Reihana v Police

[2014] NZHC 2173

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-418-000008 [2014] NZHC 2173

AROHA REIHANA Appellant

v

POLICE Respondent

Hearing:	4 September 2014
Counsel:	J Lucas and C Hislop for Appellant MAJ Elliott for Respondent
Judgment:	9 September 2014

JUDGMENT OF WHATA J

[1]      Ms Aroha Reihana appeals a sentence of one year six months imprisonment imposed on two burglary charges.  At the hearing of this matter it became clear that the proper outcome was that the appeal should be allowed and that the Court should impose a shorter term of imprisonment than normal to allow the appellant to attend “He Waka Tapu” on 28 October 2014.   It was further agreed that the shorter term would include standard and special release conditions.  The parties were given leave to produce a set of release conditions that might be appropriately imposed.

[2]      In the result the appeal is allowed and the agreed end sentence will be eight months and 14 days imprisonment with standard and special release conditions for a period of six months as per paragraphs [13] and [14] below.

[3]      Given the importance of transparency, I now set out the reasons why this course is appropriate.

REIHANA v POLICE [2014] NZHC 2173 [9 September 2014]

[4]      Judge B P Callaghan delivering sentence had this to say:1

[10]      But, as I have mentioned my intent with the sentence is to ensure that you can take the continued steps to your rehabilitation and I am going to give you leave to apply to substitute this sentence for home detention if there is a suitable residential facility available, such as what I have been told in the reports and from submissions as He Waka Tapu, which I understand according to a message related to the Court is prepared to take you.  It has a space booked for you commencing 8 September 2014 and that will require an application to be made to the Court closer to the date to substitute the sentence of imprisonment for one of home detention.

[5]      Ms Reihana appealed her sentence on, among other grounds:

(a)      The  District  Court  Judge  approached  sentencing  on  an  incorrect factual basis, namely that home detention was available at He Waka Tapu; and

(b)      The least restrictive sentence taking into account the circumstances of the offending and the mitigating features of the appellant, is either a sentence of intensive supervision with a condition to attend He Waka Tapu or a short term of imprisonment which would allow for the appellant to be released to attend He Waka Tapu as soon as possible.

[6]      Two options are then promoted by the appellant for resentencing, namely:

(a)      Quash the sentence of imprisonment and impose a sentence of supervision or intensive supervision; or

(b)Impose  a shorter term  of imprisonment  than normal  to  allow the appellant to attend the He Waka Tapu in October.

[7]      The police acknowledged, properly in my view, that the Judge stated that his intent was to ensure that the appellant could take confirmed steps to rehabilitation and that the Judge was under the misapprehension that He Waka Tapu was able to

accommodate home detention.

1      Police v Reihana DC Greymouth CRI-2014-018-209, 1 July 2014.

Resolution

[8]      Section 250(2) of the Criminal Procedure Act 2011 states:

250      First appeal court to determine appeal

…

(2)      The first appeal court must allow the appeal if satisfied that

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

(b)  a different sentence should be imposed.

…

[9]      This  statutory threshold  test  reflects  a  synthesis  or  rationalisation  of  the existing provisions to provide a single test for those sentence appeals previously dealt with under two differently worded provisions, namely s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.2      The corollary of this is that the longstanding approach to sentence appeals remains apposite.  There must be a material error before the appellate Court will form its own view on the

appropriate sentence.   A sentence which is manifestly excessive, or wrong in principle, or flawed on its face, may be corrected on appeal.

[10]     Relevant to this case is the type of error referred to in Tutakangahau v R,

namely:3

A  straightforward  example  is  where  an  explicit  arithmetical  error  has occurred and would have been corrected if it had been drawn to the attention of the sentencing Judge at the time.  In those circumstances, we expect the appeal Court will impose the corrected sentence giving effect to the sentencing Judge’s intentions.

[11]     By parity of reasoning, the Judge incorrectly assumed that home detention could be accommodated by He Waka Tapu.  Having made that error, it is necessary for this Court to impose a corrected sentence giving effect to the sentencing Judge’s

intentions.

2      Refer Tutakangahau v R [2014] NZCA 279 at 26.

3 At [36].

[12]     There is no suggestion that the sentence of imprisonment was manifestly excessive (except insofar as concerns the level of discount provided by the Judge).  I think  that  the  Judge’s  sentence  in  this  regard  is  within  the  available  range  of sentences given the nature and gravity of the offending.   By way of further background, Ms Reihana has 51 previous convictions, including a significant history of dishonesty offending, burglary and obtaining by deception.  A sentence therefore of 18 months is not manifestly excessive.  But given the clear underlying intention of the Judge that there be an opportunity afforded to Ms Reihana to attend He Waka Tapu, I consider that the appropriate sentence is one that affords her that opportunity, while at the same time acknowledging the gravity of her offending via a period of imprisonment.

[13]     Based  on  the  foregoing,  I  endorse  the  second  option  promoted  by  the appellant and supported by the police.  Accordingly, the sentence shall be amended to a term of imprisonment of eight months 14 days with the standard release conditions as below:

(a)      The appellant must report in person to  a probation officer in  the probation area in which the offender resides as soon as practicable and not later than 72 hours, after release:

(b)The appellant must report to a probation officer as and when required to do so by a probation officer, and must notify the probation officer of her residential address and the nature and place of her employment when asked to do so:

(c)      The appellant must not move to a new residential address in another probation area without the prior written consent of the probation officer:

(d)If consent is given under paragraph (c), the appellant must report in person to a probation officer in the new probation area in which the appellant is to reside as soon as practicable, and not later than 72 hours, after the appellant’s arrival in the new area:

(e)      If an  appellant intends  to change her residential address within a probation   area,   the   appellant   must   give   the   probation   officer reasonable notice before moving from her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:

(f)       The appellant must not reside at any address at which a probation officer has directed the appellant not to reside:

(g)The  appellant  must  not  engage,  or  continue  to  engage,  in  any employment or occupation in which the probation officer has directed the appellant not to engage or continue to engage:

(h)The appellant must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the appellant not to associate:

(i)The appellant must take part in a rehabilitate and reintegrative needs assessment if and when directed to do so by a probation officer.

[14]     And special release conditions are:

(a)      The  appellant  must  immediately upon  release  from  prison  attend, reside at and complete the residential programme at He Waka Tapu from 28 October 2014 to 18 December 2014 to the satisfaction of a probation officer or He Waka Tapu service provider.

(b)The appellant must not leave the premises of He Waka Tapu for the duration of the residential programme without prior written consent of a probation officer.

(c)      The  appellant  must  attend  and  complete  an  alcohol  and  drug assessment and any alcohol and drug counselling programme deemed appropriate if directed by and to the satisfaction of a probation officer or service provider.

(d)The appellant must complete any other counselling and programme designed to prevent further offending if directed by and to the satisfaction of a Probation officer and service provider.

[15]     It appears that standard release condition as set out in [13](a) above was omitted in error by the parties in their joint memorandum.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch