Peita v NZ Police [2017] NZHC 1568

Peita v NZ 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 2017JUDGMENT 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 theDistrict 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 forwhich he had previously been sentenced to eight months' home detention, communitywork 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 custodypending that sentencing on those charges and re-sentencing on the earlier charges, aperiod which would usually be treated as time served for the purposes of calculating arelease date from a sentence of imprisonment.3[3] It is clear from Judge Ryan's sentencing notes that she intended that Mr Peitashould serve a total effective sentence of 12 months' imprisonment for both theintimidation charges and the earlier charges on which she was re-sentencing him.4 TheJudge also made it clear that she expected that, having spent time in custody onremand, 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 that12 months' imprisonment would have been justified for the earlier offending. Nordoes it dispute Judge Ryan's view that, bearing in mind the period of home detentionserved 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 custodypending the re-sentencing. That period is not automatically taken into account whenhis release date is calculated under the Parole Act,7 with the result that the Departmentof 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 orall of the remand period may be regarded by the court as time served, as the courtthinks appropriate in the circumstances, after taking into account the amount of timethe offender has spent in custody.[7] I am satisfied from reading Judge Ryan's sentencing notes that she overlookedthe effect of this Court's judgment in Hawkins and the need to consider the provisionsof s 80ZB. The Crown Solicitor fairly accepts that to be the case. Mr Smith'ssuggestion is that appropriate credit for time served pending the re-sentence should beallowed so that, as Judge Ryan anticipated, Mr Peita would be eligible for almostimmediate release.[8] In accordance with the helpful suggestions of counsel, I make the followingorders:(a) I allow the appeal in part and quash the sentences of imprisonmentimposed by Judge Ryan on the charges for which Mr Peita wasoriginally sentenced on 2 December 2016.(b) On the two theft charges, I sentence Mr Peita to concurrent terms ofseven months' imprisonment, effective from 2 December 2016. On thereceiving charge, I sentence him to a concurrent term of one month'simprisonment, effective from the same date.(c) The other sentences imposed on the theft and receiving charges, and theconcurrent sentence of two months' imprisonment imposed by JudgeRyan on the intimidation charges, remain intact.[9] In fixing these new sentences, I record that all time spent in custody has beentaken into account under s 80ZB of the Sentencing Act.[10] I am grateful to counsel for their assistance......................................Toogood J