Te Wani v Police HC Christchurch CRI 2010-409-74

[2010] NZHC 1339

e

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000074

HEATHER ADELE BARBARA TE WANI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 July 2010

Counsel:         A J McKenzie for Appellant

K B Bell for Respondent

Judgment:      29 July 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of five months’ home detention imposed in relation to three offences; being contravention of a protection order, Crimes Act assault and assaulting a police officer contrary to the Summary Offences Act 1981. The relevant protection order was made in mid-2006.  The protected person is a man with whom the appellant has had a longstanding connection, or relationship.

[2]      On 20 December last the two were drinking together.  Ms Te Wani had been invited  to  his  address.    It  is  apparent  that  both  people  became  intoxicated,  an

argument ensued and the protected person made to leave.  He was bitten on the arm.

HEATHER ADELE BARBARA TE WANI V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000074  29

July 2010

This gave rise to the charge of contravening the protection order, an offence which carries a maximum of two years’ imprisonment.

[3]      At this point the complainant’s mother became involved, when a demand for her cellphone was made by the appellant.  The cellphone was not given to her, and the complainant’s mother was twice thrown to the ground with some force, albeit she sustained no injuries.

[4]      The third charge of assaulting the police constable occurred a little later in the police cell block.  The appellant bit a constable’s wrist with the result that skin was broken and some medical attention was required.   The maximum penalty for that offence is six months’ imprisonment, while Crimes Act assault carries a maximum of 12 months’ imprisonment.

[5]      The appellant entered a guilty plea at a status hearing and was entitled to a

20% discount on that score.   The sentence was imposed by Judge McElrea on

28 April.

[6]      The appellant, I note, is aged 25.  She has a number of previous convictions, initially for offences of dishonesty, but more recently for violent offending.  She has been sentenced to imprisonment on a number of occasions.  Mr McKenzie made the point that there is something of a gap in her offending in that her last convictions were for offences committed in November 2008, but I do not regard that as greatly significant.

[7]      The Judge arrived at a sentence of five months’ home detention in a manner to which I will refer shortly.  He then imposed two conditions as recommended in the pre-sentence report.  These were that the appellant complete a domestic violence programme and also participate in an assessment for alcohol treatment and undertake such treatment to the satisfaction of her probation officer and programme provider. Standard post-detention conditions were imposed, together with a special post- detention condition, and these were to extend until six months after the detention end date  (save,  of  course,  that  her  confinement  to  the  approved  address  was  not extended).

[8]      In support of the appeal Mr McKenzie submitted that the Judge failed to follow the approved methodology laid down in R v Taueki.[1]   He characterised it as a sentencing exercise carried out in an unstructured manner and that no starting-point was identified.  In the result he argued the period of home detention was too long. Mr McKenzie argued that in order to arrive at a five month sentence the Judge must have had in mind a sentence of about 12 months’ imprisonment.  Allowing the 20%

discount would reduce the term of imprisonment to 10 months, then applying what was  termed  “the  rule  of  thumb”  that  home  detention  was  typically half  of  the indicated prison sentence, would result in an end sentence of five months’ home detention.  But, Mr McKenzie disputed that this offending could ever have warranted a 12 month starting-point and hence the substance of his argument was that had the Judge approached matters in the approved manner he would have arrived at a sentence less than five months’ home detention.

[1] R v Taueki [2005] 3 NZLR 372.

[9]      Ms    Bell  refuted  this  argument.    She  doubted  that  a  starting-point  of

12 months would have been inappropriate in any event.   Moreover, she submitted that there is no fixed rule of thumb that a sentence of home detention should be half of the indicated prison sentence.

[10]     To my mind there is an added complication which has now arisen in relation to the case.  That is that Ms Te Wani began serving the sentence of home detention and completed the first month.   On advice, she then brought a habeas corpus application which involved the contention that when an appeal is lodged in relation to home detention the sentence is suspended pending resolution of the appeal.  In the event the point was not argued before French J.  Rather, the respondent to the habeas corpus  application  relented  and  in  the  result  Ms  Te  Wani  was  not  required  to continue serving the sentence pending the hearing of this appeal.

[11]     A further complication is that the approved address which was utilised by Judge McElrea is no longer available.   Ms Te Wani is living elsewhere, but at an address where Mr McKenzie is confident approval will be forthcoming as to its suitability.   However, this contemplates that if the sentence of home detention is upheld there will have to be a further approval exercise before Ms Te Wani can

recommence serving her sentence.  All in all, there are a number of unsatisfactory features.

[12]     I have  reached  the  conclusion  that  I must uphold  the  sentence  of home detention.  It does seem to me that a short sentence of imprisonment was required in this case and it is implicit in Judge McElrea’s approach that he shared that view. However, for a combination of pragmatic and more principled reasons, I consider that five months was an excessive term.  I doubt that a starting-point of 12 months’ imprisonment can be justified for the subject offending.   Equally importantly, it seems to me that what has occurred since the sentence was imposed, and an appeal was filed, is undesirable; in the sense that the sentence has been served in part but four months are left to run, so that something of an “in again, out again” situation has emerged.   Partly for that reason as well I allow the appeal and substitute a sentence of three months’ home detention, subject to approval of the new address.

[13]     I  direct  the  preparation  of  a  fresh  appendix  as  to  the  suitability  of  the proposed address.   As soon as that appendix is available the case will need to be referred back to me and hopefully I should be able to finalise the matter on the papers.

[14]     For the avoidance of doubt the conditions imposed by Judge McElrea will continue to apply.

Solicitors:

Andrew McKenzie Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent