NAMANA v NEW ZEALAND POLICE [2017] NZHC 66

NAMANA v NEW ZEALAND POLICE [2017] NZHC 66 [2 February 2016]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCRI 2016-441-45[2017] NZHC 66BETWEEN FREEDOM TEWHAKATUWATEATANGA FRANCESNAMANAAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2016Appearances: W R Hawkins and A V Bryant for AppellantMJM Mitchell for RespondentJudgment: 2 February 2016ORAL JUDGMENT OF PETERS JSolicitors: Public Defence Service, Hawkes BayElvidge & Partners, Crown Solicitor, Napier[1] The appellant, Mr Namana, appeals against sentence imposed by Judge A J Adeane in the District Court at Hastings on 23 November 2016.1[2] I must allow Mr Namana's appeal if satisfied that:2(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[3] Mr Namana was for sentence on the following offences committed between February and October 2016, to which he pleaded guilty:(a) shoplifting;(b) burglary;(c) male assaults female;(d) breach of community work;(e) wilful damage;(f) assault with a weapon; and(g) failure to answer District Court bail.[4] The Judge sentenced Mr Namana to 14 months' imprisonment. The onlyissue which arises on appeal is whether the Judge erred, in that he failed to consider whether he ought to impose a sentence of home detention. On the face of the material then before the Judge, namely a pre-sentence report dated 13 September 2016, a suitable address for a sentence of home detention was available.1 Police v Namana2 Criminal Procedure Act 2011, s 250(2).[5] Section 8(g) Sentencing Act 2002 ("Act") requires a Court to impose the leastrestrictive outcome appropriate in the circumstances. Other provisions of the Act pertain to this statutory requirement, particularly ss 15A and 16 of the Act.[6] The Judge did not expressly refer to the possibility of a sentence of home detention and, in the circumstances, I am not able to infer that the Judge turned his mind to the matter. Mr Namana's youthful age, to which the Judge himself referred,would be a factor requiring consideration in the exercise of the discretion. Moreover, although Mr Namana has a lengthy criminal history for someone so young, he has never been sentenced to anything more restrictive than community work.[7] Given the lack of express reference and the matters to which I have referred, as I say it is not possible for me to infer that the Judge turned his mind to the imposition of a sentence of home detention as the Act required him to do. Accordingly, the necessary error is made out.[8] The issue then becomes what consequence should follow from that. Given the preliminary view I reached when this matter was first called this morning, I asked counsel to make enquiries as to whether the address before the Judge as of November 2016 remained available and suitable.[9] Since then the Department of Corrections and in particular Ms Gray, a probation officer, has visited the address at very short notice and I am grateful to her for doing so. Her view is that the address is not suitable and she refers to (rather unspecified) concerns said to have emanated from the police and CYFS in regard to the occupants of the address and the suitability of Mr Namana. Ms Gray concludes by saying a recommendation of imprisonment is the only option that Probation would support. This is in contrast to the tenor of the pre-sentence report of 13 September 2016 with no explanation given as to why the recommendation has changed.33 The Judge had the 13 September 2016 report before him at sentencing.[10] Given the views I expressed this morning, and the more recent report, counsel for Mr Namana and Crown counsel have suggested that I simply grant leave to Mr Namana to apply to the District Court to be released on a sentence of home detention if and when a suitable address becomes available. It is to be hoped thatone will become available at short notice given Mr Namana's youthful age and thefact that he was sentenced some two and a half months ago.[11] Accordingly, the appeal is allowed. I am satisfied that there was an error and I grant leave to Mr Namana pursuant to s 80I of the Act to apply to the District Court at Hastings for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if he finds a suitable residence...................................................................Peters J