PHILLIP KAUKASI v NEW ZEALAND POLICE [2017] NZHC 2396

PHILLIP KAUKASI v NEW ZEALAND POLICE [2017] NZHC 2396 [29 September 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000315[2017] NZHC 2396BETWEEN PHILLIP KAUKASIAppellantAND NEW ZEALAND POLICERespondentHearing: 29 September 2017Appearances: R Mansfield for AppellantN Fletcher for RespondentJudgment: 29 September 2017JUDGMENT OF VENNING JSolicitors: Kayes Fletcher Walker, ManukauCopy to: R Mansfield, Auckland[1] The appellant Phillip Kaukasi pleaded guilty to two charges – possession ofmethamphetamine for supply and possession of utensils. Judge A M Wharepourisentenced him to two years' imprisonment on the possession for supply charge andone month concurrent on the utensils charge.1 Mr Kaukasi appeals against thesentence.Background[2] On 7 August 2016 the Police located a Puma bag which had been left on theroof of a Nissan car, registration HJE551 in Weymouth. In attempts to locate theidentification of the owner of the bag the Police identified items of interest about thecar including crystals which were believed to be methamphetamine and some scales.When the bag was searched further a forklift ID for Mr Kaukasi was discovered, alongwith 11.45 grams of methamphetamine, a pipe and scales. Following inquiries thePolice then executed a search at the appellant's home in Manurewa. There they locateda further 0.59 grams of methamphetamine, another pipe, scales, and $1,300 in cash.When spoken to the defendant admitted the methamphetamine and methamphetaminepipe in the house and the car were his.[3] Mr Kaukasi was subsequently charged. On 11 April 2017 the Judge gave MrKaukasi a sentence indication.2 The Judge indicated he would adopt a starting pointof three years' imprisonment and discount that by 25 per cent to reflect guilty pleas.That would leave an end sentence of two years, three months' imprisonment. TheJudge then went on to say:[2] There is scope there for additional discounting to reflect othermitigating circumstances that could theoretically get him to two years'[sentence] but I would make no promises about the prospects of that. Muchwould depend on a positive pre-sentence report together with other additionalinformation about the efforts Mr Kaukasi has gone to to rehabilitate himselfbeyond that of the eight week Getting Started Group.[4] Mr Kaukasi has previous convictions although none for drug offending.Significantly he was convicted of manslaughter in September 2002, the offending1 New Zealand Police v Kaukasi [2017] NZDC 20716.2 New Zealand Police v Kaukasi DC Manukau CRI-2016-092-010492, 11 April 2017.having occurred in September 2001 when he would have been aged 16. At that timehe was sentenced to 12 years' imprisonment.[5] The pre-sentence report confirms that Mr Kaukasi is now 32 years old and thathe resides together with his partner and three children. He was working for a companyin the warehousing area. The report-writer noted that following his release MrKaukasi said he found it hard. It took him some time to get used to living in the outsideworld. Some of the methamphetamine was for personal use, but some was suppliedto others. Mr Kaukasi told the report-writer he sold methamphetamine to family andfriends to pay rent and bills. He regretted his actions, although in the view of thereport-writer, much of the remorse was directed at his predicament. However, MrKaukasi had made a number of positive steps and as a result of that therecommendation in the pre-sentence report was home detention. In addition MrKaukasi had completed a number of courses offered by the Family Start programme,CADS and Emerge Aotearoa. While he had exited from the Emerge Aotearoa coursecounsel submitted the level of disengagement was as a result of his work commitmentsand the loose structure of the provider's course. Prior to that Mr Kaukasi hadmaintained efforts with the other agencies.[6] In imposing the sentence the Judge extended a further discount of three monthsto bring the end sentence down to two years' imprisonment. However, he was notprepared to commute the sentence to one of home detention. He said:[11] The issue then becomes whether that sentence should be commuted toa sentence like home detention. That issue is resolved by considering therelevant sentencing principles and considering the overall seriousness of youroffending. In my view your offending is just too serious that a community-based sentence should be substituted for a term of imprisonment.[7] Mr Kaukasi appeals. In support of the appeal Mr Mansfield's submission isthat the sentencing Judge erred in determining the sentence of home detention wasinappropriate on the ground the offending was too serious, particularly given theindication the Judge had previously given Mr Kaukasi at the sentence indicationhearing.[8] Counsel for the respondent has acknowledged today the force of thesubmissions made on the part of the appellant. However, ultimately it is a decision forthe Court.