KHAN v DEPARTMENT OF CORRECTIONS [2018] NZHC 2897

KHAN v DEPARTMENT OF CORRECTIONS [2018] NZHC 2897 [8 November 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-328[2018] NZHC 2897BETWEEN MOHAMMED KHANAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 5 November 2018Counsel: P T Eastwood for AppellantH E Savage for RespondentJudgment: 8 November 2018JUDGMENT OF BREWER JThis judgment was delivered by me on 8 November 2018 at 3:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] Mr Khan appeals the refusal of Judge NJ Sainsbury to commute a sentence ofimprisonment to one of home detention.1 Mr Khan's principal argument is that JudgeSainsbury had previously granted Mr Khan leave to apply for home detention and so,once an address was found, the Judge had no discretion to refuse home detention atthat address.[2] In effect, this is an appeal against sentence. That is to say, Mr Khan is servinga short sentence of imprisonment and submits the District Court should have sentencedhim to a term of home detention once he had a suitable address.[3] I will allow Mr Khan's appeal if:2(a) for any reason, I find there is an error in the sentence imposed onconviction; and(b) a different sentence should have been imposed.[4] The main issue is whether Mr Khan's offending was such that it was an errorto sentence him to imprisonment and, instead, a different sentence should have beenimposed.Background[5] Mr Khan came before Judge Sainsbury for sentence on 26 April 2018.3 Thecharges were three charges of driving while disqualified, one charge of possession ofmethamphetamine, one charge of possession of a methamphetamine pipe, one chargeof breach of bail, two charges of breach of intensive supervision and one charge ofreceiving. These offences were committed in the period 15 June 2017 to 30 December2017. The sentence imposed by Judge Sainsbury was one year and eight months'imprisonment.1 Department of Corrections v Khan [2018] NZDC 21615.2 Criminal Procedure Act 2011, s 250.3 Police v Khan [2018] NZDC 8201.[6] Previously, on 23 January 2017, Mr Khan had been sentenced to two months'imprisonment on one charge of possession of methamphetamine, one charge ofpossession of utensils for using methamphetamine, two charges of driving whiledisqualified, one charge of breach of community detention, and three charges of failingto answer bail.[7] Further, Mr Khan had an extensive history of similar offending for which hehad received sentences less than imprisonment.Discussion[8] I do not understand Mr Eastwood to submit that, against this background, asentence of imprisonment was not available to the Judge. Mr Eastwood's submissionsgo to the effect of Judge Sainsbury granting leave to apply for home detention.Mr Eastwood's contention is that Judge Sainsbury granted Mr Khan leave to apply forhome detention and, once Mr Khan had a home detention address, Judge Sainsburyshould have granted his application and commuted the sentence to home detention.[9] I have no doubt that a sentence to a period of imprisonment was available toJudge Sainsbury and that, in the normal course of things, a sentence of home detentionwould have been inappropriate given Mr Khan's record of offending. However, JudgeSainsbury recognised that underlying Mr Khan's offending is his addiction tomethamphetamine:[13] There appears to be a significant drug issue. At this point, althoughthere is some realisation of how bad that is for him, he does not seem to beready to do too much about it. I have proposed putting off this sentence to givehim the opportunity to go into residential rehabilitation. In the end, he wantsto be sentenced today. That is his right.[14] If at some point in the future he finally decides the time is right to sortout his drug use, all and good. I hope it comes soon because at the moment heis simply facing longer and longer periods in prison.[10] Judge Sainsbury was prepared to take a rehabilitative approach to sentencingMr Khan. But only if Mr Khan could gain access to a residential rehabilitationprogramme:[18] Given the history of this matter and the factors discussed above, I donot consider it can be responsibly changed to home detention but I will grantleave to apply for home detention. I want to make clear the basis on which Iam doing that. The only reason I am leaving open the possibility ofsubstitution of sentence is if Mr Khan was going to go into residentialrehabilitation. If he was genuine about that and a place becomes available Iwould certainly look at that positively, but that is up to Mr Khan to sort thatout in due course.