AWARAU v NEW ZEALAND POLICE [2017] NZHC 1603

AWARAU v NEW ZEALAND POLICE [2017] NZHC 1603 [12 July 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI 2017-404-182[2017] NZHC 1603BETWEEN TIKIAHI AWARAUAppellantAND NEW ZEALAND POLICERespondentHearing: 11 July 2017Counsel: N Silich for AppellantD M A Wiseman for RespondentJudgment: 12 July 2017JUDGMENT OF HEATH JThis judgment was delivered by me on 12 July 2017 at 11.00am pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandCounsel:N Silich, WaitakereThe appeal[1] Following a sentence indication given on 7 March 2017,1 Mr Tikiahi Awarau pleaded guilty to one charge of cultivating the Class C controlled drug cannabis. On 29 May 2017, he was sentenced in the District Court at Waitakere,2 to a term of imprisonment of nine months.[2] Mr Awarau appeals against that sentence on the grounds that the sentencing Judge erred in imposing a period of imprisonment, as opposed to one of home detention.[3] An appeal to this Court against a sentence imposed by the District Court is governed by s 250 of the Criminal Procedure Act 2011. It provides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.The facts[4] Mr Awarau resided at [address redacted]. On 27 November 2016, he was at home. Police officers called at about 2.30pm that day on an unrelated matter. When they entered the house they discovered an elaborate cannabis growing operation. Two bedrooms had been adapted for the purpose of cultivating cannabis; each had windows fully blocked, with ventilation and lighting systems to facilitate their use.[5] Some 24 mature cannabis plants were found growing under lights in one of the bedrooms. In the other there were six medium sized plants. A third area had1 New Zealand Police v Awarau DC Waitakere CRI-2016-090-6578.2 New Zealand Police v Awarau [2017] NZDC 11368.been established in a shed adjacent to a carport. 31 cannabis seedlings were found in the shed, also growing under lights.[6] On being questioned, Mr Awarau accepted responsibility for growing the cannabis, but said it was for personal use.The sentencing indication[7] Judge Jelas gave a sentencing indication on 7 March 2017. She indicated, on the basis of those facts, that she would adopt a starting point of 14 months imprisonment. The Judge considered no uplift would be made for any personal aggravating factors. However, if a guilty plea were entered a sentence of 11 months imprisonment was likely to be imposed. Judge Jelas added:[6] That would then make it possible for me to consider an electronically-monitored sentence, if a suitable report is available.[7] The indication is 11 months imprisonment to be served by way of a community based sentence if a suitable report was available.Sentencing in the District Court[8] Mr Awarau elected to plead guilty to the charge after receiving the sentence indication. For the purposes of the sentencing exercise, the Judge had before her a pre-sentence report prepared on 26 May 2017, as well as earlier reports arising out of other offending by Mr Awarau, dated August 2015 and May 2016 respectively.[9] Judge Jelas was clearly concerned that Mr Awarau was tending to minimise the seriousness of his offending in interview with a probation officer. After referring to that, the Judge continued:3[4] When spoken to recently by the probation officer, the probation officer has reported that in your view, the offending was justified and you appeared to minimise its significance. Your history has been touched upon, which shows a 15 year history of consistent re-offending, with no evidence to suggest a reduction. Overall you are assessed as a medium to high risk of re-offending.[5] Your compliance with past sentences, as discussed in the report in August 2015, on a violence charge you were sentenced to intensive3 New Zealand Police v Awarau [2017] NZDC 11368, at paras [4]–[8].supervision. Under that sentence you have still not completed an anti- violence programme that you were directed to attend. The probation officer dealing with you in respect of that sentence notes that there are other offending related factors and programmes that you have not completed to mitigate other issues. While there is also mention of breach of communitywork, that was in 2006 and I accept Mr Silich's submission that is somewhathistorical and some time ago.[6] I note when reading your past reports that you have always presented with an appearance of being motivated to address the underlying causes. In the May 2016 report, you described your offending, which was driving with excess breath alcohol, with regret and reported being disappointed that your criminal offending had increased. You claimed at that time you were motivated to address your behaviour and willing to engage in programmes.[7] The August 2015 report records that you were willing to undertake an anger management programme. That report was prepared for the injuring with intent charge that you were later sentenced to intensive supervision on.[8] There is nothing in the more recent report which gives weight to the submission that Mr Silich has made on your behalf that you are seeking to turn your life around. He has provided me with a letter of an employer to evidence that you are working and says that you are involved in Family Court proceedings and keen to obtain a greater level of care or access to your children. Overall, the probation report, the most recent report, records there is a strong concern if you are placed on a community-based sentence. Presumably that relates to compliance and completing relevant and necessary programmes.