Tanoa v Police
[2017] NZHC 2836
•17 November 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2017-441-31 [2017] NZHC 2836
BETWEEN ERITANA ELIZABETH TANOA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 November 2017 Appearances:
W Hawkins for the Appellant
C R Stuart for the RespondentJudgment:
17 November 2017
REASONS JUDGMENT OF CULL J
[1] On 29 August 2017, Eritana Elizabeth Tanoa was sentenced by Judge AJ Adeane in the Napier District Court to nine months’ imprisonment following guilty pleas for multiple theft and other charges. Ms Tanoa appeals her sentence on the basis that the Judge erred in not considering whether to substitute the sentence with home detention and it was therefore manifestly excessive.
[2] Having read Counsel’s submissions and heard from Counsel at the hearing, I allowed the appeal, with the reasons for my decision being delivered later. This judgment contains the reasons for my decision and the result of my decision, which
was delivered on 7 November 2017.
TANOA v NEW ZEALAND POLICE [2017] NZHC 2836 [17 November 2017]
Factual background
[3] Ms Tanoa pleaded guilty to a variety of offending spanning some nine months, as follows:
(a) two charges of failing to report for community work on 12 and 23
September 2016;1
(b) one charge of failing to attend bail on 14 December 2016;2
(c) one charge of theft over $1,000 for taking a lawnmower and other products from Warehouse Hastings on 22 January 2017;3
(d) eight charges of theft under $500 comprising:4
(i) $89.90 of goods from Warehouse Napier on 22 November 2016;
(ii) $172.70 of food and other goods from Four Square Taradale on
17 December 2016;
(iii) $164.91 of health and beauty products from Four Square
Taradale on 29 December 2016;
(iv) $136.25 of health products and household goods from Four
Square Taradale on 2 January 2017;
(v)$27.08 of food and health products from Four Square Taradale on 3 January 2017;
(vi) $96.92 of beauty products from Pak n Save Hastings on 3 March
2017;
1 Sentencing Act 2002, s 71(1)(f); maximum sentence three months’ imprisonment or $1000 fine.
2 Bail Act 2000, s 38(a); maximum sentence one year imprisonment or $2,000 fine.
3 Crimes Act 1961, ss 219 and 223(b); maximum sentence seven years’ imprisonment.
4 Crimes Act 1961, ss 219 and 223(d); each carrying maximum sentence three months’
imprisonment.
(vii) $142.98 of grocery items from Pak n Save Tamatea on 23 May
2017; and
(viii) $199.99 of bed linen from Briscoes, Hastings on 24 May 2017;
(e) two charges of trespass, one at New World in Napier on 6 September
2016, and the other at Pak n Save Hastings on 3 March 2017;5 and
(f) one charge of driving while disqualified at Napier on 25 April 2017.6
PAC report
[4] The PAC report notes Ms Tanoa has a history of offending, and was unemployed during the periods in which she offended. She cited lack of income as her motivation for theft, as well as boredom. The writer reported she understood her actions were wrong, continued despite knowledge of the consequences, and had a lack of insight into her offending. In the writer’s opinion, Ms Tanoa exhibited poor problem solving skills, lack of impulse control, and a sense of entitlement.
[5] The writer noted three previous breaches of community work, in addition to the two related to the present appeal, and three previous failures to answer bail. Ms Tanoa’s explanation was trips to hospital with her sick son. Some of her current offending was committed while on bail for other offending, but she has since complied well with EM Bail for the present offending, with only one breach.
[6] Ms Tanoa’s risk of reoffending was assessed as high, but her risk of harm as low.
[7] The report recommended home detention along with rehabilitation conditions, but noted imprisonment was also an option for a harsher penalty. It assessed her
proposed home detention address (her Housing New Zealand home) as suitable,
5 Trespass Act 1980, ss 4(4) and 11(20(a); maximum sentence three months’ imprisonment.
6 Land Transport Act 1998, ss 32(1)(c) and 32(3); maximum sentence three months’ imprisonment or $4,500 fine.
despite Police expressing concern about previous domestic violence call-outs in relation to her ex-partner.
[8] The report noted Ms Tanoa cares for her 12 year old son. Her four year old son lives with the children’s father, with whom she maintains a good co-parenting relationship. It is not clear if the father is the same person as the ex-partner with whom domestic violence incidents have previously occurred.
