Anae v Police
[2016] NZHC 1476
•1 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000123 [2016] NZHC 1476
BETWEEN SEKOA ANAE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 June 2016 Appearances:
M J Kidd for Appellant
T Bellingham for RespondentJudgment:
1 July 2016
JUDGMENT OF GILBERT J
This judgment is delivered by me on 1 July 2016 at 10 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Kidd Legal, Auckland
Merediths, Auckland
ANAE v NEW ZEALAND POLICE [2016] NZHC 1476 [1 July 2016]
Introduction
[1] Mr Anae pleaded guilty to assault with a weapon, threatening to kill and possession of methamphetamine. On 16 March 2016, Mr Anae was sentenced by Judge Fraser in the Auckland District Court to a term of 22 months’ imprisonment.1
[2] Mr Anae has been granted leave to appeal out of time on the basis that the Judge should have made an order under s 80I of the Sentencing Act 2002 granting Mr Anae leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence became
available.2
Facts
[3] At about 7.00 pm on 21 April 2015, Mr Anae went to the victim’s address to collect $30 that he claimed was owed by another resident at the address. Mr Anae was in a highly agitated state and was shouting and acting aggressively. When the victim asked Mr Anae to calm down, Mr Anae replied “you pull a knife on me I’ll kill you”. Mr Anae went back to his home but returned approximately five minutes later wearing gloves and holding a 30 centimetre long-handled butcher’s boning knife. He confronted the victim in the kitchen and held the knife to the victim’s throat and torso for approximately five minutes while shouting threats and abuse. He repeatedly stated that he would cut and kill the victim. The victim managed to escape and call the police. The victim was shaken but uninjured.
[4] When the police arrived, they located a clear plastic zip lock bag containing
approximately .1 grams of methamphetamine in Mr Anae’s possession.
Prior convictions
[5] Mr Anae, who is now aged 45, has previous convictions for violent offending: indecent assault of a female in 2011; indecent assault of a female in 2003;
breaking and entering and using a weapon in 2003; assault with intent to commit
1 New Zealand Police v Anae [2016] NZDC 4499.
2 Minute of Woolford J dated 13 May 2016.
sexual violation in 2003; and assaulting police (x 2) in 1991. Mr Anae was also imprisoned in Australia. He lived there from the early 1990s until about 2004. However, the Court has not been given details of this offending.
Sentence indication
[6] On 11 November 2015, Judge Fraser gave a sentencing indication in the
Auckland District Court. The police submitted that a starting point of around
32 months should be adopted for the assault with a weapon and threatening to kill charges with a modest uplift for the methamphetamine offending and a further uplift to recognise Mr Anae’s previous convictions. Mr Kovacevich, who was then acting for Mr Anae, submitted that an overall starting point taking all these matters into account should be between two and three years’ imprisonment. He argued that a
25 per cent discount should be allowed for the guilty plea and a further discount for remorse. He submitted that this would result in a short sentence of imprisonment that could potentially be commuted to a sentence of home detention.
[7] The Judge adopted a starting point of 18 months for the assault with a weapon and 15 months for threatening to kill. Taking into account the totality principle, the Judge applied no uplift for Mr Anae’s previous convictions for violent offending, nor any uplift for the possession of methamphetamine. The Judge allowed a discount of four months, equating to approximately 12 per cent, for Mr Anae’s remorse and rehabilitative efforts. The Judge said that he would allow the full discount of 25 per cent if guilty pleas were entered at that stage. This produced an indicated end sentence of 22 months’ imprisonment.
[8] On that basis, the Judge said that he would be prepared to sentence Mr Anae
to 11 months’ home detention:
[13] As I say, it results in a short sentence of imprisonment, which recognising what you are doing at the moment, recognising the rehabilitative work that you are engaged in, I would be prepared to impose a sentence of home detention, which leaves you in the community and there would be special conditions Mr Kovacevich and Mr Anae, that would run for a period of 12 months, post the detention end date.
[14] So that is where matters finish up, so it would be 22 months’ imprisonment, Mr Kovacevich, which would convert to 11 months’ home detention.
[9] Mr Anae accepted this sentence indication and pleaded guilty to the charges. Sentencing was set to occur on 21 January 2016 following receipt of a pre-sentence report and an assessment of the suitability of the proposed address for a sentence of home detention.
Probation report
[10] A pre-sentence report dated 15 January 2016 recorded that Mr Anae said he was under the influence of alcohol and drugs at the time of the offending and “not thinking straight”. He stated that matters “went off the rails” when he arrived at the address. He said that the methamphetamine was for his own use. In hindsight, Mr Anae said that he could have handled the situation in a better way and he felt “stupid and remorseful about what had happened”.