[10] The Judge took denunciation, deterrence and accountability as the primary sentencing goals, while recognising a need for consistency in sentencing and that the least restrictive outcome was to be preferred. When balancing the possibility of a sentence of imprisonment against one of home detention, Judge Jelas said:[9] The purposes and principles of sentencing include the need to deter and denounce and to hold you accountable. There is also the need to ensure there is consistency and for the least restrictive outcome to be imposed.While a home detention sentence is in theory, the least restrictive outcome, I am not satisfied in the circumstances of this case that it will meet the other necessary purposes and principles of sentencing.[10] Given your track history of not taking advantage of opportunities in the past, to address the underlying causes of re-offending and blatantly failing to complete programmes, I am not satisfied that a sentence other than imprisonment would be sufficient deterrence and denouncement of further offending by you.(Emphasis added)[11] Although the Judge considered imprisonment was necessary, she was persuaded to reduce the indicated sentence from one of 11 months' imprisonment toone of nine months' imprisonment. That was to reflect difficulties that Mr Awarau had had in rehabilitating himself due to his first conviction "at a very young age".Judge Jelas added that Mr Awarau "must realise that these programmes and releaseconditions that will be imposed are there to try to provide [him] with an opportunityand services to make a difference in [his] life".4 Release conditions were to apply for a period of six months.5Competing contentions[12] Mr Silich, for Mr Awarau, submits that the sentencing Judge gave excessive weight to assertions of non-compliance with previous sentencing orders in circumstances where evidence on that topic was not before the Court. Mr Silich sought to put before me additional information to contradict the Judge's view that MrAwarau had not complied with previous directions as to attendance at rehabilitative programmes. Initially, Mr Wiseman, for the prosecutor, opposed introduction of new material on the grounds that the threshold for new evidence had not been crossed.6However, after some discussion, he was minded to accept that uncontroversial information about completion of certain programmes could be taken into account. I refer to that later.7[13] In short, Mr Silich submitted that the Judge imposed an inappropriate sentence. He contended that a period of home detention should be substituted for the term of imprisonment imposed by the Judge.[14] Mr Wiseman submitted no error has been established on the basis of whichthe Court can legitimately interfere with the District Court's sentencing decision.8He placed emphasis on the Judge's assessment of the impact of failure to takeadvantage of rehabilitative opportunities, adding that this was a case in which the drug offending occurred in the home. That, he submitted, militated against home detention as a sentence.4 Ibid, at paras [11] and [12].5 Ibid, at para [12].6 Criminal Procedure Act 2011, s 355 and Lundy v R [2014] 2 NZLR 273 (PC).7 See para [19] below.8 Criminal Procedure Act 2011, s 250. See also Tutakangahau v R [2014] 3 NZLR 482 (CA), inwhich the Court of Appeal confirmed that the test of "manifest excess" continued to applynotwithstanding the words used in s 250(2).[15] Added to those considerations, Mr Wiseman relied on the asserted minimisation of offending on the part of Mr Awarau. He contended that the appeal should be dismissed.Analysis[16] In my view, the question is whether a sentence of imprisonment wasnecessary to mark Mr Awarau's offending.[17] The starting point is s 16 of the Sentencing Act 2002. It determines the circumstances in which a sentence of imprisonment should be imposed. Relevantly, s 16(1) and (2) provides:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other than imprisonment; and(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case..[18] For present purposes, s 16(1) and (2)(b) assume significance. The statutory injunction requiring the Court to have regard to the desirability of keeping offenders in the community in the absence of something that might impact on its safety is buttressed by the prohibition on imposing a sentence of imprisonment unless a lesser sentence is not sufficient to meet relevant sentencing goals.[19] Mr Silich relied on the following additional information to rebut the Judge'sreliance on alleged non-compliance with community-based sentences as a factor in imposing imprisonment:(a) On 23 February 2017, Mr Awarau completed the Positive Behaviour Management course. This included an anger management component.(b) On 8 March 2017, Mr Awarau completed the Positive Parenting Programme.(c) On 16 March 2017, Mr Awarau completed an alcohol and drug counselling programme.[20] There is some significance in the fact that Mr Awarau completed the alcohol and drug counselling programme at a time that fell between the offending in issue (27 November 2016) and the date of sentencing (29 May 2017). Judge Jelas was not aware of completion of any of those programmes. I consider that this information is material and may, in a relatively finely-balanced case, have affected the Judge'sdecision to impose imprisonment. In that situation, I shall consider afresh what sentence should be imposed.