DIXON v R [2019] NZHC 3294

DIXON v R [2019] NZHC 3294 [12 December 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-0099[2019] NZHC 3294BETWEEN NIGEL CALEB DIXON (AKAPUKATAWHERO WIKIRIWHIRIKIHANA)AppellantAND THE QUEENRespondentHearing: 12 December 2019Appearances: A S Burns for AppellantG Banuelos for RespondentJudgment: 12 December 2019JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 12 December 2019 at 5 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Gordon Pilditch, Crown Solicitor, RotoruaPhillips & Co Law, Rotorua[1] Mr Rikihana, also known as Mr Dixon, appeals against two decisions ofJudge Snell in the District Court at Rotorua, both on 11 October 2019.1[2] The first appeal is against the Judge's refusal to adjourn sentence to allowMr Rikihana to attend a rehabilitative program and the second against sentence itself.Background[3] Mr Rikihana, who is aged 33 or thereabouts, was for sentence on one chargeeach of robbery, unlawfully getting into a motor vehicle, being unlawfully in anenclosed yard, refusing a request for a blood specimen, possession of cannabis,careless driving and two charges of theft. Mr Rikihana committed this offending on9 March 2019, just four days after his release from prison for what the Judge describedas serious offending. Mr Rikihana's conviction for robbery resulted in a "second-strike", meaning that any sentence imposed must be served without parole.Mr Rikihana also has a lengthy (nine page) criminal history.[4] At sentencing the Judge had, amongst other things, a report prepared pursuantto s 27 Sentencing Act 2002, written by Mr Billy Macfarlane. Mr Macfarlane manageswhat he referred as to the "Pūwhakamua program", which he has formulated to assistMāori offenders, and apparently with considerable success. Mr Macfarlane'sassessment was that Mr Rikihana would benefit from his program. Mr Rikihanasought an adjournment of sentence so that he could attend the program.[5] However, were Mr Rikihana to attend the program, it would have beennecessary for the Judge to grant him EM bail. The Judge was not satisfied he coulddo so. The EM bail report stated that Mr Rikihana had a high risk of reoffending, wasat high risk of harm to others, and had a propensity to violence and substance abuse.In addition, Mr Rikihana would have been at the address with others, to whom theJudge considered Mr Rikihana a risk. Accordingly, and not without regret, the Judgedeclined to adjourn sentence so that Mr Rikihana could attend the program.1 Police v Dixon [2019] NZDC 20632.[6] As to the sentence itself, the Judge adopted a starting point of 31 months forthe robbery charge. He uplifted by four months for the other offending, deducted threemonths for remorse and a willingness to be involved in rehabilitation, a further twomonths to reflect factors in the s 27 report and a further five months for Mr Rikihana'sguilty pleas. These reductions brought the end sentence to 25 months, renderingMr Rikihana ineligible for home detention. That said, the Judge said he was notsatisfied he could impose an electronically monitored sentence, even if Mr Rikihana'send sentence had been 24 months or less.Submissions[7] Mr Burns, counsel for Mr Rikihana, submitted the Judge erred in failing toadjourn the sentence to allow Mr Rikihana to attend the Pūwhakamua program.Mr Burns also submitted that Mr Rikihana was entitled to a greater discount for hisguilty pleas. Had a greater discount been given, a sentence of home detention couldhave been imposed and served at Pūwhakamua.[8] The Crown submits that I do not have jurisdiction to entertain an appeal againsta Judge's refusal to adjourn sentencing if the appeal is brought after the offender hasin fact been sentenced.[9] Crown counsel also submits the Judge's sentencing was favourable toMr Rikihana and should not be disturbed.Discussion[10] It is unnecessary for me to determine the jurisdictional point raised by Crowncounsel. The Judge's reasons for declining EM bail pending sentence were valid andI am not persuaded he erred in that decision.[11] As to the sentence itself, Mr Burns accepted that the Judge had been generousto Mr Rikihana, but submitted the Judge ought to have granted a greater discount forthe guilty pleas, and had the Judge done so, Mr Rikihana would have been withinrange for a sentence of home detention.[12] I am not persuaded the Judge's discount for Mr Rikihana's guilty pleas wastoo modest and the sentence overall could only be described as extremely lenient. Itis the end sentence that counts on appeal, not the individual components.[13] Moreover, and as the Judge intimated, the reasons that led him to refuseEM bail would apply equally to consideration of home detention as a sentencingoption.[14] Lastly, I agree with the Judge that it is to be hoped Mr Rikihana has theopportunity to participate in Mr Macfarlane's program on his release. Unfortunately,that simply was not possible on this occasion.Result[15] The appeal is dismissed.Peters J