ALI v POLICE [2017] NZHC 2869

ALI v POLICE [2017] NZHC 2869 [22 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000335[2017] NZHC 2869BETWEEN SHAFEEZ SHAZIL ALIAppellantAND NEW ZEALAND POLICERespondentHearing: 20 November 2017Counsel: RN Roy for AppellantZR Hamill for RespondentJudgment: 22 November 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 22 November 2017 at 11 am.Registrar/Deputy RegistrarSolicitors:Public Defence Service, Manukau.Kayes Fletcher Walker, Manukau.The issue[1] This is a sentence appeal in relation to a term of 18 months' imprisonment.The primary offence is receiving stolen property. On behalf of Mr Ali, Mr Roycontends the sentence is manifestly excessive as Judge McNaughton adopted a startingpoint beyond the available range. Mr Roy also contends the Judge erred by failing togrant leave for Mr Ali to apply for home detention, or by not imposing that sentence.For the respondent, Ms Hamill resists these contentions.Background[2] At 4.43 am on 8 May 2017, Police found Mr Ali asleep in a car. It had beenstolen between 10 and 27 April 2017, and was worth $8,800. Inside the car was acannabis pipe and a methamphetamine pipe (the latter in the defendant's bag). Mr Alisaid he bought the car three days earlier for $450. He said he believed it was "legit".This offending occurred while Mr Ali was in breach of his release conditions: Mr Alifailed to report to his probation officer on 28 April 2017 after being released fromprison two days earlier for offending contrary to the Misuse of Drugs Act 1975 andbreach of release conditions.[3] On 16 May 2017, Mr Ali again failed to report to his probation officer.[4] On 23 June 2017, and while on bail for the May offending, Mr Ali was foundby Police with 0.1 grams of methamphetamine in his possession.[5] Further offending followed. On 13 August 2017, and hence while he was onbail for both the May and June offending, Mr Ali was found in possession of a smallamount of cannabis and methamphetamine pipe.[6] Mr Ali also failed to appear in the District Court on 11 May, 29 May and22 June 2017.[7] Judge McNaughton adopted a starting point of 15 months' imprisonment forthe receiving offence. The Judge uplifted the starting point by five months for theremaining nine offences. The Judge further uplifted the starting point by four monthsin recognition of the appellant's extensive history of offending contrary to the Misuseof Drugs Act.[8] The Judge mitigated the sentence by 25 percent—the maximum available forthe defendant's pleas of guilty.The first ground of appeal[9] Mr Roy relied heavily on Drake v Police.1 There, Gendall J helpfullyconsidered starting points of imprisonment in relation to the offence of receivingstolen property. Mr Drake received a stolen car worth $11,000. The victim wasdeprived of it for six months. Gendall J concluded the starting point of 15 months'imprisonment was within range, albeit a little harsh.[10] As to the other cases considered in Drake:(a) In R v Collier the defendant received a stolen car worth $11,000 the dayafter it had been stolen.2 The Court of Appeal adopted a starting pointof 18 months' imprisonment.(b) In Sinclair v Police the defendant received a car, two laptops and toolsworth more than $10,000.3 Much of the property had come into thedefendant's possession on the day it was stolen. A starting point of twoand a half years' imprisonment was considered stern, but otherwiseavailable.(c) In Ellis v R the defendant received stolen property worth $5,000.4Mr Ellis had been found with the property a few hours after theburglary. The Court of Appeal considered that feature significant. Itdeclined to interfere with the starting point of 18 months'imprisonment.1 Drake v Police [2015] NZHC 2252.2 R v Collier CA170/03, 21 August 2003.3 Sinclair v Police [2014] NZHC 1332.4 Ellis v R [2012] NZCA 513.(d) In Small v Police Hammond J appears to have accepted the defendant'sreceipt of a stolen van and firearms worth a total of $7,200 wasopportunistic.5 The Judge adopted a starting point of 18 months'imprisonment.[11] Of those above, Collier is the most similar. The car there was worth a littlemore and received by Mr Collier only a day after it was stolen. But, there the startingpoint was 18 months' imprisonment; not 15 months. Given this and the other decisionsabove, Judge McNaughton's starting point was available. Mr Roy very properlyacknowledged this argument was the "lesser" of the two advanced on appeal.The second ground of appeal[12] Mr Roy submitted Judge McNaughton was wrong to decline Mr Ali leave toapply for home detention as home detention is a real alternative to imprisonment, andthis response was consistent with the least restrictive outcome principle. Mr Royemphasised Mr Ali's recent instructions of his motivation to attend a residential drugprogramme. Mr Roy also emphasised Mr Ali's family support, both now and atsentencing.[13] It is not clear whether this appeal ground was directed at leave for homedetention or alleged error in not imposing home detention.6 The notice of appeal andwritten submissions were directed at the former, but Mr Roy's oral submissionsappeared to extend to the latter. This matters not as home detention, whether inconsequence of leave or otherwise, was problematical for at least six reasons.[14] First, Mr Ali has an unfortunate criminal record. Before sentencing on thesematters, Mr Ali had 18 convictions contrary to the Misuse of Drugs Act and a host ofother convictions for breach of release conditions, burglary, receiving stolen property,breach of bail, possession of an offensive weapon and driving while disqualified. MrAli has received many sentences of imprisonment. He is only 25.5 Small v Police HC Hamilton AP29/99, 30 March 1999.6 Refusal to grant leave is appealable; see s 80J of the Sentencing Act 2002.[15] Second, Mr Ali has a history of poor compliance with Court and related orders.As observed, Mr Ali has convictions for breaching release conditions, driving whiledisqualified and breaching bail. Mr Ali was released from prison on 26 April 2017.He failed within 48 hours to report to his probation officer, the first breach of releaseconditions charge before Judge McNaughton. And, several of the offences forsentence were committed while Mr Ali was on bail.[16] Third, Mr Ali's pre-sentence report is pessimistic. It records:(a) Mr Ali's offending shows "no signs of abating".(b) Mr Ali has no legitimate income. He acknowledges selling drugs andassociating with a gang.(c) Mr Ali "expressed no remorse for his offending".(d) It had been "nigh on impossible to motivate Mr Ali to engage with aprobation officer in the management of his release conditions". Thishas led to his parents "becoming dismayed and at a loss to where he isor if he is safe".(e) Mr Ali used his parents' address as a "dummy address"; he had nointention of living there.(f) Mr Ali was "unmotivated" to engage in drug or alcohol rehabilitativeprogrammes.(g) Mr Ali was at "high risk" of re-offending. And, at risk of absconding.[17] Fourth, there was and remains no obvious address for home detention.[18] Fifth, Mr Ali was not prepared to undertake a residential rehabilitationprogramme notwithstanding an obvious drug problem.[19] Sixth, combination of circumstance required a deterrent response: the offencesbefore Judge McNaughton began within two days of Mr Ali's release from prison fordrugs offending and breach of release conditions.[20] Mr Roy submitted Mr Ali's family remains supportive and Mr Ali's"instructions" are that he is motivated to attend a residential programme. There isnothing tangible in the record, however, to support the latter contention. And familysupport, while commendable, could not carry the day against this backdrop.[21] For the reasons above, Judge McNaughton did not err in declining to grant MrAli leave to apply for home detention, or in not imposing that sentence.[22] The appeal is dismissed...Downs J