Tanoa v Police - [2017] NZHC 2836

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 Respondent

Judgment:

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…

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 Tanoa v Police

Details

AGLC: Tanoa v Police [2017] NZHC 2836
Case: [2017] NZHC 2836
Decision Date: 17 November 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Eritana Elizabeth Tanoa appealed against her sentence imposed by Judge AJ Adeane in the Napier District Court. The appeal was allowed, as the Judge failed to consider home detention as an appropriate alternative to imprisonment. The appeal was based on the grounds that the Judge erred in not considering whether to substitute the sentence with home detention and that the sentence was therefore manifestly excessive. The Court of Appeal found that the Judge's comments indicated a presumption of an end sentence of imprisonment, without proper consideration of home detention. The Court of Appeal also found that the Judge made adverse inferences about Ms Tanoa's ability to care for her son, in the absence of any evidence. The Court of Appeal found that deterrence, denunciation, accountability, and rehabilitation may all be met by a sentence of home detention. The Court of Appeal also found that the care of Ms Tanoa's 12-year-old son should weigh in the balance in favour of home detention, to allow her to provide for his ongoing care and minimize the impact of her sentence on his life. The appeal was allowed, and the sentence of nine months' imprisonment was quashed. A sentence of three months' home detention, to be served at the address set out in the home detention report, was 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. Special post-detention conditions were imposed on Ms Tanoa's release, as provided under s 80P(2)(c) and (d) of the Sentencing Act 2002, because the Court was satisfied there was a significant risk of reoffending, and standard conditions alone would not adequately reduce that risk. The home detention special conditions recommended by the Department of Corrections in the PAC report would reduce the risk of reoffending by providing rehabilitation/reintegration. Those conditions shall apply from Ms Tanoa's release from the home detention sentence imposed by the Court of Appeal. They will expire six months from the end of the sentence of home detention.

Orders