Department of Corrections v Laloni
[2015] NZHC 2427
•5 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000092 [2015] NZHC 2427
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
SOSAIA LALONI Respondent
Hearing: 5 October 2015 Appearances:
N Small for Applicant
A Kashyap for RespondentSentencing:
5 October 2015
SENTENCING NOTES OF WOOLFORD J
Solicitors/Counsel:
Crown Solicitor, Auckland
A Kashyap, Auckland
DEPARTMENT OF CORRECTIONS v LALONI [2015] NZHC 2427 [5 October 2015]
[1] On 5 September 2014, I sentenced Sosaia Laloni to ten and a half months home detention on one representative charge of selling cannabis and one charge of being an accessory after the fact to murder.1
[2] The Court of Appeal subsequently allowed an appeal against sentence on
6 March 2015, and reduced the sentence that I imposed to one of nine months home detention.2
[3] As a result of Mr Laloni’s non-compliance with his home detention conditions, the Department of Corrections applied to cancel that sentence and re- sentence Mr Laloni pursuant to s 80F of the Sentencing Act 2002.
[4] When that application was first called before me on 17 April 2015, Mr Kashyap appeared on behalf of Mr Laloni, but he had just been instructed and seen his client that morning. He had not had the opportunity of filing a notice of opposition or any affidavit in opposition to the application. Mr Kashyap indicated to me at that time that the five alleged breaches of home detention conditions on
31 January 2015, 20 February 2015, 21 February 2015, 4 April 2015 and 6 April
2015, were denied. These alleged breaches had all been charged as offences, which were to be called at a case review hearing in the District Court on 29 April 2015. That case review hearing has had to be adjourned for reasons I will come to, and is now to be heard in the Waitakere District Court on 2 December 2015.
[5] As a matter of fairness, I gave Mr Kashyap the opportunity of filing a notice of opposition and any affidavit evidence in opposition to the application, I directed that such material was to be filed by 5:00 p.m. on Monday, 20 April 2015, with any response by the applicant by 5:00 p.m. on Wednesday, 22 April 2015. I adjourned the application for one week until 10:00 a.m. on 24 April 2015. I clearly explained to Mr Laloni, who was present on that date, that the application would be heard and
determined that day. He understood he had to be present that day.
1 R v Afamasaga [2014] NZHC 2142.
2 Laloni v R [2015] NZCA 55.
[6] Subsequently, Mr Kashyap responsibly advised the Court that he had been unable to contact his client since Monday, 20 April 2015 and accordingly was not in a position to advance any opposition to the application for re-sentencing.
[7] I was also then provided with a further letter from the Department of Corrections dated 23 April 2015, in which I was advised that two further charges of breaching home detention had been laid against Mr Laloni in the Waitakere District Court. I was further advised that Mr Laloni absconded on or about 21 April 2015 and, at the time of writing the letter, his current whereabouts were unknown. Mr Laloni failed to appear as directed on 24 April 2015. His counsel, Mr Kashyap, was however present.
[8] I was satisfied, on 24 April 2015, from the affidavit evidence that there had been a pattern of non-compliance with home detention conditions by Mr Laloni and it was a suitable case to cancel his home detention and re-sentence him for the offences of selling cannabis and being an accessory after the fact to murder.
[9] On that date, counsel for the applicant submitted that the appropriate term of imprisonment upon re-sentencing was 21 months imprisonment. This was in line with the sentence that I initially reached for Mr Laloni before I converted it to 10 and a half months home detention.
[10] The Court of Appeal, however, allowed the appeal against this sentence of
10 and a half months home detention, granting an additional one and a half months discount for time spent in custody. However, the applicant submitted that under s 82 of the Act, time spent in custody was not relevant where the end sentence was one of imprisonment.
[11] The applicant, however, did acknowledge that account would need to be taken of the time already spent by Mr Laloni on home detention. He had spent seven months on home detention at that time, which was the equivalent of approximately
14 months imprisonment. Hence, counsel for the applicant, submitted that the appropriate end sentence was one of seven months imprisonment.
[12] Accordingly, on 24 April 2015, I granted the application to cancel the sentence of home detention on Mr Laloni and indicated that a sentence of seven months imprisonment was appropriate.
[13] Mr Laloni has been arrested on the warrant that I issued that day. He is represented today by Mr Kashyap. The Court is grateful to Mr Kashyap for attending without legal aid assignment as yet.
[14] Mr Kashyap advises me that the reason Mr Laloni did not attend Court as directed on 24 April 2015 was that he did not wish to be imprisoned. Mr Kashyap pleaded for another opportunity for Mr Laloni to stay in the community and provide for himself and his partner, who is due to have their baby shortly. He indicated a wish to turn his life around. With respect to Mr Kashyap, Mr Laloni has had ample opportunity to turn his life around.
[15] I am also advised today that Mr Laloni has new Police charges pending, which are to be called in the Waitakere District Court on 8 October 2015. These are two charges of carrying a firearm and one of giving false details on 30 August 2015, and one of failing to answer District Court bail on 25 September 2015.
[16] In those circumstances, I confirm my cancellation of the sentence of home detention of Mr Laloni and in its place I sentence him to seven months imprisonment on each of the charges of selling cannabis and being an accessory after the fact to murder, to be served concurrently. In addition, I impose the standard post-release
conditions under s 14 of the Parole Act for a period of six months.
Woolford J
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