R v Tere HC Auckland CRI 2009-092-3881

[2010] NZHC 1239

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-3881

THE QUEEN

v

TERENCE TERE

Hearing:         22 July 2010

Counsel:         RS Reed for the Crown

LO Smith for the prisoner

Sentence:       22 July 2010

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:           Meredith Connell, P O Box 2213, Shortland Street, Auckland 1140 for the Crown

Ms L Smith, P O Box 47089, Ponsonby, Auckland 1144 for the prisoner

R V TERE HC AK CRI-2009-092-3881  22 July 2010

Introduction

[1]      Mr Tere, as with Mr Lynch, I am required to sentence you on the charge of being  an  accessory  after  the  fact  to  murder,  of  which  you  were  found  guilty following trial by jury.  I adjourned sentence on 2 July, when I sentenced all other co-accused, so that I could give consideration to sentencing both you and Mr Lynch to a term of home detention.  I now have received the report which records that you are eligible for such a sentence.  I am satisfied, for reasons which I will explain, that that is the appropriate sentence in your case.  The critical and difficult issue is what the term of home detention should be.

[2]      Your role in the offending was to join with Mr Lynch in taking the Nissan Regulus from where it was parked to the Manukau Velodrome carpark and setting fire to it.  You did so after Mr Shadrock said that he would pay you $300 in return for burning the vehicle.

Personal background

[3]      You are now 23 years of age.  You were 21 at the time of the offending.  You are Maori.   You have been living with your older sister and other relations since

2008 at the address where you would continue to live if home detention is imposed.

[4]      According to the pre-sentence report, you have three children.  One is from a previous relationship.  You have no contact with that child.  You and your current girlfriend have twin children, born on 9 June 2010.  You have only been able to have limited contact with them because of the restrictive conditions on which you have been on bail.

[5]      You have nine previous convictions.   Some are for offences of violence. Several are drug-related.  You have acknowledged alcohol and drug abuse issues in the  past  which,  according  to  the  report,  have  been  reduced  as  a  result  of  the

restrictive bail conditions you have been on.  You have also previously successfully completed a drug and alcohol programme.

Sentence

[6]      For  the  reasons  I  gave  when  sentencing  your  co-offenders,  I  consider  a starting point of two years imprisonment is appropriate.  The Crown has submitted that there should be some modest uplift to that sentence to take account of the fact that you have offended while on bail.  That is a charge of possession of cannabis for the purpose of supply.    I am prepared  to take that into account, as  I did with Mr Tekanawa, but I would be concerned at the possibility that when being sentenced for that offending, there is also an uplift by virtue of the fact that the offending occurred while you were on bail.  I observe that that tends to be the point at which such an uplift is imposed.

[7]      As I said when sentencing Mr Lynch, there is no question that the offending would normally merit a sentence of imprisonment and that would have been the sentence I would impose on you were it not for the fact that you have spent considerable periods in custody already and lengthy periods also on highly restrictive bail conditions.

[8]      You have had three periods in custody.  You were in custody for seven weeks following your arrest.  Then, from 15 July 2009, when you were brought before the Court having breached your bail, until 26 May 2009, you were in custody, a period of  some  six  weeks.    You  were  then  in  custody from  16  November  2009  until

9 February 2010, a period of twelve weeks.  The total time you have spent in custody since your arrest is 25 weeks.

[9]      You  were  on  electronically monitored  bail  for  two  periods.    First,  from

12 August 2008 to 2 April 2009 and then from 9 February 2010 to date.  That is a total of twelve months.  In between time, on 26 May 2009, the earlier conditions of bail were relaxed and you were subject to a 24-hour curfew.  That was to enable you to work and you engaged in shift work over that period.

[10]     So, in summary, since your arrest you have had 25 weeks in custody, twelve months on electronically monitored bail and six months on bail subject to a 24-hour curfew.   The question is how much discount should be allowed for the time you spent in custody and on bail on restrictive conditions.

[11]     The general rule is, as I said when sentencing Mr Lynch, that any time spent in custody should be taken into account and given full credit for.   In your case, Ms Reed accepts that you should be given credit for the seven-week period of initial remand but not for the two later periods.

[12]     You were remanded in custody for the second time after a serious breach of your bail between 10 and 12 April.  You had been granted an indulgence to enable you to go to Feilding to see your uncle who was terminally ill.   While you were there, you got drunk and breached your bail in other respects as well, including by having contact with your brother who was a Crown witness.

