Whakarau v Police HC Palmerston North CRI-2011-454-35

[2011] NZHC 1887

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-454-35

FRANCINE WHAKARAU

v

NEW ZEALAND POLICE

Hearing:         26 October 2011

Counsel:         M R Lander for Appellant

M G Sinclair for Crown

Judgment:      26 October 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:30pm on the 26th October 2011.

FRANCINE WHAKARAU V NEW ZEALAND POLICE HC PMN CRI-2011-454-35 26 October 2011

[1]      Ms Whakarau  was  sentenced  to  six  months’ imprisonment  for breach  of community work, and two months for breach of intensive supervision.   Sentences were cumulative.  It is agreed that the sentence imposed on the breach of community work matter was twice the statutory maximum of three months and should be quashed.

[2]      There is no argument that imprisonment is inappropriate, so the question that falls to me is an appropriate sentence for breach of community work.   Given the maximum  of  three  months,  it  is  my  view  that  two  months’  imprisonment (cumulative) is appropriate on these facts.

[3]      Ms Whakarau does have a history of breaching community sentences as fully set out in the Pre-sentence Report but she does have at least some reasons to offer for non-compliance in this case.

[4]      In  respect  of the breach  of intensive  supervision  count,  she had  met  all requirements up until early December 2010, but on 20 January 2011 she had a gynaecological biopsy for which recovery time was between two and two and a half months.  She was excused from reporting until 4 February 2011 but did not come back after that.

[5]      The results of the biopsy were that Ms Whakarau had a stage 1B carcinoma of the cervix.

[6]      As counsel indicated in her submissions, that lapse is at least understandable even if it is not a complete answer.

[7]      As to breach of community work, Ms Whakarau says that she was being harassed by Nomad gang members.  This does not seem to be a retrospective made up excuse. There are reports to this effect from an early stage. Added to this was her ongoing medical difficulty.

[8]      Taken  all  in  all,  I  consider  two  months’  imprisonment  an  appropriate response.

[9]      The  sentence  of  six  months  for  breach  of  community work  is  set  aside

accordingly, and replaced by a sentence of two months’ imprisonment.

[10]     There is no challenge to the remission of fines.

[11]     I am given to understand that Ms Whakarau has been in prison for two months already and so is entitled to release forthwith.

Williams J