Harding-Reriti v Police
[2021] NZHC 1296
•3 June 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000050
[2021] NZHC 1296
BETWEEN JAY HARDING-RERITI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 June 2021 Appearances:
A Bailey for Appellant
C E Martyn for Respondent
Judgment:
3 June 2021
ORAL JUDGMENT OF VENNING J
Solicitors: Raymond Donnelly & Co, Christchurch Counsel: A Bailey, Christchurch
HARDING-RERITI v NEW ZEALAND POLICE [2021] NZHC 1296 [3 June 2021]
[1] On 12 November 2019 Judge A A Couch sentenced Mr Harding-Reriti to 12 months’ imprisonment on charges of possession of explosives and possession of offensive weapons.1 The Judge concluded his sentencing remarks as follows:
[5] … That leaves an end sentence of 12 months’ imprisonment which is what I impose on each of these charges concurrently.
[6]Leave to apply for substitution of sentence is denied.
[7] There will be standard release conditions by operation of the Sentencing Act 2002, but I impose no special conditions.
[2] Mr Harding-Reriti has served his sentence of imprisonment. However in the course of disclosure recently provided to him in relation to fresh charges he has learnt that his criminal history records that he was sentenced to standard release conditions. He seeks to appeal his sentence to correct that record.
[3] The first issue is that the appeal is out of time. Leave is required. However, as noted, the issue only recently came to Mr Harding-Reriti’s attention. Leave is granted.
[4] Mr Harding-Reriti’s counsel, Mr Bailey, has engaged in correspondence with the Executive Judge at the Christchurch District Court regarding the record. It appears clear enough from that exchange that the sentencing Judge did not impose standard conditions when sentencing Mr Harding-Reriti. That appears to have been on the mistaken basis that standard conditions would be imposed under the Parole Act 2002. While that may have been the Judge’s intention, it was in error. Section 93(1) of the Sentencing Act 2002 applies:
93 Imposition of conditions on release of offender sentenced to imprisonment for short term
(1)A court that sentences an offender to a term of imprisonment of 12 months or less may impose the standard conditions and any special conditions on the offender and, if it does so, must specify when the conditions expire.
1 New Zealand Police v Harding-Reriti [2019] NZDC 22788.
[5] While the Judge could have imposed standard release conditions, he did not do so. Standard release conditions did not apply by operation of the Sentencing Act 2002 as the sentence of imprisonment was for 12 months.
[6] In R v Dodd this Court accepted that in R v Scott the Court of Appeal appeared to accept there was jurisdiction to vary a sentence provided the sentence was set aside and reimposed in open Court.2 It would have been open for the Judge to have re- sentenced Mr Harding-Reriti before his sentence was completed, but the point is moot in the present circumstances given that he has completed his sentence without being re-sentenced.
[7] The Crown reasonably accepts it is a matter for this Court whether the Court considers removal of the conditions is appropriate.
[8] The position is that the Judge did not impose standard conditions when imposing the sentence. Standard conditions could not be imposed by statute. The sentence has not been reviewed or reimposed. Mr Harding-Reriti’s record should reflect that position, that the correct position is that he was not sentenced to standard release conditions.
[9] The issue is how best to achieve that clarification. On one view nothing should be required as the Judge did not impose standard conditions of release and they could not be imposed by operation of law. However, the record as it stands is incorrect.
[10] The most effective way to achieve the desired result seems to be to formally allow the appeal and reimpose the sentence, expressly without the standard conditions of release.
[11]For those reasons the appeal is therefore allowed.
[12] The sentence imposed by the District Court is set aside. I confirm and reimpose Mr Harding-Reriti’s sentence of 12 months’ imprisonment on each of the
2 R v Dodd [2019] NZHC 667 at [19], citing R v Scott CA381/02, 14 May 2003.
charges of possession of an offensive weapon and unlawful possession of a firearm concurrently. No standard or special conditions of release are however imposed.
Venning J
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