Lauina v Ministry of Social Development

[2015] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000052 [2015] NZHC 1937

BETWEEN

ISAAKO LAUINA

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	14 August 2015
Counsel:	JM Northwood for Appellant NE Copeland for Respondent
Judgment:	14 August 2015

JUDGMENT OF ASHER J

Solicitors/Counsel:

JM Northwood, Auckland.

Meredith Connell, Auckland.

LAUINA v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 1937 [14 August 2015]

[1]      This is a completion of an appeal process in which Mr Lauina and Ms Sioli appealed their sentences of community work.   I allowed Ms  Sioli’s appeal and reduced the sentence of community work by a quarter to 300 hours.  The issue in relation to Mr Lauina was different.  It was submitted to me he was suffering from gout and I adjourned the sentencing hearing to enable Probation to prepare a report for me as to Mr Lauina’s suitability for community work.  Community work was a possible  sentencing  option  should  I  allow  the  appeal.     I  was  persuaded  by Ms Northwood’s strong submissions as to his illness, that this could be a preferable sentence.

[2]      Regrettably Mr Lauina has with unambiguous discourtesy and disregard for his own interests chosen not to co-operate with probation and indeed his counsel. Mr Lauina failed to attend scheduled interviews with Probation of which he was notified. The probation officer’s attempts to contact him have been unsuccessful.

[3]      Ms Northwood, his counsel who appeared today, has also not been able to get intelligible instructions from him or to persuade him to co-operate with probation. He has not appeared today.  Ms Northwood advises me that this is because he has another “important appointment”.

[4]      Given Mr Lauina’s unwillingness to co-operate with the Court process or her, Ms Northwood understandably seeks leave to withdraw as counsel.  I grant leave to her to withdraw.

[5]      Thus, the option of community detention is not available.   I return to the merits of the appeal.

[6]      I considered that the sentence in relation to Ms Sioli was excessive at 400 hours and reduced it to 300 hours.  However, I noted in my judgment that there was a distinction  between  Mr  Lauina  and  Ms  Sioli  in  terms  of  their  culpability.    I considered Mr Lauina to have been more culpable than Ms Sioli.  I considered that in fixing an imprisonment starting point, six months’ imprisonment for Mr Lauina was appropriate as distinct from five months’ imprisonment for Ms Sioli.

[7]      There were also differences in personal circumstances.  Ms Sioli was working fulltime and there is every indication that she will complete her community work. The same cannot be said for Mr Lauina, who is not working and does not appear to have any interest in facing up to his wrongdoing.

[8]      Given the distinction in culpability between them and the greater mitigating factors that relate to Ms Sioli, I do not consider that the sentence of 400 hours community work for Mr Lauina was manifestly excessive.  In accordance with the principles I set out in my earlier judgment,1 some small reduction could be justified, but in the circumstances that would be tinkering.  Thus, I see no need to interfere with the sentence of 400 hours community work for Mr Lauina, and because of his

lack of co-operation with probation an alternative sentence of community detention is not available.

[9]      The appeal in relation to Mr Lauina is accordingly dismissed.

……………………………..

Asher J

1      Lauina v Ministry of Social Development [2015] NZHC 1507.