Nahu v Police

[2015] NZHC 54

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-55 [2015] NZHC 54

BETWEEN

VINCENT NAHU

Appellant

AND

NEW ZEALAND POLICE MINISTRY OF JUSTICE COLLECTIONS Respondent

Hearing:	3 February 2015
Appearances:	K McHugh for appellant S N McKenzie for respondent
Judgment:	3 February 2015

JUDGMENT OF CLIFFORD J

[1]      On 20 August 2014 the appellant, Vincent Nahu, appeared in the Invercargill

District Court in connection with his failure to pay fines of $5,609.35.

[2]      At that time Mr Nahu was a serving prisoner: he was subject to a sentence of two   years’  imprisonment  on  drugs  charges.     Mr  Nahu’s   release  date  was

10 September 2014.  On that date he would have served one half (one year) of his short-term sentence of two years’ imprisonment.

[3]      Judge Callaghan – rather than ordering terms of payment of the outstanding fines – imposed a cumulative sentence of one month’s imprisonment.  He did so with Mr Nahu’s concurrence and on the understanding that that sentence would add two weeks, or at most one month, to Mr Nahu’s release date of 10 September 2014.  That

understanding was wrong.

NAHU v POLICE, MINISTRY OF JUSTICE COLLECTIONS [2015] NZHC 54 [3 February 2015]

[4]      The  effect  of  the  one  month’s  cumulative  sentence  was  that  Mr  Nahu’s “single notional sentence”1 was no longer a sentence of short duration. Accordingly, Mr Nahu’s release date became the last day of that sentence, namely 10 October

2015. That is the effect of the relevant provisions of the Parole Act 2002.

[5]      Mr Nahu appeals on the basis that that was an unintended consequence, and one which has resulted in a sentence which is manifestly excessive.

[6]      Generally speaking,  the  operation  of the parole regime is  not  a relevant consideration for the sentencing Judge.  However, in some circumstances the parole regime is relevant, as acknowledged by the Court of Appeal in R v Mwai.  There the Court said:2

In general it is not appropriate for a court to have regard to parole eligibility in determining a proper sentence: R v Stockdale [1981] 2 NZLR 189 (CA). There is no inflexible, and in an appropriate case it is permissible to have regard to the realities of the case in order to ensure a just sentence; see for example R v Hape [1994] 1 NZLR 167.

[7]      The Crown accepts, and I agree, that this is one of those relatively uncommon instances  where  the  impact  of  the  sentence  upon  a  defendant’s  release  criteria become relevant.  The Judge specifically referred to Mr Nahu’s likely release date but did so – as noted – in error.   If the Judge had been aware of the effect of the additional one month’s cumulative term of imprisonment, it appears likely that a different  sentence  would  have  been  imposed.    This  is  particularly  the  case  as Mr Nahu indicated that he would repay the fines, and in light of the need to impose the least restrictive sentence.

[8]      In these circumstances, I conclude that there was an error in the sentence imposed, that Mr Nahu’s appeal should be allowed and that accordingly under s 251 of the Criminal Procedure Act 2011 Mr Nahu’s one month cumulative sentence is set aside.     Section 251 of the Criminal Procedure Act provides that where the first appeal court sets aside a sentence it is to impose another sentence (whether more or less severe) that it considers appropriate.   Although not addressed in submissions before me, the effect of that provision would appear to require me to impose a

sentence in place of the one month cumulative sentence imposed on Mr Nahu.  To

1      See s 4, Parole Act 2002.

2      R v Mwai [1995] 3 NZLR 149, (1995) 13 CRNZ 273 at 157.

the extent that that is correct, I substitute a finite sentence of one month, on a non- cumulative basis,  that  sentence to  commence immediately following Mr Nahu’s release date of 10 September 2014.  The term of that sentence has, by now, expired. As I understand matters, the effect of allowing Mr Nahu’s appeal in this way is that he is entitled today to immediate release.  Given time served, the fines will remain remitted.

“Clifford J”

Solicitors:

AWS Legal, Invercargill for appellant.

Crown Solicitor, Invercargill for respondent