[9] The Judge's sentence was the exercise of a discretion and usually appellatecourts defer on the issue of whether or not imprisonment should be imposed asopposed to home detention.3[10] It is for the appellant to satisfy this Court that there has been an error in thesentence imposed and that a different sentence should be imposed.4[11] At first reading the sentence of two years' imprisonment for drug offending ofthis nature would normally be beyond challenge. However, there is a particular featureof this case which supports the appeal as argued for by Mr Mansfield and as properlyacknowledged by Mr Fletcher for the Crown.[12] Having arrived at an end sentence of two years' imprisonment home detentionwas a proper consideration for the Judge. While there is no presumption whetherimprisonment or home detention is to be preferred5 the Court is required to carry outa consideration of all relevant ss 7 and 8 purposes and principles.6 An assessment thatfocuses only on one purpose, such as deterrence or seriousness of the offending, forexample, to the exclusion of others will amount to an error of law.7[13] In the present case it appears from the Judge's sentencing notes that he rejectedthe possibility of home detention as he considered the nature of the offending to be tooserious. He was no doubt influenced by s 6(4) of the Misuse of Drugs Act. But thatconsideration is only one of the considerations for the Judge. While the Judge didrefer to taking all relevant matters into consideration it is with respect not apparentthat that was the case.3 Te Aho v R [2013] NZCA 47 at [30].4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 R v Vhavha [2009] NZCA 588 at [13]6 James v R [2010] NZCA 206.7 Fairbrother v R [2013] NZCA 340, at [30] referring to Manikpersadh v R [2011] NZCA 452at [17].[14] The position is exacerbated by the Judge's remarks at the sentence indication.While the Judge did say he made no promises he did refer to the possibility ofeligibility for an electronically monitored sentence following that with the commentthat "much would depend on a positive pre-sentence report". As I read the notes as awhole that was a distinct reference to the possibility of both a reduction in sentenceand home detention being dependent on a positive pre-sentence report.[15] The appellant Mr Kaukasi responded to the sentence indication to the extentthat he received a generally positive pre-sentence report which recommended homedetention. Further, he had attended courses to address his drug use. He couldreasonably have expected in the circumstances that if the Judge was going to imposea sentence other than home detention he would give further reasons for doing so givingthe possibility held out in the sentence indication. The seriousness of the offendinghad not changed from the date the sentence indication had been given to the date ofsentence. If the offending was too serious to allow home detention that should nothave been held out as a possibility.[16] In this case the appellant's personal circumstances required carefulconsideration. Given his lengthy incarceration at the age of 17 for serious offendingcommitted at 16 and the fact that he has not offended since release the Judge wasrequired to consider in particular the need to assist his continued rehabilitation and re-integration into the community, particularly bearing in mind he had employment at thetime. Further, the least restrictive outcome appropriate in the circumstances in thiscase supported the imposition of home detention.Result[17] For the reasons given above I am satisfied that the Judge fell into error in thesentencing process by focusing on the serious nature of the offending and theconsequent need for deterrence without giving proper consideration to the otherrelevant considerations particular to this case.[18] Looking at the matter afresh I am satisfied that in the particular circumstancesof the case, the appropriate sentence was one of home detention.[19] Given that Mr Kaukasi has been in prison since 14 September 2017 for twoweeks or so, the appropriate sentence in my view is a home detention sentence for 11months.Result[20] The appeal is allowed. The sentence of imprisonment of two years is quashed.In its place Mr Kaukasi is sentenced to 11 months' home detention. He is to serve thatsentence of home detention at [redacted]. He is, when released from prison, to traveldirectly to [redacted] and remain at that address to meet the supervising probationofficer and field officer. He is not to possess, consume or use any alcohol or drugsother than drugs prescribed. He is to attend an assessment for any other programmethat may be directed by his probation officer and he is to attend and complete anycounselling treatment or other such programme as recommended by the assessment asdirected by and to the satisfaction of a probation officer.__________________________Venning J