[11] The probation officer reported that Housing New Zealand had declined to give permission for Mr Anae to serve a sentence of home detention at his address because of his aggressive behaviour towards other tenants in the apartment block. Child Youth and Family were concerned about Mr Anae residing with any of his children because of his past behaviour towards them. For these reasons, the probation officer was unable to recommend an electronically monitored sentence at this address. The probation officer recommended a sentence of imprisonment with release conditions and said that Mr Anae had been made aware that a sentence of imprisonment was “a very likely option”.
[12] The probation officer concluded her report by saying:
Electronic Monitoring Considerations
The Court has asked for a sentence of Home Detention/Community
Detention to be canvassed.
However due to the fact that Housing New Zealand has declined to give permission to Mr. Anae to serve any such sentence from the proposed address due to display of aggressive behaviour towards other tenants within that apartment block it is not possible to recommend any EM sentence for Mr. Anae.
Likelihood of Re-Offending
Taking into account Mr. Anae’s offending history, type of offending, attitude
towards his offending and result of Departmental risk assessment tools, I
assess him as having a high likelihood of re-offending and high risk of harm to others.
[13] Sentencing did not proceed as scheduled on 21 January 2016 because counsel for Mr Anae wished to explore alternative arrangements for a community-based sentence. Sentencing was accordingly postponed until 16 March 2016 and a further report was sought.
[14] A further probation report was prepared, dated 11 March 2016. Given that this appeal focuses solely on the issue of whether the Judge was wrong not to grant leave to apply for home detention, it is worth setting out the contents of this brief report in full:
The Court has asked for electronic monitored (EM) sentences to be canvassed.
Mr Anae was interviewed on 04 February 2016 and consented to EM enquiries. He proposed the address of 3/310 Blockhouse Bay Road, Avondale, Auckland 0600 to be canvassed for EM suitability. Mr Anae reported that he lives alone and that his five year old son is currently living with his ex partner, his son’s mother lives in Australia.
Mr Anae confirms that he has no other address that could be canvassed for
EM.
Housing New Zealand (HNZC) who rent this property to Mr Anae have again declined to allow Mr Anae to reside at this address if subject to an EM sentence. The property manager for the Blockhouse Bay area confirmed via email on 25 January 2016 that “…we stand by our earlier decision to decline sentencing to the property. HNZC will not want to put the other tenants and the community at risk.” Following a domestic violence incident at the address involving Mr Anae and his partner, on 21 February 2016, HNZC indicated that they intend to evict Mr Anae from the property, at the time this report was finalised this had not been confirmed with HNZC.
Mr Anae is suitable for an EM sentence with no safety risks identified. Mr Anae is the only occupant, therefore no occupant enquiries were required. Based on the decision of Housing New Zealand the proposed address is assessed as unsuitable for EM at this time.
Sentencing decision
[15] The Judge ruled out the option of home detention for two reasons. First, there was no suitable address. Second, and more significantly, further serious charges had been laid against Mr Anae in the interim and the Judge considered home detention was no longer appropriate as a consequence:
[3] The reality here is that things have been overtaken by events. I have two fresh charges in front of me which are not necessarily serious, but I am also advised by your counsel of much more significant and serious charges that have been laid including unlawful sexual connection, supply of Class A and aggravated robbery. Depending on the outcome of those, of course, they will see a significant amount of jail time in the event of conviction.
[4] The situation as it was today, putting those matters to one side, saw a continuation of an inability to find a suitable address for home detention. As I say, that has now been overtaken by events in any case and despite having read through what you have written for me there is no ability to sentence you to home detention in all of these circumstances.
[16] The Judge accordingly imposed a sentence of 22 months’ imprisonment.
Mr Anae’s affidavit filed in support of his appeal
[17] In his affidavit filed in support of his appeal, Mr Anae states that he was born in Samoa but came to New Zealand when he was aged seven. He moved to Australia to live in about 1990 and remained there until 2004. He says that he found life difficult in Australia. He says that as a result of having been sentenced to a period of imprisonment while he was in Australia, he is not able to return there.
[18] Mr Anae has three children aged five, 13 and 18. The older children were born in Australia where his former partner now lives with the youngest child.
[19] Mr Anae recognises that he suffers from alcohol and drug addiction. He completed a CADS course in February 2016 and would like to receive further treatment and assistance to overcome this. He says that he has been offered accommodation at an address in Henderson where he would be able to serve a sentence of home detention which would enable him to pursue rehabilitation and re- entry to the workforce.