District Court decision
[9] The Judge’s sentencing notes briefly identified the offending and concluded Ms Tanoa showed little sense of responsibility towards her community or the child in her care. He discussed the negative aspects of the PAC report, focusing on her “clear sense of entitlement”. He considered, in that context, that nothing short of a custodial sentence would suffice. I set out his sentencing considerations in full:
[7] This matter cannot be met short of a full-time custodial sentence. Ms Tanoa has reached an age where she needs to understand that accumulating offending will have accumulating and eventually serious consequences.
[8] For the theft over $1000 she is now sentenced to nine months’
imprisonment.
[9] For the other shoplifting matter she is sentenced to one month’s imprisonment concurrently on each, for driving while suspended one month’s imprisonment, for breaching community work one month’s imprisonment.
[10] I note that the document charges have been withdrawn.
[11] The end sentence is one of nine months’ imprisonment. This allows for the guilty pleas which have been entered. I refrain from any uplift for the multiple nature of the offending or, indeed, for the defendant’s significant previous similar history.
[12] Reparation per schedule.
Submissions
[10] Mr Hawkins, for Ms Tanoa, submits the Judge failed to properly consider home detention as an option. He submits that while the Judge considered the circumstances required a sentence of imprisonment, his Honour ought to have expressly considered
whether home detention would satisfy the principles and purposes of sentencing. He points to Fomai v Police in support of this contention.7
[11] The Crown submissions were prepared without the benefit of appellant submissions. Nevertheless, the Crown submits the Judge properly rejected home detention in the circumstances. Whether to impose home detention is an exercise of fettered discretion,8 guided only by the need to properly consider the purposes and principles of sentencing. The Crown submits that in circumstances where the offending was grave and the offender had several previous convictions for theft, a pattern of non-compliance, lack of remorse and insight, home detention was not a suitable option.
Law
[12] Section 250 of the Criminal Procedure Act 2011 states:
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.
[13] In sentence appeals, the appellate court must first find an intrinsic error or one resulting from additional material before assessing whether a different sentence should be imposed.9 The error must be material, and must point to grounds for imposing a different sentence. Those grounds include that the sentence was inappropriate in the particular circumstances.
[14] Section 15A of the Sentencing Act 2002 provides:
15A Sentence of home detention
(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less
7 Fomai v Police [2014] NZHC 377 at [18].
8 Manikpersadh v R [2011] NZCA 452.
9 Tutakangahau v R [2014] NZCA 279 at [30] citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].
restrictive sentence or combination of sentences; and
(b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.
(2) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[15] The decision to grant or decline home detention is the exercise of a fettered discretion. As such, the Judge must have made an error of principle, an error of law or been plainly wrong before appellate intervention is justified.10
[16] Errors of law in terms of determining if home detention should be imposed include:
(a) Failure to consider whether home detention should be imposed if it is technically available within the terms of s 15A, even if no submission is made in favour of home detention. Such a failure allows an appellate court to consider the matter afresh.11
(b)An assessment that focuses only on one principle or purpose of sentencing (such as deterrence) to the exclusion of others.12
Analysis
Relevant error
[17] The appellate cases to which Mr Hawkins refers provide support for his contention that home detention was not considered and that this oversight was in error. Those cases concern appeals from the District Court where the option of home
10 Manikpersadh, above n 8, at [12]; James v R [2010] NZCA 206 at [17]; and R v D [2008] NZCA
254 at [66].
11 Fomai v Police, above n 7; Howard v Police [2015] NZHC 150; and Fonoti v Police [2015] NZHC
200.
12 Fairbrother v R [2013] NZCA 340 at [30]; and Manikpersadh, above n 8, at [18]–[19].
detention has been overlooked. For instance, Peters J in the High Court noted as follows:13
[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 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.
[18] Woolford J, also in the High Court, stated:14
[18] On this point, as on other relevant points, I acknowledge that a Judge sentencing in the District Court, and possibly in a busy list Court, cannot be expected to articulate every point that may be relevant. However, giving that consideration proper weight, I do not consider it is possible to infer that the Judge gave consideration to home detention. A sentencing Judge is bound to consider home detention, if it is technically available in terms of s 15A of the Sentencing Act, notwithstanding that there is no submission for a defendant that home detention should be imposed. For this reason the question of home detention needs to be assessed by this Court. It is not an assessment on appeal of the exercise of a discretion by the sentencing Judge, but an original exercise of discretion by this Court.