[13]     Ms Reed’s position is that I should give no credit for the six weeks you were remanded in custody after that, for the reason that the six-week remand should be regarded  as  in  the  nature  of  a  punishment  for  your  breach  of  bail.    Similarly, although not to the same extent, she submits that for the later period of twelve weeks you  spent  in  custody,  following  being  charged  with  possession  of  cannabis  for supply, you should receive only a modest discount.  She proposes three months in all to take account of the 25 weeks you have spent in custody.

[14]     Ms Reed adopts a similar position in relation to the period you spent on bail on restrictive conditions.  She points out that some, at least, of the term on which you were subject to EM bail was because of the breach.   She argued, referring to my decision in R v Potoru1, that full recognition would be inappropriate when not associated with the positive steps towards rehabilitation that were present in that case.

[15]     Ms Smith acknowledged that the period when you were in custody for six weeks following the breach in April 2009 was in the nature of punishment for an

1           R v Potoru HC AK CRI-2006-092-003877 [14 September 2007].

egregious breach.  She deferred making an application for bail on that count.  That said, however, she did not accept that the periods you spent in custody on remand should be treated as punishment for the breaches that precipitated the second and third of the periods of remand.

[16]     I am prepared to accept that some allowance should be made for the fact that two of the remands in custody were precipitated by breaches of bail but I am of the clear view that any such allowance should be modest indeed.  I have already been asked to impose some uplift for the fact that you offended while on bail and it was that which prompted the third period of remand in custody.  For that reason, I am disinclined to give anything other than full credit for the twelve-week remand which followed.  It may be that a short period of imprisonment could properly have been imposed for the breach of bail committed in April 2009, but six weeks would have been an extraordinarily harsh sentence.  In my view, you should be given credit for the greater part of the almost six months that you have already spent in prison.

[17]     I accept that the period you spent on restrictive bail conditions were not associated with the positive steps towards rehabilitation that were present in Potoru. On the other hand, it is not to be overlooked that during the period when you were subject to a 24-hour curfew, you were engaged in gainful employment.

[18]     In the end, something of a value judgment is required.   If I begin with the two-year starting point, make some modest allowance for the fact that during the period of remand you reoffended, and give what I regard as appropriate credit for the

25 weeks you spent in custody and the 18 months on restrictive bail conditions, I consider that a reduction of one year in the appropriate term of imprisonment is the minimum that is justified.

[19]     The home detention report is favourable.  The proposed address is said to be suitable.  Your half-sister, Ms Rhonda Ashford, is the only other occupant of adult age.   She is assessed as suitable and has signed an agreement consenting to your remaining at her residence.   You have signed an agreement also and the report indicates there is nothing to indicate that you would not comply with conditions of a sentence of home detention.

[20]     The  report  contains  a  discussion  of  the  prospects  of  your  being  able  to undertake employment while you are on a sentence of home detention.   I do not think it is necessary for me to say anything about that other than to express the hope that it will be possible for that to be achieved.  I consider that the appropriate term of home detention which you should be required to serve is one of six months.

Result

[21]     You are sentenced to six months home detention on conditions that:

a)       You reside at 11A Cracroft Street, Otahuhu, for the duration of the home detention.

b)You are to proceed directly to 11A Cracroft Street, Otahuhu, and there await the arrival of the probation officer and the officer of the monitoring company.

c)       You abstain from the consumption of alcohol and illicit drugs while subject to home detention.

d)You attend an assessment for alcohol and drug use and undertake such counselling for substance abuse as directed by the probation officer.

e)       You attend such other counselling programmes as directed by the probation officer.

f)        You are not to associate with or contact your co-offenders for the duration of home detention and, if applicable, also the term of post- detention conditions.

Final remarks

[22]     You might remember, Mr Tere, the remarks I made at the last sentencing about the opportunity that all of you have to make important changes to your life.  I

recall, in the course of the trial, evidence being given about your talents as an artist and the amount of time that you spent drawing.   I don’t know what sort of opportunities might be  available for  you to develop the creative skills that  you obviously have.   But it does seem to me that you are a young man of some real potential and if you take this opportunity to make a renewed commitment to developing new skills and introducing some structure and discipline into your life, it could be a very promising future ahead for you.  So I wish you well.  You may stand down.