[20] Mr Anae acknowledges threatening to kill the victim and returning with the weapon but, contrary to the summary of facts and his guilty plea, he claims that he did not actually touch the victim or assault him. He says that he has met a former inmate who now works with the Salvation Army and this person has given him moral support and inspiration. He says that he wishes to follow this man’s example
and rehabilitate himself so that he can meet his responsibilities to his family and make a contribution to society.
[21] Mr Anae’s position in relation to the assault charge as related in this affidavit
is consistent with what he told the probation officer:
When the Summary of Facts (SOF) was read out to Mr. Anae he disputed certain facts. But when asked why did he choose to plead guilty if the SOF was incorrect, Mr. Anae stated that it was his lawyer who advised him to do so. He further went on to say that “if left to him he would have taken it to a trial”. However, now he reports that he just wants the case to be over so that he can move on in life.
Was the Judge wrong not to reserve leave to apply for home detention?
[22] A sentence indication given under s 61 of the Criminal Procedure Act 2011 is binding on the judicial officer who gave it unless information becomes available to the Court after the sentence indication was given but before sentencing and the judicial officer is satisfied that the information materially affects the basis on which the sentence indication was given.3 The Judge recognised that he was departing from his sentence indication and sought to justify this on the basis of the fresh charges that had been laid. The Judge considered that this materially affected the appropriate outcome: 4
The situation as it was today, putting those matters to one side, saw a continuation of an inability to find a suitable address for home detention. As I say, that has now been overtaken by events in any case and despite having read through what you have written for me there is no ability to sentence you to home detention in all of the circumstances.
[23] If the Judge was correct that there had been a material change in circumstances in terms of s 116(2) of the Criminal Procedure Act then he was required to give Mr Anae the opportunity to vacate his guilty pleas but there is no indication that this was done:
115 Plea of guilty may be withdrawn by leave of court
(1) A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
(2) The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—
(a) the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or
(b) the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to
impose a sentence of a different type or types, or of the same type or
types but a greater quantum, than that specified in the sentence indication.
(emphasis added)
[24] Ms Bellingham submits that the Judge did not expressly indicate that a sentence of imprisonment was not possible and that the indication was no more than that the end sentence would fall within the non-custodial range and that if the circumstances allowed for it, the Judge would be prepared to impose a sentence of home detention. I cannot accept that submission. The sentence indication was clear and created an expectation that Mr Anae would receive a sentence of home detention if a suitable address was available – “I would be prepared to impose a sentence of
home detention”.5 As the Court of Appeal stated in Taylor v R, if the expectation
arising out of a sentence indication is not met, the defendant must be given the opportunity to vacate his guilty plea:6
… A sentence indication generates an expectation. If it is relied upon, and then for whatever reason the expectation is not met, the accused must be given the opportunity to vacate the pleas. What is in issue is the integrity of the sentence indication system.
[25] Nevertheless, if Mr Anae wished to challenge his convictions on the basis that he should have been given the opportunity to vacate his guilty pleas, the appropriate course is an appeal against conviction, not an appeal against sentence. Mr Anae has not appealed against his convictions, nor has he sought an opportunity to vacate his guilty pleas. As noted, the sole issue raised on the appeal is whether the Judge was wrong not to grant Mr Anae leave to apply under s 80I of the Sentencing Act to substitute a sentence of home detention if a suitable address became available.
[26] The Judge was wrong in principle to take into account the new charges that had been laid against Mr Anae in determining the appropriate sentence on the existing charges. The fact that these new charges had been laid provided no justification for departing from the sentence indication. Mr Anae is entitled to the presumption of innocence and the existence of these charges should not have been taken into account by the Judge in departing from his sentence indication and rejecting home detention as the appropriate outcome.
[27] The Judge could not have sentenced Mr Anae to home detention because no suitable address was available at that time. However, because home detention was the correct response and would otherwise have been imposed, the Judge was obliged to grant leave under s 80I to apply for home detention if a suitable address became available in the future. This provision is mandatory:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1) This section applies if—
(a) a court has sentenced an offender to a short-term sentence of imprisonment; and
(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
(emphasis added)
[28] Because of my conclusion that the Judge was bound by his sentence indication of home detention, he was required to grant leave under s 80I. The appeal must accordingly be allowed.
Result
[29] The appeal is allowed.
[30] Leave is granted to Mr Anae to apply to the District Court pursuant to s 80I
of the Sentencing Act 2002 for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if he finds a suitable address.
M A Gilbert J
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