(Given by Dobson J)
[1] On 4 November 2013 the appellant, Mr Naiker, was sentenced in the Auckland District Court to five months home detention on two convictions for possession of an offensive weapon and one conviction for a threatening act.[1] He has appealed that sentence as being manifestly excessive. The sentence has been suspended pending determination of his appeal.
[2] The offending occurred after the breakup of a relationship with the complainant. Mr Naiker was 17 at the time of the offending, and the girl involved somewhat younger. They began a relationship when they were both students at the same secondary school, and it developed to the point that Mr Naiker had moved in with the complainant, living in her mothers flat. Mr Naiker was expelled from the school in early March 2013 and the complainant ended her relationship with him shortly thereafter.
[3] Shortly after the complainant had ended the relationship, Mr Naiker went to her home, uninvited, and argued with her. During the course of the exchange he took a knife from the kitchen at the flat, handed it to her and urged her to kill him.
[4] Mr Naiker did not accept that the relationship had ended and pestered the complainant to an extent that she was extremely fearful of him. She blocked communications from his cell phone, which led to Mr Naiker sending texts to one of the complainants friends on 11 April 2013 that included threats to kill himself and harm others. Those communications were referred to the police, who issued a warning to Mr Naiker to stay away from the complainant.
[5] At around 4.30 am on 16 April 2013, Mr Naiker visited the complainants home, banging loudly on her window and calling out to her in angry tones. He was refused entry and made comments to the complainant, including:
Talk to me before I blow this place.
[6] The police were called and Mr Naiker was arrested and searched. He was carrying a 28 centimetre boning knife.
[7] Mr Naiker was charged with possession of an offensive weapon in relation to the occasions on which he had handed a knife to the complainant, and in respect of the boning knife he had in his possession on 16 April 2013. The charge of a threatening act was laid in relation to Mr Naikers comments to the complainant on 16 April 2013.
Sentencing decision
[8] Judge Crosbie did not identify a lead offence, but settled on an overall starting point for the offending of 18 months imprisonment. That was discounted to 12 months for guilty pleas and lack of previous convictions, together with a discount for youth. An additional two months discount was given in recognition of Mr Naikers completion of an anger management course. Accordingly, the notional length of an appropriate prison sentence was put at 10 months. The Judge transformed that into one of five months home detention, with special conditions that were to apply for the following six months.
[9] Virtually all of the components in the Judges rationale for the sentence are challenged on appeal.
The starting point
[10] First, Mr Holland argued that the starting point adopted was too high. We agree. In assessing the convictions overall, the Judge was not materially influenced by analogies. Although Mr Holland argued that the starting point was excessive by reference to cases he treated as analogies, the differences between those he cited and the present case prevent them being useful.[2]
[11] The first conviction for possession of an offensive weapon involved possession towards the most passive end of the scale of such charges. Mr Naiker presented the knife to the complainant and urged her to use it on him, as opposed to the usual circumstances, which involve varying levels of threat of use of the offensive weapon against others by the person charged. On the second occasion, the possession was also not overtly threatening in the sense that Mr Naiker apparently made no reference to it in his exchanges with the complainant, and she remained unaware of it. Nonetheless, the courts are generally entitled to assume that an offender carrying an offensive weapon is prepared to use it and that is appropriate here.
[12] The three convictions reflect a course of conduct provoked by the end of a relationship. Each conviction carried a maximum penalty of three years imprisonment. Making appropriate allowance for the totality of the offending reflected in all three, we are satisfied that it did not justify a starting point of one half of the maximum. A starting point of 12 months imprisonment would have better reflected all the features of the offending.
[13] Although Ms Vear accepted that the Judges starting point was stern and at the top of the available range, she nonetheless argued that it was appropriate. She urged us to assess its seriousness from the perspective of the victim for whom this was unarguably very troubling intimidation by an obsessive young man who was prepared to arm himself with a knife. We accept that, and it is adequately reflected in the starting point that we would apply.
[14] Judge Crosbie fixed a term of home detention at five months, being between 25 and 30 per cent of the notional starting point. Applying the same approach, and allowing similar discounts together with a credit for Mr Naikers time spent on restrictive bail conditions, we consider that an appropriate term is three months home detention or 25 per cent of the notional starting point. Mr Holland criticised the Judges failure to break down or itemise components of the discount process, but we are satisfied that this global approach was appropriate.
Was home detention appropriate?
[15] The final element of Mr Hollands submissions was that the sentence of home detention was a more restrictive one than was appropriate. The submission is more persuasively made once the length of the notional prison sentence is reduced from 12 to six months. On a conventional conversion, that equates to three months home detention.
[16] Mr Holland relied on the recommendation in the pre-sentence report which was for a sentence of community detention, and drew attention to observations suggesting Mr Naiker had made progress with personal development and insight since the offending. The report writer was influenced by the less restrictive community detention enabling sufficient movement for Mr Naiker to pursue all the studies he wants to.
[17] In this case, the Judge was concerned that any sentence less than home detention would be an insufficient deterrent. Despite lessening the appropriate duration of the sentence, we are not persuaded there was any error in the Judges decision on whether to impose community detention rather than home detention. Convictions for possession of offensive weapons that involve young men carrying knives must be recognised as serious offending, and it is important that an adequate deterrent signal be conveyed for this type of post-relationship intimidatory or obsessive behaviour. It was appropriate for the Judge to be concerned about an inadequate deterrent signal if these convictions resulted in a sentence of community detention.
[18] We share the Judges optimism that approval will be given for absences from the address at which the sentence is to be served to enable Mr Naiker to pursue appropriate and worthwhile educational training.
Result
[19] We accordingly allow the appeal and substitute the original sentence of five months home detention with one of three months home detention. The conditions imposed by the District Court Judge are to remain in place.
[20] Irrespective of the terms on which Mr Naiker has been bailed pending determination of his appeal, he is to be at 14D Princess Street, Takanini from 10 am on the day following release of this judgment, and is to remain at that address until he is visited by the supervising Probation Officer and security person to arrange for the resumption of his sentence.
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[1] R v Naiker DC Auckland CRI-2013-004-004172, 4 November 2013.
[2] R v Edwards [2008] NZCA 205; Tutbury v Police [2013] NZHC 2960; Hunter v Police [2012] NZHC 107.