TANOA v NEW ZEALAND POLICE [2017] NZHC 2836

TANOA v NEW ZEALAND POLICE [2017] NZHC 2836 [17 November 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-31[2017] NZHC 2836BETWEEN ERITANA ELIZABETH TANOAAppellantAND NEW ZEALAND POLICERespondentHearing: 7 November 2017Appearances: W Hawkins for the AppellantC R Stuart for the RespondentJudgment: 17 November 2017REASONS JUDGMENT OF CULL J[1] On 29 August 2017, Eritana Elizabeth Tanoa was sentenced by Judge AJAdeane in the Napier District Court to nine months' imprisonment following guiltypleas for multiple theft and other charges. Ms Tanoa appeals her sentence on the basisthat the Judge erred in not considering whether to substitute the sentence with homedetention and it was therefore manifestly excessive.[2] Having read Counsel's submissions and heard from Counsel at the hearing, Iallowed the appeal, with the reasons for my decision being delivered later. Thisjudgment contains the reasons for my decision and the result of my decision, whichwas delivered on 7 November 2017.Factual background[3] Ms Tanoa pleaded guilty to a variety of offending spanning some nine months,as follows:(a) two charges of failing to report for community work on 12 and 23September 2016;1(b) one charge of failing to attend bail on 14 December 2016;2(c) one charge of theft over $1,000 for taking a lawnmower and otherproducts from Warehouse Hastings on 22 January 2017;3(d) eight charges of theft under $500 comprising:4(i) $89.90 of goods from Warehouse Napier on 22 November 2016;(ii) $172.70 of food and other goods from Four Square Taradale on17 December 2016;(iii) $164.91 of health and beauty products from Four SquareTaradale on 29 December 2016;(iv) $136.25 of health products and household goods from FourSquare Taradale on 2 January 2017;(v) $27.08 of food and health products from Four Square Taradaleon 3 January 2017;(vi) $96.92 of beauty products from Pak n Save Hastings on 3 March2017;1 Sentencing Act 2002, s 71(1)(f); maximum sentence three months' imprisonment or $1000 fine.2 Bail Act 2000, s 38(a); maximum sentence one year imprisonment or $2,000 fine.3 Crimes Act 1961, ss 219 and 223(b); maximum sentence seven years' imprisonment.4 Crimes Act 1961, ss 219 and 223(d); each carrying maximum sentence three months'imprisonment.(vii) $142.98 of grocery items from Pak n Save Tamatea on 23 May2017; and(viii) $199.99 of bed linen from Briscoes, Hastings on 24 May 2017;(e) two charges of trespass, one at New World in Napier on 6 September2016, and the other at Pak n Save Hastings on 3 March 2017;5 and(f) one charge of driving while disqualified at Napier on 25 April 2017.6PAC report[4] The PAC report notes Ms Tanoa has a history of offending, and wasunemployed during the periods in which she offended. She cited lack of income asher motivation for theft, as well as boredom. The writer reported she understood heractions were wrong, continued despite knowledge of the consequences, and had a lackof insight into her offending. In the writer's opinion, Ms Tanoa exhibited poorproblem solving skills, lack of impulse control, and a sense of entitlement.[5] The writer noted three previous breaches of community work, in addition tothe two related to the present appeal, and three previous failures to answer bail. MsTanoa's explanation was trips to hospital with her sick son. Some of her currentoffending was committed while on bail for other offending, but she has since compliedwell with EM Bail for the present offending, with only one breach.[6] Ms Tanoa's risk of reoffending was assessed as high, but her risk of harm aslow.[7] The report recommended home detention along with rehabilitation conditions,but noted imprisonment was also an option for a harsher penalty. It assessed herproposed home detention address (her Housing New Zealand home) as suitable,5 Trespass Act 1980, ss 4(4) and 11(20(a); maximum sentence three months' imprisonment.6 Land Transport Act 1998, ss 32(1)(c) and 32(3); maximum sentence three months' imprisonmentor $4,500 fine.despite Police expressing concern about previous domestic violence call-outs inrelation to her ex-partner.[8] The report noted Ms Tanoa cares for her 12 year old son. Her four year oldson lives with the children's father, with whom she maintains a good co-parentingrelationship. It is not clear if the father is the same person as the ex-partner with whomdomestic violence incidents have previously occurred.District Court decision[9] The Judge's sentencing notes briefly identified the offending and concludedMs Tanoa showed little sense of responsibility towards her community or the child inher care. He discussed the negative aspects of the PAC report, focusing on her "clearsense of entitlement". He considered, in that context, that nothing short of a custodialsentence would suffice. I set out his sentencing considerations in full:[7] This matter cannot be met short of a full-time custodial sentence. MsTanoa has reached an age where she needs to understand that accumulatingoffending will have accumulating and eventually serious consequences.[8] For the theft over $1000 she is now sentenced to nine months'imprisonment.[9] For the other shoplifting matter she is sentenced to one month'simprisonment concurrently on each, for driving while suspended one month'simprisonment, for breaching community work one month's imprisonment.[10] I note that the document charges have been withdrawn.[11] The end sentence is one of nine months' imprisonment. This allowsfor the guilty pleas which have been entered. I refrain from any uplift for themultiple nature of the offending or, indeed, for the defendant's significantprevious similar history.