[21] Although Judge Jelas referred to home detention as a "community-based"sentence, she did not use that term in a technical sense. Home detention is a hybrid sentence. As the Court of Appeal pointed out in R v D(CA253/2008),9 homedetention "is not listed among the community-based sentences set out in s 44" of the Sentencing Act and "s 80A(5) makes it clear that an offender who is sentenced to home detention is not in custody while that sentence is served".10[22] The nature of the home detention sentence was discussed fully by the Court of Appeal in R v Hill.11 Delivering the judgment of the Court, Arnold J emphasisedthat creation of the sentence reflected "a perception that society's interests are betterserved in some cases by the imposition of restrictions on liberty through homedetention rather than through imprisonment".12 Reference was made to"acknowledged advantages" set out in the Explanatory Note to the Bill thatintroduced the sentence; which included "low rates of reconviction and re-9 R v D(CA253/2008) [2008] NZCA 254.10 Ibid, at para [65].11 R v Hill [2008] 2 NZLR 381 (CA).12 Ibid, at para [33].imprisonment, high compliance rates, and positive support for offenders' reintegration and rehabilitation".13 In short, Hill made it clear that "home detentionshould be treated as a real alternative to imprisonment".14[23] If I were considering whether to allow an appeal based on the Judge'sassessment of the correct sentence, having regard to the information before her, it would be necessary to determine whether she was right to regard imprisonment as the only available sentencing option to mark the offending. If not, I would have regarded the sentence as inappropriate and justifying correction.15 However, as I have received additional and material information about completion of rehabilitative courses, I assess the correct sentence myself.[24] I start by referring to the probation officer's advice of 26 May 2017 whichwas made available to the Judge for sentencing purposes. The probation officer recommended a sentence of home detention notwithstanding prior non-compliance with community-based sentences. Correctly, the probation officer drew a distinction between community-based sentences (on the one hand) and the hybrid sentence of home detention (on the other). He was of opinion that the sentence of homedetention would "help to potentially mitigate [Mr Awarau's] offending whileallowing Community Corrections to monitor his whereabouts, while allowing him toaddress his rehabilitative needs".[25] Although Mr Awarau has had previous convictions for driving offences and violence, this was the first occasion on which he had been before the Court on a drug related charge. While his list of previous offending is somewhat lengthy, the nature of the current offending and the steps he has taken to rehabilitate persuade me that little weight should be given to that factor.[26] The probation officer confirms that the address at which home detention is to be served is assessed as suitable, from a technical perspective. There is no concern about Mr Awarau's cousin, who is the person proposed to live with him and, to someextent, help to supervise his compliance with the sentence. I have some concerns13 Ibid.14 R v D(CA253/2008) [2008] NZCA 254 at para [60].15 Criminal Procedure Act 2011, s 250(2), set out at para [3] above.about the fact that the offending occurred in the home, but I consider that can be managed adequately over the home detention period.16[27] Having regard to those factors, I consider that home detention is the appropriate sentence. When one distinguishes between a community-based sentence, in which an offender has liberty within the community, and home detention, where he or she is subject to conditions of detention for 24 hours a day, it is clear that serving a sentence of home detention will improve the chances that Mr Awarau will comply with programmes that he is required to undertake.[28] I shall impose special conditions for home detention to address the need for Mr Awarau to attend rehabilitative courses, as directed by the probation officer. Mr Awarau will be at risk of the sentence being cancelled and a substituted term of imprisonment imposed if he were to fail to attend and complete courses to the satisfaction of a probation officer; or, indeed, fail to comply with any of the conditions to which he will be subjected.[29] In my view, having regard to the desirability of keeping offenders in the community, the relevant purposes of sentencing can be met by home detention.17Result[30] The appeal is allowed. The sentence of imprisonment is set aside. In substitution, a period of eight months' home detention is imposed. That period takes into account time served in prison to date. Its duration is designed to provide a sufficient period of time to enable Mr Awarau to undertake a more comprehensive rehabilitative regime.[31] The sentence shall be served at [address redacted]. Following his release from prison, Mr Awarau shall travel directly to that address and await the arrival of a probation officer and field officer.16 See para [32](a) below.17 Sentencing Act 2002, s 16(1) and (2), set out at para [17] above.[32] Standard conditions for home detention apply, together with the following special conditions:(a) Not to possess, consume or use any alcohol or drugs not prescribed to him.(b) To attend an assessment for alcohol and drugs as directed by a probation officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.(c) To undertake any other counselling, treatment or programme directed by a probation officer, and to complete it to the satisfaction of the probation officer.(d) To comply with the requirements of electronic monitoring for the duration of the sentence.(e) To reside at [address redacted] or otherwise as approved by a probation officer. He shall not move to any new residential address without the prior written approval of a probation officer.(f) To notify a probation officer prior to commencing, terminating or varying any employment or voluntary work.[33] I thank counsel for their assistance._____________________________P R Heath JDelivered at 11am on 12 July 2017