TANOA v NEW ZEALAND POLICE [2017] NZHC 2722

TANOA v NEW ZEALAND POLICE [2017] NZHC 2722 [7 November 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-31[2017] NZHC 2722BETWEEN ERITANA ELIZABETH TANOAAppellantAND NEW ZEALAND POLICERespondentHearing: 7 November 2017Appearances: W Hawkins for the AppellantC R Stuart for the RespondentJudgment: 7 November 2017RESULTS 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 that sentence on the basisthat the Judge erred in not considering whether to substitute the sentence with homedetention and was therefore manifestly excessive.[2] Having read Counsels' submissions and heard from Counsel at the hearingtoday, I am allowing the appeal. The reasons for my decision will be delivered later.[3] During the hearing, Mr Hawkins for Ms Tanoa advised that Ms Tanoa has beenarrested and charged with shoplifting last weekend and is currently in custody,awaiting her appearance in the District Court. Mr Hawkins referred to s 251(2) and(3) of the Criminal Procedure Act 2011 and submits that the disposition of this appealshould be remitted back to the District Court for issues of bail and sentence on the newcharge, as well as the charges on appeal together. Mr Stuart concurs with Mr Hawkins'submission.[4] 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.[5] 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 addressof 4 Lodge Road, Maraenui, Napier, 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 and 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