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 a sentence of community work when it was not appropriate to do so in the circumstances.

The appeal

[8]      I  accept  that  the  sentence  indicated  by  Judge  Johns’  did  not  include community work.   The sentence imposed by Judge Simpson was therefore inconsistent with that indication.  Under s 115(2)(b) of the Criminal Proceedings Act

2011 the Court is required to grant leave to a defendant to withdraw a plea of guilty if the sentencing Judge proposes to impose a sentence of a different type or duration than  that  specified  in  the  sentence  indication.    A  judicial  officer  is  under  an obligation to indicate any proposed deviation from the sentencing indication before sentencing. 1   Judge Simpson’s failure to do that was an error.

[9]      Mr Griffiths also pointed out that community work was inappropriate because of Mr Te Namu’s childcare obligations and the probation report writer made that clear.

Result

[10]     In the usual course an appeal such as this would be dealt with by quashing the conviction and remitting the matter to the District Court.   However, Mr Griffiths indicated that Mr Te Namu did not wish to vacate his guilty plea.  He merely wanted

to  be  sentenced  in  a  way that  did  not  include  community work.    Mr  Griffiths

1      R v Gemmell [2000] 1 NZLR 695 (C) at [18] – [19].

proposed that a further two months of community detention cumulative upon the existing community detention sentence would be appropriate and Mr Hamlin agreed with that. After helpful discussion with counsel I ordered that:

(a)       The appeal is allowed;

(b)The sentence of community work imposed in relation to the breach of community work is quashed and a sentence of two months community detention is substituted, this to be cumulative upon the existing community detention sentence;

(c)      To  the  extent  that  sentences  of  community  work  may  have  been imposed or recorded in relation to the trespass, intentional damage

and male assaults female charges, they are quashed.

P Courtney J