Te Namu v Police - [2013] NZHC 3443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000299 [2013] NZHC 3443

BETWEEN BRYCE TE NAMU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2013

Appearances: J W Griffiths for Appellant
J B Hamlin for Respondent

Judgment: 17 December 2013

JUDGMENT OF COURNTEY J

This judgment was delivered by Justice Courtney on 17 December 2013 at 3.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

TE NAMU v NZ POLICE [2013] NZHC 3443 [17 December 2013]

Introduction

[1] On 15 July 2013 Judge Johns dealt with an application for an order cancelling a sentence of community work imposed on Bryce Te Namu and gave a sentencing indication in relation to one charge of breach of community work and also charges of male assaults female, wilful damage, wilful trespass. His counsel, Mr Griffiths, advised the Judge that Mr Te Namu could not complete the community detention sentence because he was the sole care-giver for his young son.

[2] The Judge made an order cancelling the community work sentence. In relation to the sentencing indication she noted on the information “indicated CD [community detention] and supervision”.

[3] In her sentencing indication notes the Judge said:

He would need to have an electronically monitored sentence in relation to the community work if he cannot do it. It will be something like community detention depending on the pre-sentence report. He obviously has not learnt from his last special condition that he needs to do something about his anger issues. That would be the sort of sentence I would be looking at.

[4] In reliance on the sentence indication Mr Te Namu pleaded guilty to all the charges. He appeared before Judge Simpson in the District Court at Papakura an
11 October 2013 for sentence. She imposed sentences of 12 months’ supervision, four months community detention and reparation of $269 for the trespass, intentional damage and male assaults female charges. She imposed 200 hours community service for the breach of community work.

[5] Mr Te Namu appeals conviction and sentence for the breach of community work charge on the grounds that Judge Simpson’s sentencing was different from Judge Johns’ indication which did not suggest that a sentence of community work was to be imposed. The appellant submits that if Judge Simpson intended to depart from the sentencing indication she should have given Mr Te Namu an opportunity to vacate his guilty plea.

[6] In addition, Mr Hamlin advised that the sentences recorded by the court do

not reflect the Judge’s sentencing notes and actually show four sentences of 200

hours community service (it presumably having been wrongly assumed that concurrent sentences of community work were imposed on all the charges).

[7] The appellant appeals his conviction and sentences on the grounds that the

Judge erred in:

(a) not indicating that she intended to deviate from the sentencing indication of Judge Johns and giving Mr Te Namu the opportunity to seek leave to vacate his guilty plea;

(b)imposing…

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.

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Details

Case: [2013] NZHC 3443
Decision Date: 17 December 2013

CaseChat Overview and Summary

In Te Namu v Police, the appellant, Bryce Te Namu, appealed against his conviction and sentence for breach of community work, which he received as part of his sentence for various other charges. The appeal centred on two primary grounds: the deviation from a prior sentencing indication provided by Judge Johns, and the inappropriateness of the community work sentence given Mr Te Namu's status as a sole caregiver for his young son. The appeal was heard and determined by Justice Courtney on 17 December 2013.

The legal issues before the court were whether the sentencing judge, Judge Simpson, erred in imposing a sentence that deviated from the earlier indication by Judge Johns, and whether the sentence of community work was appropriate given Mr Te Namu's childcare responsibilities. The court considered whether Judge Simpson was required to indicate any deviation from the sentencing indication and whether this failure warranted an opportunity for Mr Te Namu to withdraw his guilty plea. Additionally, the court examined the appropriateness of the community work sentence in light of Mr Te Namu's personal circumstances.

Justice Courtney found that the sentence indicated by Judge Johns did not include community work, and thus, Judge Simpson's imposition of such a sentence was inconsistent with the indication. Under section 115(2)(b) of the Criminal Proceedings Act 2011, the court is obligated to allow a defendant to withdraw a guilty plea if the sentencing judge intends to impose a different type or duration of sentence than specified in the indication. Judge Simpson's failure to indicate any deviation from the indication constituted an error. Furthermore, the court held that the community work sentence was inappropriate given Mr Te Namu's role as a sole caregiver for his child, as noted in the probation report.

The court allowed the appeal and quashed the sentence of community work imposed for the breach of community work charge. In its place, a sentence of two months of community detention, cumulative upon the existing community detention sentence, was substituted. The court also quashed any sentences of community work that may have been imposed or recorded in relation to the other charges. This decision was made after considering that Mr Te Namu did not wish to vacate his guilty plea but merely sought an alternative sentence that did not include community work.

Orders