[11] This was a proper and balanced approach by Judge Sainsbury to a situationwhere drug addiction underlay offending and where the interests of the community, aswell as those of Mr Khan, would be advanced by his rehabilitation. There is absolutelyno doubt of the basis on which leave to apply for home detention was given.[12] Mr Khan's application for home detention came before Judge Sainsbury on9 August 2018. But, instead of a residential rehabilitation address, Mr Khan wantedto obtain a sentence of home detention to his father's address. Judge Sainsbury pointedout the reason why he had granted leave to apply for home detention, statedemphatically that Mr Khan's application did not come within the purpose, and refusedit. In effect, the Judge ruled that the father's address was not a suitable address.Decision[13] In my view, Judge Sainsbury was entitled to refuse Mr Khan's application. Ido not accept Mr Eastwood's submission that once leave is granted, the provision ofany address suitable for home detention takes all discretion away from the Court. Itdepends on what is meant by "suitable", and in any event the Judge retains a discretion.[14] Section 80I of the Sentencing Act 2002 provides:80I Leave to apply for cancellation of sentence of imprisonment andsubstitution of sentence of home detention in certain cases(1) This section applies if—(a) a court has sentenced an offender to a short-term sentence ofimprisonment; and(b) at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitableresidence had been available.(2) At the time of sentencing, the court must make an order granting theoffender leave to apply to the court of first instance for cancellationof the sentence of imprisonment and substitution of a sentence ofhome detention if the offender finds a suitable residence at a later date[15] In this case, Judge Sainsbury made clear that "suitable residence" meant aresidence at which a suitable drug rehabilitation programme was run.[16] Section 80K provides:80K Application for cancellation of sentence of imprisonment andsubstitution of sentence of home detention(1) An offender who is subject to a short-term sentence of imprisonmentand who has leave to apply for cancellation of a sentence ofimprisonment and substitution of a sentence of home detention undersection 80I may apply to the court at any time.(4) On application under subsection (1), the court may, if satisfied of thematters in section 80A(2), cancel the sentence of imprisonment andsubstitute a sentence of home detention[17] The requirements of s 80A(2) include the Court being satisfied that theproposed home detention residence is suitable. Suitability is not limited to technicalsuitability in the sense that electronic monitoring can take place effectively if anoffender is resident at the particular address. For example, commonly, an address maynot be suitable because of the characteristics of its occupants, or its proximity tovictims. In this case, Judge Sainsbury linked suitability to a residential drugrehabilitation programme.[18] Further, I agree with the view of Katz J in Gamble-Mackesy v Department ofCorrections, where her Honour found significant Parliament's use of the word "may"in s 80K(4):4[30] Parliament has, however, provided the re-sentencing judge with aresidual discretion to decline to substitute a sentence of home detention evenwhere the requirements of s 80A(2) are met. It has done this by providingthat, when considering an application to substitute a sentence of homedetention, the court may, (if satisfied of the matters in s 80A(2)) cancel the4 Gamble-Mackesy v Department of Corrections [2015] NZHC 1568.sentence of imprisonment and substitute a sentence of home detention. IfParliament had intended that judges considering such applications should nothave any discretion, provided the requirements of s 80A(2) were met, it wouldhave used the word "must" instead of "may" in s 80K(4).[19] It follows, that Mr Khan's appeal must fail for the following reasons:(a) His sentence to a short term of imprisonment is unexceptional given thecharges upon which he was sentenced and his previous record ofoffending. Judge Sainsbury made no error that should be corrected onappeal.(b) Mr Khan gained no right to a sentence of home detention because leaveto apply for that sentence was granted by Judge Sainsbury. The leavewas for a specific purpose of rehabilitation. The address whichMr Khan later used to found his application for home detention was nota suitable address as specified by Judge Sainsbury because it was notpart of a residential programme for rehabilitation. The Judge had adiscretion whether to grant home detention and he had a good reasonfor declining to do so.[20] The appeal is dismissed.________________________________Brewer J