Te Wani v Police HC Christchurch CRI 2010-409-223

[2010] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000223

HEATHER TE WANI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 December 2010

Counsel:         A J McKenzie for Appellant

C J Boshier for Respondent

Judgment:      15 December 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This appeal has a tortured history.   It is necessary for me to traverse the background in order to put the issues in a meaningful context.

[2]      On 20 December 2009  Ms Te Wani committed offences of breach  of a protection order, common assault and assault on a police officer.  In essence she bit the arm of her estranged partner (thereby breaching the protection order), pushed her partner’s mother to the ground when she sought to intervene (common assault), and

then bit the hand of a police officer who was endeavouring to deal with her.

HEATHER TE WANI V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000223  15 December 2010

[3]      On 28 April 2010 Judge McElrea imposed five months home detention with reference to this offending.   He also directed that terms requiring the appellant to participate in a domestic violence course and an alcohol assessment and treatment were to extend for six months beyond the duration of the home detention term.

[4]      On  29  July  I  allowed  an  appeal  against  the  five  month  home  detention sentence.  It was reduced to three months’ home detention.  I shall not rehearse the reasons for the decision in any detail.  However, there were two associated problems. First of all there had been a challenge by way of an application for habeas corpus based on the proposition that the filing of an appeal should have brought an end to the home detention sentence, at least pending resolution of the appeal.   That application succeeded with the result that Ms Te Wani had served but one month of the sentence as at the date her appeal was considered by me.

[5]      Secondly, during the hiatus in the serving of her sentence, the address which had previously been available to her ceased to be, and she had no other suitable alternative address.  Hence, my decision substituted three months’ home detention, subject to the approval of a new address, which I had anticipated would be forthcoming.  Despite considerable efforts by the Probation Service, a new address was not found and approved.

[6]      In  the  result,  on  6  September  Judge  Crosbie  was  confronted  with  an application to cancel the sentence of home detention.   There was no basis for opposition to this.  Cancellation was granted and Ms Te Wani was released on bail pending her resentencing and made subject to a curfew from 7.00 pm to 7.00 am daily.

[7]      Over  two  months  later,  on  17  November,  Judge  Couch  resentenced  the appellant.  He felt constrained to accept the culpability assessment contained in the appeal judgment of this Court.  Hence, he began from the premise that three months’ home detention was the appropriate sentence (if available) of which one month had been served prior to the habeas corpus decision.   This left two months’ home detention as an appropriate sentence.    This was equated to four months’ imprisonment on the basis that a short term sentence of imprisonment is only served

as to half.  He then made a further reduction from the indicated four month sentence of imprisonment on account of the curfew observed for over two months and, hence, arrived at an end sentence of three months’ imprisonment.  The present appeal comes before me when Ms Te Wani has served four weeks of the new sentence.

[8]      Mr McKenzie advanced three points in support of the appeal.   The first concerned the validity of the cancellation decision, a matter into which I need not go for reasons which will become apparent.   The second was a complaint that it was inappropriate for the person who had applied to cancel the home detention sentence to also write the pre-sentence report made available to Judge Couch.  Again, I need not respond to this argument.

[9]      The third point was that in imposing three months’ imprisonment the Judge failed to give proper recognition to two available mitigating factors.  These were that Ms Te Wani, as a result of the history of events to which I have just referred, had been in something of an “on again off again” situation in relation to serving a sentence.  The further, perhaps stronger point, was that there were indications of a turnaround in relation to her behaviour over the intervening period since July, in that she had not been in bother and that she had taken positive steps to reintegrate with two children who are presently in care.  Mr McKenzie has explained that supervised contact has been occurring on about a two weekly basis.

[10]     Ms Boshier on the other hand submitted that the Judge, in a careful analysis, had  reached  the  end  sentence  of  three  months  in  a  manner  which  was  not impeachable on appeal.

[11]     In large measure I consider that this submission is right.  Judge Couch did consider all matters, weighed them and explained how he reached the conclusion which he did.  The issue of weight to be given to mitigating features can influence this Court to intervene but it is difficult to see that that is appropriate in this instance.

[12]     Nonetheless, in my opinion, there is one new matter which is available to me which was not, I think, available to the District Court Judge.   The present three month sentence would  ordinarily result in Ms  Te Wani serving one  and a half

months or six months before release.  Indeed, Mr McKenzie has indicated to me that her release date is 29 December.

[13]     Many prisoners who are about to be released at this time of the year enjoy the benefit of early release in anticipation of the Christmas holiday period.   However, that will not be so in this case because the sentence of only three months’ imprisonment does not incur the engagement of the early release policy.  It follows that Ms Te Wani will, given that she was sentenced on 17 November, remain in prison until almost the end of this month.

[14]     I am of the view that in the very unusual circumstances of this case this is simply undesirable.  She has, it is believed, an arrangement to have contact with her children next Saturday, the last available Saturday before Christmas.  I am persuaded that it is appropriate that she is in a position to exercise that right of contact.

[15]     For these reasons I am disposed to intervene on the basis that the new matter to which I have referred justifies this Court in allowing the appeal.  That is not any criticism  of  the  Judge’s  decision.    Indeed,  there  may  be  an  element  of  mercy involved in this decision, but given the difficulties that have existed in relation to this case, and the factor to which I have referred, I consider it appropriate to intervene.

[16]     Accordingly,  I  allow  the  appeal,  quash  the  sentence  of  three  months’

imprisonment and substitute two months’ imprisonment with the result that she will be eligible for release today.

Solicitors:

Andrew McKenzie Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent