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…

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 Tasi v Police

Details

AGLC: Tasi v Police [2019] NZHC 2186
Case: [2019] NZHC 2186
Decision Date: 3 September 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Tasi v Police involved an appeal against the sentence handed down to the appellant, Mr Tasi, by Judge D Clark. Mr Tasi had been found guilty of several charges including dangerous driving causing injury and possession of a methamphetamine pipe, methamphetamine and an offensive weapon. Following a sentence indication by Judge Winter, Judge D Clark sentenced Mr Tasi to 20 months imprisonment, with leave granted to apply for conversion to home detention. This sentence was later converted by Judge Lovell-Smith to a sentence of ten months home detention.

The legal issues in this case centred on whether the length of the sentence of home detention was properly determined by Judge Lovell-Smith. Specifically, the appellant argued that the Judge erred in principle by not taking into account the time Mr Tasi had already spent in custody when determining the length of the home detention sentence. This argument was grounded in section 80K(6) of the Sentencing Act 2002, which mandates that the Court consider the portion of the original sentence that remains unserved at the time of conversion to home detention. The Crown conceded this point, agreeing that the Judge should have taken into account the seven and a half months Mr Tasi spent in custody.

The Court found that Mr Tasi had effectively served around 15 months of his original sentence when his sentence was converted to home detention. As a result, he was required to serve only five further months of his original sentence, which would have made him eligible for release from prison in September 2019. Therefore, the Court deemed the sentence of ten months home detention to be manifestly excessive and allowed the appeal. The sentence was quashed and replaced with a sentence of two months and two weeks home detention, to begin on 16 July 2019. The Court also imposed standard and special post-detention conditions to assist in Mr Tasi's rehabilitation and to mitigate the risk of re-offending. These conditions were set to expire six months after the completion of the sentence of home detention.

Orders