KADIR v NEW ZEALAND POLICE [2020] NZHC 1108

KADIR v NEW ZEALAND POLICE [2020] NZHC 1108 [26 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000075[2020] NZHC 1108BETWEEN NABIL KADIRAppellantAND NEW ZEALAND POLICERespondentHearing: 25 May 2020Appearances: H Redwood for AppellantS Murphy for RespondentJudgment: 26 May 2020JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 26 May 2020 at 3 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, AucklandCounsel:H Redwood, Barrister, Auckland[1] Following a Judge-alone trial in the District Court Judge B A Gibson foundMr Kadir guilty on a charge of burgling a residential address. In addition, Mr Kadirpleaded guilty to charges of receiving stolen property, driving whilst forbidden to doso and being in possession of cannabis and a methamphetamine pipe. He committedthose offences whilst on bail on the burglary charge.[2] On 12 February 2020 Judge Gibson sentenced Mr Kadir to 25 monthsimprisonment on all charges.1 Mr Kadir appeals against sentence on the basis thaterrors in the formulation of the sentence led to an end sentence that was manifestlyexcessive.The offending[3] Mr Kadir went to a residential property on the night of 13 June 2018. Heentered the property through a bathroom window and managed to move some itemsbefore one of the occupants became aware of his presence and raised the alarm.Mr Kadir fled from the scene without taking any property. He was subsequentlyarrested in mid-July 2018 and released on bail.[4] The receiving charge related to a stolen credit card found in Mr Kadir'spossession when he was arrested on an unrelated matter on 30 March 2019. The creditcard had been taken in a burglary of residential premises approximately a week earlier.He was also found in possession of a small amount of cannabis and amethamphetamine pipe.[5] The final charge related to an incident on 21 May 2019 when Mr Kadir wasfound driving a motor vehicle the registration of which had expired. He was unableto produce his driver's licence and told the police he had been forbidden to drive.Subsequent enquiries confirmed he had earlier been forbidden to drive until heobtained a driver's licence.1 New Zealand Police v Kadir [2020] NZDC 4732.The sentence[6] The Judge took a starting point of 19 months imprisonment on the lead chargeof burglary. He increased that by three months to reflect the charges to which Mr Kadirhad pleaded guilty. From the resulting sentence of 22 months imprisonment the Judgeapplied uplifts of three and two months respectively to reflect Mr Kadir's previousconvictions for burglary and the fact that the offending on 30 March and 21 May 2019had occurred whilst Mr Kadir was on bail on the burglary charge.[7] The Judge applied a discount of one month to reflect difficulties Mr Kadir hasfaced since his arrival in New Zealand from Ethiopia at seven years of age. He thenapplied a discount of a further month to reflect the guilty pleas entered on the chargesother than the burglary charge. This produced the end sentence of 25 monthsimprisonment.DecisionStarting point on burglary charge[8] On Mr Kadir's behalf Mr Redwood contends the starting point of 19 monthsimprisonment the Judge adopted on the burglary charge was too high. He has referredme to other cases that he says involve more serious offending than that in the presentcase.2 The starting points adopted in those cases has been around 18 monthsimprisonment. Mr Redwood contends a starting point of 15 months imprisonmentwas appropriate to reflect the burglary charge in the present case.[9] As the Judge correctly observed, however, the starting point for the sentenceto be imposed on a charge of burglary of residential premises will be between18 months and two years six months imprisonment.3 The other cases to whichMs Redwood has referred demonstrate that a starting point of around 18 monthsimprisonment will be appropriate for a burglary broadly of the type Mr Kadircommitted. Any attempt to demonstrate the starting point in the present case was toohigh by making fine factual distinctions between this case and others like it is an2 Wilson v R [2012] NZHC 65; Brown v Police [2017] NZHC 1846; Bates v R [2016] NZCA 456.3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].exercise having little utility. Given the available range I do not see how it can seriouslybe argued that the starting point of 19 months imprisonment was too high.Uplift for other offences[10] Mr Redwood contends the uplift of three months the Judge applied to reflectthe remaining offences was too great. He points out that the charge of driving whilstforbidden was punishable only by fine. In addition, the proviso to s 7(2)(b) of theMisuse of Drugs Act 1975 directs the Court not to impose a custodial sentence oncharges relating solely to Class C controlled drugs unless, by reason of the offender'sconvictions or of any exceptional circumstances relating to the offence or the offender,a custodial sentence is appropriate.[11] Mr Redwood points out that the Court of Appeal has observed that the provisoto s 7(2)(b) requires a sentencing Judge to step back and assess the significance of anoffender's cannabis offending.4 It has also observed that a sentence of imprisonmentwill not necessarily be appropriate merely because the offender is being sentenced toimprisonment on other charges.[12] In the present case I consider these issues are of academic interest only.Mr Kadir has two previous convictions for being in possession of cannabis. He wassentenced on those charges in 2015 and 2017. The fact that Mr Kadir was again foundin possession of cannabis in March 2019 means a modest uplift was appropriate.[13] I accept the Crown's submission that, although it may be regarded as stern, theuplift applied to reflect the remaining charges was not outside the available range.Uplift for previous convictions[14] Mr Redwood contends the uplift of three months to reflect previousconvictions for burglary was too high. That submission needs to be measured againstthe fact that it represents an uplift on the burglary charge of approximately 15 per cent.Mr Kadir has three previous convictions for burglary and received a sentence of twoyears imprisonment on those and other charges in May 2017. This Court would not4 Murray v R [2015] NZCA 538 at [14].normally regard an uplift for recent previous convictions for offending of a similarnature to be excessive unless it is significantly greater than the margin applied by theJudge in the present case. I therefore do not consider the uplift to reflect previousconvictions was excessive.Uplift for offences committed whilst on bail[15] Mr Redwood contends the uplift of two months to reflect this factor wasexcessive. I accept this submission because it constituted an uplift of approximately66 per cent on the sentence imposed on the charges to which it applied. It meansMr Kadir received a total sentence of five months imprisonment on those charges andI consider this was too high. An uplift of no more than one month would have beenappropriate to reflect the fact that the offending occurred whilst Mr Kadir was on bail.Was the end sentence of 25 months imprisonment manifestly excessive?[16] Reduction of the sentence by one month would bring the sentence down to 26months imprisonment before taking into account mitigating factors. Mr Redwooddoes not quarrel with the discounts the Judge applied to reflect these. They wouldreduce the end sentence to one of 24 months imprisonment.[17] Ordinarily this Court would not interfere with a sentence of around two yearsimprisonment where it is just one month longer than it ought to have been. Such asentence would not normally be regarded as manifestly excessive and any reductionwould rightly be regarded as tinkering. In the present case, however, a reduction ofone month produces two significant practical consequences. First, it means Mr Kadirwould be automatically released after serving one-half of the sentence rather thanhaving to apply for parole after serving one-third of the sentence. Secondly, it reducesthe sentence to the point where home detention can be considered. Given thoseconsequences I consider appellate intervention is justified. Ms Murphy did not argueto the contrary on the Crown's behalf.Result[18] The appeal against sentence is allowed. The sentence of 25 monthsimprisonment imposed on the burglary charge is quashed and a sentence of 24 monthsimprisonment is imposed in its place. All other concurrent sentences remain intact.[19] At the time of sentencing Mr Kadir did not have an address at which he couldserve a sentence of home detention. That remains the position. There is therefore noutility in granting Mr Kadir leave under s 80I of the Sentencing Act 2002 to apply forthe sentence to be converted to one of home detention should a suitable addressbecome available.Lang J