Tanoa v Police

[2017] NZHC 2722

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-31 [2017] NZHC 2722

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:	7 November 2017

RESULTS 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 that sentence on the basis that the Judge erred in not considering whether to substitute the sentence with home detention and was therefore manifestly excessive.

[2]      Having read Counsels’ submissions and heard from Counsel at the hearing today, I am allowing the appeal. The reasons for my decision will be delivered later.

[3]      During the hearing, Mr Hawkins for Ms Tanoa 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

TANOA v NEW ZEALAND POLICE [2017] NZHC 2722 [7 November 2017]

charge, as well as the charges on appeal together. Mr Stuart concurs with Mr Hawkins’

submission.

[4]      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.

[5]      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 of 4 Lodge Road, Maraenui, Napier, 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 and 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