1 Mr Pahi appeals that sentence, saying it is manifestly excessive, andthat home detention is the appropriate sentence.1 Police v Pahi [2008] NZDC 10498.The offending[3] The cannabis, methamphetamine, utensils and ammunition charges arose whenPolice went to an address on an unrelated matter in June 2017 and found these itemsin Mr Pahi's possession. The Police also seized two earrings and a diamond ring thatMr Pahi was wearing. They had been stolen six weeks before, and their combinedvalue was $14,799. Mr Pahi said he had bought them for $100 each, and knew thatthey were worth over $6,000 because he had seen a receipt. He was charged withreceiving on the basis that he was reckless as to whether they were stolen.[4] In September 2017, Mr Pahi was driving a motorcycle in wet conditions. Helost control and crashed through a fence. He was disqualified from driving at the timehaving been disqualified from driving following a previous driving while disqualifiedcharge. The most recent driving while disqualified conviction is Mr Pahi's sixth ofthat kind.Sentencing[5] The Judge referred to the pre-sentence report which, while assessing Mr Pahiat a high risk of reoffending, noted that he is highly motivated to reform. Mr Pahi has"left the gang life" and feels he has got over his cycle of offending. His Honour notedfactors underlying Mr Pahi's offending include drug use, poor decision making, andassociation with others who commit offences.[6] The Judge also noted that while Mr Pahi's mother was happy to have him ather address on an electronically monitored sentence, Oranga Tamariki and the Policehave concerns. Mr Pahi has a daughter, and he indicated to the pre-sentence reportwriter that he very much wanted to be a part of her life.[7] The Judge took a starting point of nine months for the receiving charge, anduplifted that by 10 months for the driving while disqualified charge, which reflectedMr Pahi's long history of that kind of offending. To that he added two months for thebreach of release conditions, and a further two months for the ammunition and drugscharges.[8] The Judge said he was not applying an uplift for previous convictions giventhat the current offending was not as serious as that previous. However, a further twomonth uplift was adopted because the first set of offending occurred while Mr Pahiwas on bail. That resulted in a final starting point of 27 months. A six month discountwas applied for guilty pleas, leading to a final sentence of 21 months.[9] The Judge declined to grant home detention, saying such a sentence would notachieve relevant sentencing objectives.Jurisdiction and approach to appeal[10] Mr Pahi appeals as of right.2 This Court can only allow the appeal if it issatisfied that there is an error in the sentence imposed and that an alternative sentenceshould be imposed.3 If the sentence under appeal is justified having regard to relevantsentencing principles, this Court will not substitute its own views for those of thesentencing Judge. The sentence must be either manifestly excessive or inappropriatebefore departure from the sentencing Judge's exercise of discretion.Submissions[11] Mr Garrett for Mr Pahi takes no issue with the term of imprisonment imposed.The sole ground of appeal is that the Judge should have imposed a sentence of homedetention.[12] Mr Garrett submits that although the combined effect of the appellant'soffending fully justified a firm custodial response, there were indicators available tothe Court that a rehabilitative stance was worth taking. He says that Mr Pahi has asupportive family network, and became addicted to opioid drugs after a motocrossaccident but is now willing to undertake treatment. He refers to the probation reportwhich he says is "cautiously optimistic" about Mr Pahi's rehabilitative prospects, andthat a drug rehabilitation programme could be undertaken under home detentionconditions.2 Criminal Procedure Act 2011, s 244.3 Criminal procedure Act 2011, s 250.[13] Mr Pahi has written from prison. He says he has had a lot of time to think, toparticipate in courses, and read self-help books. He says he has "hit a cross-road" inhis life, and asks the Court to 'meet him half way' by allowing a more effectiverehabilitative sentence. He says he feels like "a victim of the system", and that therecould have been a better outcome for him.[14] For the Crown Ms Boshier submits the Judge made no error and givenMr Pahi's recidivism, imprisonment was the least restrictive sentence available.Mr Pahi has previously received sentences of imprisonment for disqualified drivingand dishonesty offending, and as such a lesser sentence would not adequately meet thepurposes and principles of sentencing. Further, having been released on 13 June 2017,he offended while under release conditions. Despite all that he is doing well in hisrehabilitation and the Crown gives him credit for that.Discussion[15] The Court of Appeal has stated that in an appeal against a refusal to grant homedetention, should focus on the identification of error, having regard to thediscretionary nature of the decision.4 Where all relevant factors have been taken intoaccount, the weight a Judge attaches to a particular factor is not a basis to challengethe exercise of discretion.5[16] In my view, there is no error in the sentence imposed. Indeed, Mr Garrettconcedes that a "firm custodial response" was "fully justified". It is difficult in light ofthat submission to see how this Court could, within its remit on appeal, disturb thesentence, although if what Mr Pahi says is proven in time, that he is on a pathway tothe end of his offending, then the Court should at least endorse what would be a realseachange in his life.[17] The District Court Judge's discussion of home detention in the sentencing notesis brief, and simply states that the purposes and principles of sentencing would not bemet by such a sentence. The Judge had highlighted the need to hold Mr Pahi to account4 Doolan v R [2011] NZCA 542 at [39].5 McConnel v R[2013] NZCA 303 at [15].to promote a sense of responsibility in him, and to provide a deterrent "to ensure thispattern of offending comes to an end". The Judge was entitled to reach the view thatimprisonment was necessary for those ends. It would be unusual for a recidivistoffender to receive home detention when sentences of imprisonment have beenimposed for similar offending. Accountability and deterrence will often involveincreasing sentences, the longer the pattern of offending continues. Having said that,there is no presumption in favour of imprisonment over home detention (or viceversa),6 and a sentence of home detention could have been imposed. That does not,however, after the fact that the sentence imposed was firmly within the discretionavailable to the Judge.[18] I accept that the information before the Court shows Mr Pahi has rehabilitativepotential. He is making all the right responses and seems to be participatingsuccessfully in programmes in prison. While this is encouraging, and is relevant tothe question of home detention, the Judge was clearly alive to this and brought it toaccount in making his decision.7 This is not a long sentence and Mr Pahi it seems iswell on the way to breaking the cycle of offending, and the Court commends him forthat.Conclusion[19] There was no error in the sentence imposed. The appeal is dismissed..Nicholas Davidson JSolicitors:Raymond Donnelly & Co., ChristchurchA N D Garrett, Barrister, Christchurch6 Manikpersadh v r [2011] NZCA 452.7 At [9].