HARDING-RERITI v NEW ZEALAND POLICE [2021] NZHC 1296

HARDING-RERITI v NEW ZEALAND POLICE [2021] NZHC 1296 [3 June 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000050[2021] NZHC 1296BETWEEN JAY HARDING-RERITIAppellantAND NEW ZEALAND POLICERespondentHearing: 3 June 2021Appearances: A Bailey for AppellantC E Martyn for RespondentJudgment: 3 June 2021ORAL JUDGMENT OF VENNING JSolicitors: Raymond Donnelly & Co, ChristchurchCounsel: A Bailey, Christchurch[1] On 12 November 2019 Judge A A Couch sentenced Mr Harding-Reriti to 12months' imprisonment on charges of possession of explosives and possession ofoffensive weapons.1 The Judge concluded his sentencing remarks as follows:[5] That leaves an end sentence of 12 months' imprisonment which iswhat I impose on each of these charges concurrently.[6] Leave to apply for substitution of sentence is denied.[7] There will be standard release conditions by operation of theSentencing Act 2002, but I impose no special conditions.[2] Mr Harding-Reriti has served his sentence of imprisonment. However in thecourse of disclosure recently provided to him in relation to fresh charges he has learntthat his criminal history records that he was sentenced to standard release conditions.He seeks to appeal his sentence to correct that record.[3] The first issue is that the appeal is out of time. Leave is required. However,as noted, the issue only recently came to Mr Harding-Reriti's attention. Leave isgranted.[4] Mr Harding-Reriti's counsel, Mr Bailey, has engaged in correspondence withthe Executive Judge at the Christchurch District Court regarding the record. It appearsclear enough from that exchange that the sentencing Judge did not impose standardconditions when sentencing Mr Harding-Reriti. That appears to have been on themistaken basis that standard conditions would be imposed under the Parole Act 2002.While that may have been the Judge's intention, it was in error. Section 93(1) of theSentencing Act 2002 applies:93 Imposition of conditions on release of offender sentenced toimprisonment for short term(1) A court that sentences an offender to a term of imprisonment of12 months or less may impose the standard conditions and any specialconditions on the offender and, if it does so, must specify when theconditions expire.1 New Zealand Police v Harding-Reriti [2019] NZDC 22788.[5] While the Judge could have imposed standard release conditions, he did not doso. Standard release conditions did not apply by operation of the Sentencing Act 2002as the sentence of imprisonment was for 12 months.[6] In R v Dodd this Court accepted that in R v Scott the Court of Appeal appearedto accept there was jurisdiction to vary a sentence provided the sentence was set asideand reimposed in open Court.2 It would have been open for the Judge to have re-sentenced Mr Harding-Reriti before his sentence was completed, but the point is mootin the present circumstances given that he has completed his sentence without beingre-sentenced.[7] The Crown reasonably accepts it is a matter for this Court whether the Courtconsiders removal of the conditions is appropriate.[8] The position is that the Judge did not impose standard conditions whenimposing the sentence. Standard conditions could not be imposed by statute. Thesentence has not been reviewed or reimposed. Mr Harding-Reriti's record shouldreflect that position, that the correct position is that he was not sentenced to standardrelease conditions.[9] The issue is how best to achieve that clarification. On one view nothing shouldbe required as the Judge did not impose standard conditions of release and they couldnot be imposed by operation of law. However, the record as it stands is incorrect.[10] The most effective way to achieve the desired result seems to be to formallyallow the appeal and reimpose the sentence, expressly without the standard conditionsof release.[11] For those reasons the appeal is therefore allowed.[12] The sentence imposed by the District Court is set aside. I confirm andreimpose Mr Harding-Reriti's sentence of 12 months' imprisonment on each of the2 R v Dodd [2019] NZHC 667 at [19], citing R v Scott CA381/02, 14 May 2003.charges of possession of an offensive weapon and unlawful possession of a firearmconcurrently. No standard or special conditions of release are however imposed.__________________________Venning J