[19] The same reasoning applies in the current case. Although the Crown is correct to point out the question of whether to impose home detention is discretionary, the question itself is required to be asked as a matter of law, with reference to the relevant purposes and principles of sentencing.
[20] Although the Judge concluded that the offending “cannot be met short of a full- time custodial sentence”, it cannot be inferred that the Judge gave consideration to home detention as a real alternative to imprisonment, satisfying the goals of deterrence and denunciation, which often taken prominence in theft offending. In the context of a lawyer’s theft of client funds, the Court of Appeal said:15
[41] The sentence of home detention … indeed provides a real alternative to imprisonment. It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short- term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment. In cases of more serious offending which
13 Namana v Police [2017] NZHC 66.
14 Fomai, above n 7.
15 R v Iosefa [2008] NZCA 453.
justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.
[21] I accept Mr Hawkins submission, that the Judge’s comments at [7] indicate a presumption of an end sentence of imprisonment, without the benefit of proper consideration of home detention. Moreover, it appears that the Judge has made adverse inferences about Ms Tanoa’s ability to care for her son, in the absence of any evidence. To the contrary, the PAC report writer indicated that none of the relevant authorities had revealed any concerns about the care she provided.
Should home detention be imposed?
[22] The concerns raised by the Crown do not displace the fact that deterrence and denunciation, accountability and rehabilitation may all be met by a sentence of home detention. The PAC report writer was appraised of all those concerns, which were insufficient to persuade the writer that home detention was not appropriate. Although there are concerns about the level of insight Ms Tanoa has expressed regarding her offending, such concerns may well be met by ordering, as the report writer recommended, appropriate counselling, treatment and budgeting programmes.
[23] Weighing in the mix is the care of Ms Tanoa’s 12 year old son. It is not clear who is caring for her son at this time, but that Ms Tanoa was his caregiver ought to weigh in the balance. If it were finely balanced, following s 16(1) which requires the Court to “have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”, this tips the scales in favour of home detention, to allow her to provide for his ongoing care and minimizing the impact of her sentence on his life.
Fresh charge
[24] During the hearing, Mr Hawkins advised that Ms Tanoa has been arrested and charged with shoplifting last weekend and is currently in custody, awaiting her appearance in the District Court. Mr Hawkins referred to s 251(2) and (3) of the Criminal Procedure Act 2011 and submits that the disposition of this appeal should be remitted back to the District Court for issues of bail and sentence on the new charge,
as well as the charges on appeal together. Mr Stuart concurs with Mr Hawkins’
submission.
[25] I have given consideration to the High Court jurisdiction on this appeal against sentence. The fresh charge is not before the High Court and at this stage, no appearance has been made and no plea has been entered. It is uncertain what the outcome may be to that charge. The sentence appeal currently before the High Court should be disposed of on the charges and information currently before the Court. In the circumstances, I do not consider it appropriate therefore, to remit this matter back to the District Court for resentencing.
Conclusion
[26] The appeal is allowed. The Judge made two errors. First, his Honour failed to properly consider whether home detention was appropriate in light of the qualifying sentence imposed. Secondly, his Honour erred in focusing on one purpose of sentencing at the expense of others, such as rehabilitation, and other relevant concerns such as those indicated by s 16.
Result
[27] I therefore make the following orders:
(a) The appeal is allowed.
(b) The sentence of nine months’ imprisonment is quashed.
(c) A sentence of three months’ home detention, to be served at the address set out in the home detention report, is imposed in substitution for the former sentence, being a starting sentence of four months reduced to three months, taking into account that Ms Tanoa has been in custody for two months.
(d)There will be special post-detention conditions imposed on Ms Tanoa’s release, as provided under s 80P(2)(c) and (d) of the Sentence Act 2002,
because I am satisfied there is a significant risk of reoffending and standard conditions alone will not adequately reduce that risk. The home detention special conditions recommended by the Department of Corrections in the PAC report will reduce the risk of reoffending by providing rehabilitation/reintegration. Those conditions shall apply from Ms Tanoa’s release from the home detention sentence I have now imposed. They will expire six months from the end of the sentence of home detention and are:
(i)To attend an assessment for a departmental programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(ii)To attend and complete an appropriate budgeting programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(iii)Not to possess, consume or use any alcohol or drugs not prescribed to Ms Tanoa.
Cull J
Solicitors:
Public Defence Service
Elvidges
3
7
0