Sefesi v Police HC Wellington CRI 2010-485-68
[2010] NZHC 2036
•17 September 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2010-485-68
ROMANOSKI SEFESI
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 17 September 2010
Counsel: N J Sainsbury for Appellant
K S Grau for Respondent
Judgment: 17 September 2010 at Oral
ORAL JUDGMENT OF MACKENZIE J
[1] This is an appeal against a sentence of 12 months imprisonment imposed in the District Court at Wellington on 9 June 2010 by Judge Barry on a count of assault with intent to injure.
[2] The offending arose out of a brawl outside a bar on Courtenay Place on
8 November 2009. A number of offenders were involved. The one count which the appellant faced arose because while fighting was taking place between one of his friends and the other group in the confrontation, the appellant attacked a person who was fighting his friend punching and kicking him to the head and the body. The
victim was by then being restrained by other members of the group and was unable
SEFESI V NEW ZEALAND POLICE HC WN CRI-2010-485-68 17 September 2010
to defend himself in any meaningful way. The victim suffered bruising to the head and body.
[3] The sentence to be imposed on the appellant had been the subject of an earlier sentencing indication by Judge Barry. The effect of that indication was set out in the sentencing notes. The Judge said in the sentencing notes that he had indicated that the offending warranted a starting point of 12 months with an uplift of six months for personal aggravating factors, in particular the appellant’s prior history of violence. It appears from the submissions of counsel that the 12 months may have been the bottom of a range of suggested in that the possibility of an end sentence of
16 months was mentioned. The Judge would have allowed a discount of one third being full credit for the pre-committal guilty pleas leaving an end sentence of
12 months which, as I have indicated, did seem to be at the bottom of a range in the sentencing indication rather than an actual sentence having been indicated. The Judge had said in his sentencing indication also that he could not give any positive indication as to an electronically monitored sentence, but neither would he rule it out and it would remain to be dictated by pre-sentence reports and information received.
[4] At the time of sentencing, no up to date pre-sentence report had been prepared. The Judge recorded that the appellant was sent a letter instructing him to report for an interview but that he failed to attend that appointment and did not contact the office to reschedule. As a follow up his address was visited by the probation officer. The appellant’s sister was spoken to and she agreed to inform him that he needed to contact probation as soon as possible. There was no further contact. The Judge therefore noted that there was no appendix to consider the possibility of an electronically monitored sentence and a report had been prepared based on an earlier pre-sentence report. The Judge considered that the appellant should have done more to follow up on the pre-sentencing report by contacting probation. That, along with the failures to complete sentences of community work, led the Judge to decline to impose an electronically monitored sentence or to adjourn sentencing for a further pre-sentence report.
[5] This appeal was first heard by me on 17 August. The essence of the appeal was stated by counsel for the appellant to be that the sentencing should have been
postponed for a full pre-sentence report with appendices to be prepared. That submission was supported by affidavits from the appellant and his sister in which the appellant said that he did not see any letters from probation and did not find out from his sister until the day before sentencing that someone had called and left a number for him to call. His sister confirms the timing of the passing on of the message.
[6] In those circumstances, I formed the view that a full pre-sentence report with appendices should be obtained so that the sentence could be reassessed. Because the appellant was then serving his sentence, I considered that the matter needed to be addressed with all due dispatch. I considered that this would be best achieved by dealing with the sentencing in this Court rather than by referring the matter back. I accordingly adjourned the matter to a further hearing today and directed that a report be obtained.
[7] I now have the benefit of a full pre-sentence report.
[8] Mr Sefesi you are 28 years of age, of Tongan decent, living in Wellington with your mother and sister and niece. You are not currently in a relationship and do not have any children. You have a close and supportive relationship with your mother with whom you have lived for several years. You have a history of alcohol and drug abuse and of serious mental illness having been variously diagnosed with paranoid schizophrenia and bipolar effective disorder. You have a long association with a Pacific Island gang. Your mother has confirmed this information. She regards you as the black sheep of the family but is very supportive of you. You have expressed remorse for your offending and agreed you have issues with alcohol use and poor control of anger. The key factors identified as contributing to your offending behaviour are your abuse of alcohol and willingness to use violence. You are regarded as being at high risk of reoffending in a similar manner and also of breaching any further community based sentences that may be imposed. The probation officer is of the view that home detention could be considered as an appropriate alternative to prison in your case. The proposed address, where you live with your mother sister and niece, is suitable. Your mother and sister have expressed a desire to have you on home detention on full electronic monitoring and indicated
they would be supportive. You are assessed as being suitable for a sentence of home detention.
[9] The sentence which was imposed on you was one which was properly open to the sentencing Judge. He however did not have the benefit of this additional information. Had he had this additional information I regard it as by no means certain that he would have been prepared to impose a sentence of home detention as opposed to a sentence of imprisonment. Nevertheless, in all the circumstances, I consider that I should now reassess the matter on the basis of the report which I now have. My assessment is that, confined to the home as you would be under a sentence of home detention, the supportive environment which would be available to you would provide a better rehabilitative component to your sentence than prison. The extent of your offending is such that the punitive and deterrent elements which must be reflected in the sentence do not rule out a sentence of home detention. I also take into account that in his sentencing indication Judge Barry did not rule out a sentence of home detention. I have some concerns about this form of sentence, in the light of the high risk of your breaching any form of community based sentence. Notwithstanding those concerns I am prepared, in this instance, to impose such a sentence. There is an opportunity being extended to you and you need to take the opportunity to show that you can respond positively to the chance that is being given to you. Accordingly I consider that notwithstanding that while, as I have indicated, the sentence imposed by the Judge on the information available to him could not be seen to be manifestly excessive in all the circumstances, I consider that the appeal should be allowed by substituting a sentence of home detention.
[10] That brings me to the length of term which should be imposed. I need to take into account the sentence that you have already served in fixing the appropriate length of home detention. The law is that for a short term imprisonment, as you are presently serving, you must serve one half of that and would then be released. A sentence of home detention must be served in full. So you have now served just over three months and one week of your sentence of imprisonment. You would be released on completing six months of that sentence. If a sentence of home detention is imposed in substitution, you must serve the whole of that sentence. I think that I must taken into account that you would be released in just under three months if I
were not to interfere with the sentence. As against that the sentence is a substantially less restrictive one where a slightly longer term might be appropriate. Counsel for the respondent makes the point that a term of three months or less may not be sufficient to enable the rehabilitative effects of the sentence to be obtained. In all the circumstances I consider that an appropriate term of home detention to impose at this stage is four months. It needs to be made clear that I am not substituting for a sentence of 12 months imprisonment a sentence of four months home detention. I am taking into account the circumstances of what has already been served in coming to that view.
[11] The appeal is accordingly allowed. The sentence imposed in the District Court is quashed. In substitution I impose a sentence of four months home detention. That will commence as soon as appropriate arrangements can be made for your release from prison and for the monitoring arrangements at your home detention address. The sentence will be subject to the standard conditions and the following special conditions which will apply during the sentence and for six months thereafter:
a) You are to go, when released from prison, directly to 70 Wellington Road, Hataitai, Wellington, and await the arrival of the monitoring company and the probation officer;
b)You are to attend alcohol and drug counselling as directed by the probation officer;
c) You are to attend a psychological assessment and any required counselling as directed by the probation officer;
d)You are to attend any other required counselling or treatment as directed by the probation officer;
e) You are not to consume any alcohol or illicit drugs;
f) You are not to have any contact with the victim without the consent of the probation officer; and
g) You are not to associate with members of the Full Blooded Islanders. [12] Thank you, you may stand down.
“A D MacKenzie J”
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