[12] Reparation per schedule.Submissions[10] Mr Hawkins, for Ms Tanoa, submits the Judge failed to properly consider homedetention as an option. He submits that while the Judge considered the circumstancesrequired a sentence of imprisonment, his Honour ought to have expressly consideredwhether home detention would satisfy the principles and purposes of sentencing. Hepoints to Fomai v Police in support of this contention.7[11] The Crown submissions were prepared without the benefit of appellantsubmissions. Nevertheless, the Crown submits the Judge properly rejected homedetention in the circumstances. Whether to impose home detention is an exercise offettered discretion,8 guided only by the need to properly consider the purposes andprinciples of sentencing. The Crown submits that in circumstances where theoffending was grave and the offender had several previous convictions for theft, apattern of non-compliance, lack of remorse and insight, home detention was not asuitable option.Law[12] Section 250 of the Criminal Procedure Act 2011 states:The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.[13] In sentence appeals, the appellate court must first find an intrinsic error or oneresulting from additional material before assessing whether a different sentence shouldbe imposed.9 The error must be material, and must point to grounds for imposing adifferent sentence. Those grounds include that the sentence was inappropriate in theparticular circumstances.[14] Section 15A of the Sentencing Act 2002 provides:15A Sentence of home detention(1) If a court is lawfully entitled under this or any other enactment toimpose a sentence of home detention, it may impose a sentence ofhome detention only if—(a) the court is satisfied that the purpose or purposes for whichsentence is being imposed cannot be achieved by any less7 Fomai v Police [2014] NZHC 377 at [18].8 Manikpersadh v R [2011] NZCA 452.9 Tutakangahau v R [2014] NZCA 279 at [30] citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].restrictive sentence or combination of sentences; and(b) the court would otherwise sentence the offender to a short-termsentence of imprisonment.(2) This section is subject to any provision in this or any other enactmentthat—(a) provides a presumption in favour of or against imposing asentence of home detention in relation to a particular offence;or(b) requires a court to impose a sentence of imprisonment inrelation to a particular offence.[15] The decision to grant or decline home detention is the exercise of a fettereddiscretion. As such, the Judge must have made an error of principle, an error of lawor been plainly wrong before appellate intervention is justified.10[16] Errors of law in terms of determining if home detention should be imposedinclude:(a) Failure to consider whether home detention should be imposed if it istechnically available within the terms of s 15A, even if no submissionis made in favour of home detention. Such a failure allows an appellatecourt to consider the matter afresh.11(b) An assessment that focuses only on one principle or purpose ofsentencing (such as deterrence) to the exclusion of others.12AnalysisRelevant error[17] The appellate cases to which Mr Hawkins refers provide support for hiscontention that home detention was not considered and that this oversight was in error.Those cases concern appeals from the District Court where the option of home10 Manikpersadh, above n 8, at [12]; James v R [2010] NZCA 206 at [17]; and R v D [2008] NZCA254 at [66].11 Fomai v Police, above n 7; Howard v Police [2015] NZHC 150; and Fonoti v Police [2015] NZHC200.12 Fairbrother v R [2013] NZCA 340 at [30]; and Manikpersadh, above n 8, at [18]–[19].detention has been overlooked. For instance, Peters J in the High Court noted asfollows:13[6] The Judge did not expressly refer to the possibility of a sentence ofhome detention and, in the circumstances, I am not able to infer that the Judgeturned his mind to the matter. Mr Namana's youthful age, to which the Judgehimself referred, would be a factor requiring consideration in the exercise ofdiscretion. Moreover, although Mr Namana has a lengthy criminal history forsomeone so young, he has never been sentenced to anything more restrictivethan community work.[18] Woolford J, also in the High Court, stated:14[18] On this point, as on other relevant points, I acknowledge that a Judgesentencing in the District Court, and possibly in a busy list Court, cannot beexpected to articulate every point that may be relevant. However, giving thatconsideration proper weight, I do not consider it is possible to infer that theJudge gave consideration to home detention. A sentencing Judge is bound toconsider home detention, if it is technically available in terms of s 15A of theSentencing Act, notwithstanding that there is no submission for a defendantthat home detention should be imposed. For this reason the question of homedetention needs to be assessed by this Court. It is not an assessment on appealof the exercise of a discretion by the sentencing Judge, but an original exerciseof discretion by this Court.[19] The same reasoning applies in the current case. Although the Crown is correctto point out the question of whether to impose home detention is discretionary, thequestion itself is required to be asked as a matter of law, with reference to the relevantpurposes and principles of sentencing.