TASI v NEW ZEALAND POLICE [2019] NZHC 2186

TASI v NEW ZEALAND POLICE [2019] NZHC 2186 [3 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-385[2019] NZHC 2186BETWEEN CHRISTOPHER TASIAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersAppearances: D Ratima for AppellantC Howard for RespondentJudgment: 3 September 2019JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 3 September 2019 at 3 pm.Registrar/Deputy RegistrarDate[1] Mr Tasi pleaded guilty in the District Court to seven charges. These comprisedcharges of dangerous driving causing injury, driving under the influence of a drug,unlicensed driving, unlawfully taking a motor vehicle, and being in possession of amethamphetamine pipe, methamphetamine and an offensive weapon. The offendingoccurred in three tranches between June and November 2018.[2] Mr Tasi entered his guilty pleas following a sentence indication given by JudgeWinter on 29 January 2019.1 He was subsequently sentenced by Judge D Clark on22 February 2019 because Judge Winter was unavailable on that date. Judge Clarkadopted Judge Winter's sentence indication and sentenced Mr Tasi to 20 monthsimprisonment. She also granted Mr Tasi leave to apply for the sentence to beconverted to one of home detention.2[3] On 16 July 2019 Judge Lovell-Smith converted the sentence of imprisonmentto a sentence of ten months home detention commencing on that date.3 He was toserve that sentence at Odyssey House, where he would undergo rehabilitation forsubstance addiction.[4] Mr Tasi appeals against sentence on the basis that the Judge erred in principlein fixing the length of the sentence of home detention and this has led to an endsentence that is manifestly excessive.The appeal[5] Mr Tasi remained in custody between 27 November 2018 and his release tocommence serving the sentence of home detention on 16 July 2019. As a result, hewas in custody for approximately seven and a half months before being required tocommence the sentence of home detention. On Mr Tasi's behalf Ms Ratima submitsthe Judge erred in not taking this fact into account when fixing the sentence of homedetention.1 Police v Tasi DC Manukau CRI-2018-092-6835, 29 January 2019.2 Sentencing Act 2002, s 80I.3 New Zealand Police v Tasi [2019] NZDC 13925.[6] The Crown concedes this ground of appeal. It agrees the Judge ought to havetaken into account the time Mr Tasi spent in custody in fixing the length of the sentenceof home detention. This flows from s 80K(6) of the Sentencing Act 2002 (the Act),which requires the Court to take into account the portion of the original sentence thatis yet to be served at the time the sentence is converted to one of home detention.Decision[7] Mr Tasi had effectively served approximately 15 months of his originalsentence when he was re-sentenced on 16 July 2019. This reflects the fact that he waseligible for automatic release after serving one-half of his sentence.4 At the date of hisre-sentencing he was therefore required to serve five further months of his originalsentence. As a result, he would have been eligible for release from prison in September2019. That fact ought to have been taken into account when he was re-sentenced.[8] A sentence of five months imprisonment is broadly equivalent to a sentence oftwo months and two weeks home detention because, unlike a short sentence ofimprisonment, a sentence of home detention must be served in full.[9] The appeal is accordingly allowed, and the sentence of ten months homedetention is quashed. In its place Mr Tasi is required to serve a sentence of two monthsand two weeks home detention commencing on 16 July 2019.[10] Where the Court imposes a sentence of less than six months home detention itmay impose the standard post-detention conditions set out in s 80O of the Act and anyspecial post-detention conditions that may be necessary under s 80P of the Act.5 If theCourt imposes such conditions it must also specify when the conditions are to expire.6This must be between six and twelve months after the sentence of home detention hasbeen served.74 Parole Act 2002, s 86.5 Sentencing Act 2002, s 80N(1).6 Sentencing Act 2002, s 80N(1).7 Sentencing Act 2002, s 80N(3) and (4).[11] Counsel agree that the Court should make standard post-detention conditionsand also special post-detention conditions. The latter are designed to assist inMr Tasi's rehabilitation and to reflect the fact that he presents a significant risk of re-offending in the future if appropriate special conditions are not imposed.[12] I therefore make an order that Mr Tasi is to be subject to the standard post-detention conditions and the following special conditions:(a) He is to comply with the rules and requirements of Odyssey House tothe satisfaction of Odyssey House and his probation officer until thecompletion of his programme.(b) He is not to consume or use alcohol, any psychoactive substance, orany controlled drug.[13] Both sets of conditions are to expire six months after the completion of thesentence of home detention.Lang JSolicitors/Counsel:Kayes Fletcher Walker, ManukauD Ratima, Barrister, Onehunga