R v Riri - [2008] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND
CA432/2008
[2008] NZCA 441
THE QUEEN
v
MICHAEL RIRI
Hearing:14 October 2008

Court:O'Regan, Potter and Fogarty JJ
Counsel:W Lawson for Appellant

T Epati for Crown

Judgment:24 October 2008 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed. The sentence of imprisonment imposed in the High Court is quashed.
BA sentence of six months’ home detention is imposed on the terms and subject to the conditions set out at [20] – [21] of the Reasons of the Court.

REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1]       The appellant, Mr Riri, is a paraplegic who was found by a jury to be guilty of possession of methamphetamine for the purpose of supply. On 16 May 2008 MacKenzie J sentenced him to two years and three months imprisonment. He appeals and seeks a sentence of home detention. His principal argument is that he needs 24 hour nursing care which cannot be provided in Waikeria Prison, the only prison in the country capable of taking paraplegic prisoners. He relies on information which was not before MacKenzie J at the time of sentencing.
The facts of this case as known to the Judge
[2]       The police executed a search warrant at the appellant’s address on 21 September 2006. They found in his bedroom, in clear snaplock bags, a total of 14.6 grams of methamphetamine, and two sets of electronic scales.   Methamphetamine residue was found on both sets of scales.   They also located two surveillance cameras which were fastened to the appellant’s front kitchen window frame transmitting to a television screen in his bedroom, enabling him to view the front door. When spoken to he admitted the methamphetamine was his and stated it was for his own personal use. He also added that he had traded ten ounces of cannabis for the methamphetamine the night before.
[3]       The sole issue at trial was whether the appellant possessed the 14.6 grams for the purpose of supply or only, as he contended, for his personal use. The jury found him guilty.
[4]       The Judge knew that he was confined to a wheelchair and would require assistance on a daily basis while in prison. He recognised that therefore a sentence of imprisonment would be more severe for him than for an able-bodied prisoner.
The sentencing analysis in the High Court
[5]       The Judge found that although the 14.6 grams would place the case squarely within Band 2 of R v Fatu [2006] 2 NZLR 72 (CA), a part, possibly a considerable part of the drugs, would have been for his own use. Accordingly, he placed the appellant on the cusp between the bottom of Band 2 and the top of Band 1 and took as a starting point three years. He considered raising that period by reason of his previous drug convictions (for dealing in cannabis) and the fact that he had continued and escalated his offending. However, in this case given the relatively low level of…

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.

Continue reading R v Riri

Details

AGLC: R v Riri [2008] NZCA 441
Case: [2008] NZCA 441
Decision Date: 24 October 2008

CaseChat Overview and Summary

The case of R v Riri was heard in the Court of Appeal of New Zealand, with the appellant, Michael Riri, appealing a sentence of imprisonment imposed by the High Court. Riri, a paraplegic, was convicted of possessing methamphetamine for the purpose of supply. The legal issues before the Court of Appeal were whether Riri's physical condition warranted a departure from the usual custodial sentence and if home detention could be a viable alternative. The Court considered that Riri's need for 24-hour nursing care, which could not be provided in any New Zealand prison, made the initial sentence disproportionate. The appeal court concluded that home detention was the only practical alternative and imposed a sentence of six months' home detention with specific conditions to monitor compliance with drug use restrictions.

The Court of Appeal found that Riri's physical condition was a critical factor not considered by the High Court during sentencing. The Court recognised that Riri's disability meant he required constant care and attention, which could not be met in any prison. The appeal court determined that this special need made the original sentence of imprisonment disproportionate and unjust. The appeal was allowed, and the sentence was quashed in favour of a six-month home detention term with conditions to ensure compliance with drug-related restrictions. The conditions included mandatory drug counselling, prohibition of illicit drug use, and allowing police access to Riri's residence to monitor compliance.

Orders