Merito v Police

[2020] NZHC 2871

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000083

[2020] NZHC 2871

BETWEEN

JAYSON RUWHENUA MERITO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 November 2020
Counsel:	CD Bean for Appellant ASC Alcock for Respondent
Judgment:	2 November 2020

ORAL JUDGMENT OF DOWNS J

Solicitors:

Crown Solicitor, Hamilton. Bean Law, Hamilton.

MERITO v POLICE [2020] NZHC 2871 [2 November 2020]

[1]                 Jayson Merito appeals his 17-month prison sentence. Mr Merito was charged with eight charges of indecent assault, one charge of committing an indecent act, and three charges of contravening a protection order. All charges relate to his step- daughter; Mr Merito was in a relationship with the victim’s mother.

[2]                 The sexual offending occurred repeatedly when the victim was 14 and 15. The charges were laid 9 January 2020. Mr Merito pleaded guilty 24 June 2020. He sought and was given a sentence indication in between.

[3]                 Judge D M Wilson QC adopted a starting point of 27 months’ imprisonment. The Judge reduced the starting point by five months for personal mitigating factors identified in a cultural report under s 27 of the Sentencing Act 2002. The Judge further discounted the sentence by five months in recognition of Mr Merito’s guilty pleas.

[4]                 On behalf of Mr Merito, Mr Bean contends the sentence is manifestly excessive. Mr Bean acknowledges that at first instance, he sought a sentence of approximately 16 months’ imprisonment, meaning Mr Merito received only one month longer than the term he exhorted to the Judge. Mr Bean contends the sentence is manifestly excessive, however, as Mr Merito is a second-strike offender—this means he must serve the full term.

[5]                 Mr Bean sought a 25 percent reduction for Mr Merito’s guilty pleas from Judge Wilson. The five-month deduction represents 19 percent of the starting point. Mr Bean say it is not clear the Judge applied the deduction in accordance  with Moses v R.1 In Moses, the Court of Appeal held the deduction for a guilty plea should operate as any other deduction from the starting point; not as a deduction from the balance once those other deductions have occurred.

[6]                 I am not persuaded of error. Nor am I persuaded a different sentence should be imposed. I can be (very) brief.

[7]                 First, the 19 percent deduction for the guilty pleas was reasonable. Mr Merito did not plead guilty at the first reasonable opportunity. So, full discount (of 25 percent)

1      Moses v R [2020] NZCA 296.

was not warranted. Second, even if the Judge did misapply Moses when discounting the sentence for the pleas of guilty, to interfere with the sentence by only one month would be to “tinker”. Courts have long expressed the proposition sentencing is not a science; a sentencing Judge enjoys a margin of appreciation. A sentence of 17 months’ imprisonment could not be regarded as manifestly excessive when it is common ground a sentence of 16 months’ imprisonment is within range.

[8]The appeal is dismissed.

……………………………..

Downs J