Namana v Police - [2017] NZHC 66

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 66
Decision Date: 2 February 2016

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.

Orders