Tasi v Police

[2019] NZHC 2186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-385

[2019] NZHC 2186

BETWEEN

CHRISTOPHER TASI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Appearances:

D Ratima for Appellant

C Howard for Respondent

Judgment:

3 September 2019

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 3 September 2019 at 3 pm.

Registrar/Deputy Registrar Date……………

TASI v NEW ZEALAND POLICE [2019] NZHC 2186 [3 September 2019]

[1]    Mr Tasi pleaded guilty in the District Court to seven charges. These comprised charges of dangerous driving causing injury, driving under the influence of a drug, unlicensed driving, unlawfully taking a motor vehicle, and being in possession of a methamphetamine pipe, methamphetamine and an offensive weapon. The offending occurred in three tranches between June and November 2018.

[2]    Mr Tasi entered his guilty pleas following a sentence indication given by Judge Winter on 29 January 2019.1 He was subsequently sentenced by Judge D Clark on  22 February 2019 because Judge Winter was unavailable on that date. Judge Clark adopted Judge Winter’s sentence indication and sentenced Mr Tasi to 20 months imprisonment. She also granted Mr Tasi leave to apply for the sentence to be converted to one of home detention.2

[3]    On 16 July 2019 Judge Lovell-Smith converted the sentence of imprisonment to a sentence of ten months home detention commencing on that date.3 He was to serve that sentence at Odyssey House, where he would undergo rehabilitation for substance addiction.

[4]    Mr Tasi appeals against sentence on the basis that the Judge erred in principle in fixing the length of the sentence of home detention and this has led to an end sentence that is manifestly excessive.

The appeal

[5]    Mr Tasi remained in custody between 27 November 2018 and his release to commence serving the sentence of home detention on 16 July 2019. As a result, he was in custody for approximately seven and a half months before being required to commence the sentence of home detention. On Mr Tasi’s behalf Ms Ratima submits the Judge erred in not taking this fact into account when fixing the sentence of home detention.

1      Police v Tasi DC Manukau CRI-2018-092-6835, 29 January 2019.

2      Sentencing Act 2002, s 80I.

3      New Zealand Police v Tasi [2019] NZDC 13925.

[6]    The Crown concedes this ground of appeal. It agrees the Judge ought to have taken into account the time Mr Tasi spent in custody in fixing the length of the sentence of home detention. This flows from s 80K(6) of the Sentencing Act 2002 (the Act), which requires the Court to take into account the portion of the original sentence that is yet to be served at the time the sentence is converted to one of home detention.

Decision

[7]    Mr Tasi had effectively served approximately 15 months of his original sentence when he was re-sentenced on 16 July 2019. This reflects the fact that he was eligible for automatic release after serving one-half of his sentence.4 At the date of his re-sentencing he was therefore required to serve five further months of his original sentence. As a result, he would have been eligible for release from prison in September 2019. That fact ought to have been taken into account when he was re-sentenced.

[8]    A sentence of five months imprisonment is broadly equivalent to a sentence of two months and two weeks home detention because, unlike a short sentence of imprisonment, a sentence of home detention must be served in full.

[9]    The appeal is accordingly allowed, and the sentence of ten months home detention is quashed. In its place Mr Tasi is required to serve a sentence of two months and two weeks home detention commencing on 16 July 2019.

[10]   Where the Court imposes a sentence of less than six months home detention it may impose the standard post-detention conditions set out in s 80O of the Act and any special post-detention conditions that may be necessary under s 80P of the Act.5 If the Court imposes such conditions it must also specify when the conditions are to expire.6 This must be between six and twelve months after the sentence of home detention has been served.7

4      Parole Act 2002, s 86.

5      Sentencing Act 2002, s 80N(1).

6      Sentencing Act 2002, s 80N(1).

7      Sentencing Act 2002, s 80N(3) and (4).

[11]   Counsel agree that the Court should make standard post-detention conditions and also special post-detention  conditions.  The  latter  are  designed  to  assist  in Mr Tasi’s rehabilitation and to reflect the fact that he presents a significant risk of re- offending in the future if appropriate special conditions are not imposed.

[12]   I therefore make an order that Mr Tasi is to be subject to the standard post- detention conditions and the following special conditions:

(a)He is to comply with the rules and requirements of Odyssey House to the satisfaction of Odyssey House and his probation officer until the completion of his programme.

(b)He is not to consume or use alcohol, any psychoactive substance, or any controlled drug.

[13]   Both sets of conditions are to expire six months after the completion of the sentence of home detention.

Lang J

Solicitors/Counsel:

Kayes Fletcher Walker, Manukau D Ratima, Barrister, Onehunga