MERITO v POLICE [2020] NZHC 2871

MERITO v POLICE [2020] NZHC 2871 [2 November 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000083[2020] NZHC 2871BETWEEN JAYSON RUWHENUA MERITOAppellantAND NEW ZEALAND POLICERespondentHearing: 2 November 2020Counsel: CD Bean for AppellantASC Alcock for RespondentJudgment: 2 November 2020ORAL JUDGMENT OF DOWNS JSolicitors:Crown Solicitor, Hamilton.Bean Law, Hamilton.[1] Jayson Merito appeals his 17-month prison sentence. Mr Merito was chargedwith eight charges of indecent assault, one charge of committing an indecent act, andthree charges of contravening a protection order. All charges relate to his step-daughter; Mr Merito was in a relationship with the victim's mother.[2] The sexual offending occurred repeatedly when the victim was 14 and 15. Thecharges were laid 9 January 2020. Mr Merito pleaded guilty 24 June 2020. He soughtand was given a sentence indication in between.[3] Judge D M Wilson QC adopted a starting point of 27 months' imprisonment.The Judge reduced the starting point by five months for personal mitigating factorsidentified in a cultural report under s 27 of the Sentencing Act 2002. The Judge furtherdiscounted the sentence by five months in recognition of Mr Merito's guilty pleas.[4] On behalf of Mr Merito, Mr Bean contends the sentence is manifestlyexcessive. Mr Bean acknowledges that at first instance, he sought a sentence ofapproximately 16 months' imprisonment, meaning Mr Merito received only onemonth longer than the term he exhorted to the Judge. Mr Bean contends the sentenceis manifestly excessive, however, as Mr Merito is a second-strike offender—thismeans he must serve the full term.[5] Mr Bean sought a 25 percent reduction for Mr Merito's guilty pleas fromJudge Wilson. The five-month deduction represents 19 percent of the starting point.Mr Bean say it is not clear the Judge applied the deduction in accordance withMoses v R.1 In Moses, the Court of Appeal held the deduction for a guilty plea shouldoperate as any other deduction from the starting point; not as a deduction from thebalance once those other deductions have occurred.[6] I am not persuaded of error. Nor am I persuaded a different sentence shouldbe imposed. I can be (very) brief.[7] First, the 19 percent deduction for the guilty pleas was reasonable. Mr Meritodid not plead guilty at the first reasonable opportunity. So, full discount (of 25 percent)1 Moses v R [2020] NZCA 296.was not warranted. Second, even if the Judge did misapply Moses when discountingthe sentence for the pleas of guilty, to interfere with the sentence by only one monthwould be to "tinker". Courts have long expressed the proposition sentencing is not ascience; a sentencing Judge enjoys a margin of appreciation. A sentence of 17 months'imprisonment could not be regarded as manifestly excessive when it is commonground a sentence of 16 months' imprisonment is within range.[8] The appeal is dismissed...Downs J