[20] Although the Judge concluded that the offending "cannot be met short of a full-time custodial sentence", it cannot be inferred that the Judge gave consideration tohome detention as a real alternative to imprisonment, satisfying the goals of deterrenceand denunciation, which often taken prominence in theft offending. In the context ofa lawyer's theft of client funds, the Court of Appeal said:15[41] The sentence of home detention indeed provides a real alternativeto imprisonment. It carries with it in considerable measure, the principles ofdeterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty throughhome detention can more appropriately be imposed by a sentence of homedetention than by imprisonment. In cases of more serious offending which13 Namana v Police [2017] NZHC 66.14 Fomai, above n 7.15 R v Iosefa [2008] NZCA 453.justify a sentence greater than two years, the sentence of home detention willnot be available and in such cases in accordance with the hierarchy ofsentencing in s 10(A) a sentence of imprisonment usually will be required toreflect the purposes of denunciation and deterrence.[21] I accept Mr Hawkins submission, that the Judge's comments at [7] indicate apresumption of an end sentence of imprisonment, without the benefit of properconsideration of home detention. Moreover, it appears that the Judge has madeadverse inferences about Ms Tanoa's ability to care for her son, in the absence of anyevidence. To the contrary, the PAC report writer indicated that none of the relevantauthorities had revealed any concerns about the care she provided.Should home detention be imposed?[22] The concerns raised by the Crown do not displace the fact that deterrence anddenunciation, accountability and rehabilitation may all be met by a sentence of homedetention. The PAC report writer was appraised of all those concerns, which wereinsufficient to persuade the writer that home detention was not appropriate. Althoughthere are concerns about the level of insight Ms Tanoa has expressed regarding heroffending, such concerns may well be met by ordering, as the report writerrecommended, appropriate counselling, treatment and budgeting programmes.[23] Weighing in the mix is the care of Ms Tanoa's 12 year old son. It is not clearwho is caring for her son at this time, but that Ms Tanoa was his caregiver ought toweigh in the balance. If it were finely balanced, following s 16(1) which requires theCourt to "have regard to the desirability of keeping offenders in the community as faras that is practicable and consonant with the safety of the community", this tips thescales in favour of home detention, to allow her to provide for his ongoing care andminimizing the impact of her sentence on his life.Fresh charge[24] During the hearing, Mr Hawkins advised that Ms Tanoa has been arrested andcharged with shoplifting last weekend and is currently in custody, awaiting herappearance in the District Court. Mr Hawkins referred to s 251(2) and (3) of theCriminal Procedure Act 2011 and submits that the disposition of this appeal should beremitted back to the District Court for issues of bail and sentence on the new charge,as well as the charges on appeal together. Mr Stuart concurs with Mr Hawkins'submission.[25] I have given consideration to the High Court jurisdiction on this appeal againstsentence. The fresh charge is not before the High Court and at this stage, noappearance has been made and no plea has been entered. It is uncertain what theoutcome may be to that charge. The sentence appeal currently before the High Courtshould be disposed of on the charges and information currently before the Court. Inthe circumstances, I do not consider it appropriate therefore, to remit this matter backto the District Court for resentencing.Conclusion[26] The appeal is allowed. The Judge made two errors. First, his Honour failed toproperly consider whether home detention was appropriate in light of the qualifyingsentence imposed. Secondly, his Honour erred in focusing on one purpose ofsentencing at the expense of others, such as rehabilitation, and other relevant concernssuch as those indicated by s 16.Result[27] I therefore make the following orders:(a) The appeal is allowed.(b) The sentence of nine months' imprisonment is quashed.(c) A sentence of three months' home detention, to be served at the addressset out in the home detention report, is imposed in substitution for theformer sentence, being a starting sentence of four months reduced tothree months, taking into account that Ms Tanoa has been in custodyfor two months.(d) There will be special post-detention conditions imposed on Ms Tanoa'srelease, as provided under s 80P(2)(c) and (d) of the Sentence Act 2002,because I am satisfied there is a significant risk of reoffending andstandard conditions alone will not adequately reduce that risk. Thehome detention special conditions recommended by the Department ofCorrections in the PAC report will reduce the risk of reoffending byproviding rehabilitation/reintegration. Those conditions shall applyfrom Ms Tanoa's release from the home detention sentence I have nowimposed. They will expire six months from the end of the sentence ofhome detention and are:(i) To attend an assessment for a departmental programme asdirected by a Probation Officer. To attend and complete anycounselling, treatment or programme as recommended by theassessment as directed by and to the satisfaction of a ProbationOfficer.(ii) To attend and complete an appropriate budgeting programme tothe satisfaction of a Probation Officer. The specific details ofthe appropriate programme shall be determined by a ProbationOfficer.(iii) Not to possess, consume or use any alcohol or drugs notprescribed to Ms Tanoa.Cull JSolicitors:Public Defence ServiceElvidges