Peita v New Zealand Police [2017] NZHC 1568

Peita v New Zealand Police [2017] NZHC 1568 [7 July 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2017-488-22 and 23[2017] NZHC 1568BETWEEN ALLAN SHANE PEITAAppellantAND NEW ZEALAND POLICERespondentHearing: 6 July 2017Appearances: DJ Watkins for AppellantMB Smith for RespondentJudgment: 7 July 2017RE-ISSUED JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 7 July 2017 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] Allan Shane Peita appeared before Judge CM Ryan on 7 June 2017 in the District Court at Kaikohe for sentence on two charges of intimidation and re- sentencing on two charges of theft and one charge of receiving stolen property for which he had previously been sentenced to eight months' home detention, community work and supervision.1 At the time of the earlier sentencing, on 2 December 2016, Judge DJ Sharp said that he would otherwise have sentenced Mr Peita to 12 months' imprisonment.2[2] Following his arrest on the later charges, Mr Peita spent 161 days in custody pending that sentencing on those charges and re-sentencing on the earlier charges, a period which would usually be treated as time served for the purposes of calculating a release date from a sentence of imprisonment.3[3] It is clear from Judge Ryan's sentencing notes that she intended that Mr Peita should serve a total effective sentence of 12 months' imprisonment for both the intimidation charges and the earlier charges on which she was re-sentencing him.4The Judge also made it clear that she expected that, having spent time in custody on remand, Mr Peita would be close to release from prison because of the time served.5[4] Mr Peita's appeal does not challenge Judge Sharp's initial assessment that 12 months' imprisonment would have been justified for the earlier offending. Nor does it dispute Judge Ryan's view that, bearing in mind the period of home detention served by Mr Peita subsequently, the proper sentence to be imposed on the re- sentencing should be one of 10 months' imprisonment.6[5] The appeal relates to the effect of five-month period Mr Peita spent in custody pending the re-sentencing. That period is not automatically taken into account when his release date is calculated under the Parole Act,7 with the result thatthe Department of Corrections has calculated Mr Peita's release date to be a date in December 2017.1 NZ Police v Peita [2017] NZDC 12337.2 NZ Police v Peita [2016] NZDC 24492 at [10] and [16].3 Parole Act 2002, s 90(1).4 NZ Police v Peita above, n 1 at [18].5 At [19].6 Sentencing Act 2002, s 80G(2).7 Hawkins v Chief Executive, Department of Corrections [2015] NZHC 1001 at [16] and [17].[6] Section 80ZB(b) of the Sentencing Act 2002, however, provides that some or all of the remand period may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account the amount of time the offender has spent in custody.[7] I am satisfied from reading Judge Ryan's sentencing notes that sheoverlooked the effect of this Court's judgment in Hawkins and the need to consider the provisions of s 80ZB. The Crown Solicitor fairly accepts that to be the case. Mr Smith's suggestion is that appropriate credit for time served pending the re- sentence should be allowed so that, as Judge Ryan anticipated, Mr Peita would be eligible for almost immediate release.[8] In accordance with the helpful suggestions of counsel, I make the following orders:(a) I allow the appeal in part and quash the sentences of imprisonment imposed by Judge Ryan on the charges for which Mr Peita was originally sentenced on 2 December 2016.(b) On the two theft charges, I sentence Mr Peita to concurrent terms of seven months' imprisonment. On the receiving charge, I sentence him to a concurrent term of one month's imprisonment.(c) The other sentences imposed on the theft and receiving charges, and the concurrent sentence of two months' imprisonment imposed by Judge Ryan on the intimidation charges, remain intact.[9] In fixing these new sentences, I record that all time spent in custody has been taken into account under s 80ZB of the Sentencing Act.[10] I am grateful to counsel for their assistance...................................... Toogood J