Namana v Police

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2016-441-45 [2017] NZHC 66

BETWEEN

FREEDOM TE

WHAKATUWATEATANGA FRANCES NAMANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2016

Appearances:

W R Hawkins and A V Bryant for Appellant
MJM Mitchell for Respondent

Judgment:

2 February 2016

ORAL JUDGMENT OF PETERS J

Solicitors:           Public Defence Service, Hawkes Bay

Elvidge & Partners, Crown Solicitor, Napier

NAMANA v NEW ZEALAND POLICE [2017] NZHC 66 [2 February 2016]

[1]      The   appellant,   Mr   Namana,   appeals   against   sentence   imposed   by

Judge A J Adeane in the District Court at Hastings on 23 November 2016.1

[2]      I must allow Mr Namana’s appeal if satisfied that:2

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[3]      Mr Namana was for sentence on the following offences committed between

February and October 2016, to which he pleaded guilty: (a)   shoplifting;

(b)      burglary;

(c)       male assaults female;

(d)      breach of community work; (e) wilful damage;

(f)       assault with a weapon; and

(g)      failure to answer District Court bail.

[4]      The Judge sentenced Mr Namana to 14 months’ imprisonment.   The only issue which arises on appeal is whether the Judge erred, in that he failed to consider whether he ought to impose a sentence of home detention.   On the face of the material then before the Judge, namely a pre-sentence report dated 13 September

2016, a suitable address for a sentence of home detention was available.

1      Police v Namana

2      Criminal Procedure Act 2011, s 250(2).

[5]      Section 8(g) Sentencing Act 2002 (“Act”) requires a Court to impose the least restrictive outcome appropriate in the circumstances.   Other provisions of the Act pertain to this statutory requirement, particularly ss 15A and 16 of the Act.

[6]      The Judge did not expressly refer to the possibility of a sentence of home detention and, in the circumstances, I am not able to infer that the Judge turned his mind to the matter.  Mr Namana’s youthful age, to which the Judge himself referred, would  be  a  factor  requiring  consideration  in  the  exercise  of  the  discretion. Moreover,  although  Mr  Namana has  a lengthy criminal  history for someone so young, he has never been sentenced to anything more restrictive than community work.

[7]      Given the lack of express reference and the matters to which I have referred, as I say it is not possible for me to infer that the Judge turned his mind to the imposition of a sentence of home detention as the Act required him to do. Accordingly, the necessary error is made out.

[8]      The issue then becomes what consequence should follow from that.  Given the preliminary view I reached when this matter was first called this morning, I asked counsel to make enquiries as to whether the address before the Judge as of November 2016 remained available and suitable.

[9]      Since  then  the  Department  of  Corrections  and  in  particular  Ms  Gray,  a probation officer, has visited the…

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Details
Case
[2017] NZHC 66
Decision Date

CaseChat Overview and Summary

In the case of Namana v Police, the appellant, Mr. Namana, sought to appeal his 14-month imprisonment sentence imposed by Judge A J Adeane in the District Court at Hastings on 23 November 2016. Mr. Namana had pleaded guilty to several offences, including shoplifting, burglary, assault, and failure to appear in court. The sole issue raised in the appeal was whether the sentencing judge erred by not considering the possibility of imposing a sentence of home detention, as a suitable address for such a sentence was available according to a pre-sentence report dated 13 September 2016. The appeal was heard on 2 February 2016, with the appellant represented by W R Hawkins and A V Bryant and the respondent by MJM Mitchell.

The court was required to determine if the sentencing judge failed to consider the imposition of a sentence of home detention as mandated by Section 8(g) of the Sentencing Act 2002. This statutory requirement mandates that the court impose the least restrictive outcome appropriate in the circumstances, which is further supported by sections 15A and 16 of the Act. The sentencing judge did not explicitly address the possibility of home detention, and there was no indication that the judge considered the appellant's youth or his previous sentences, which had never been more restrictive than community work. Consequently, the court found that the necessary error was made out.

The court's reasoning concluded that the error by the sentencing judge warranted allowing the appeal. The court granted the appellant leave to apply to the District Court for cancellation of the imprisonment sentence and substitution of a sentence of home detention if a suitable residence becomes available. This decision was based on the view that a suitable address may become available at short notice, considering the appellant's age and the time elapsed since the original sentencing.

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