USOALLI v R [2021] NZHC 2401

USOALLI v R [2021] NZHC 2401 [14 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000356[2021] NZHC 2401BETWEEN SILA JUNIOR USOALLIAppellantAND THE QUEENRespondentHearing: 7 September 2021Counsel(via VMR):B So for AppellantAR Masters for RespondentJudgment: 14 September 2021JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 14 September 2021 at 10.30 am.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Auckland.Public Defence Service, Auckland.[1] Judge A S Greig sentenced Sila Usoalli to a term of three months' communitydetention and 18 months' intensive supervision.1 Mr Usoalli appeals. He contendsthe sentence is manifestly excessive. An appeal in this context must be allowed if theappeal Court is satisfied there is an error in the sentence and a different one should beimposed.2 Or, in short, if the sentence is manifestly excessive.3[2] On 25 September 2020, Mr Usoalli and another went into the front yard of aMission Bay home and removed a set of car keys from the letterbox. The pair usedthe keys to open the complainant's Audi and drive away. The complainant calledPolice. They found Mr Usoalli in the passenger seat a little later. Mr Usoalli exercisedhis right to silence. He pleaded guilty 6 May 2021.[3] Judge Greig said this when passing sentence:4The Crown submission is that the starting point should be six months'imprisonment. They cite cases, and I agree that that probably is where thisshould begin. They call for a small uplift. A very modest uplift might bejustified, but that would be subject to the full discount because the chargeswere changed, which would bring the sentence to around the four or fivemonth imprisonment mark. That clearly allows me to look at electronicallymonitored options and other options. What I really take account of is thatMr Usoalli has spent eight months on either a 24 hour curfew or electronicallymonitored bail. That is a long time and I do not have any information beforeme that suggests he has breached that. I then therefore certainly take that intoaccount and reduce the sentence further.Mr Usoalli has a job offer, I understand. He works for a demolition firm, andso I would like him to be working if possible. That is the best way to ensurethat he remains offence-free.So the result of all of that is a sentence of three months' community detentionto be served at your address at ... Your curfew hours are daily from 7 pm to7 am for the next three months, and 18 months' intensive supervision. I haveimposed that so you can build on what I hope you have started to already. Itis designed for you, okay? I wish you well, Mr Usoalli, good luck.[4] Mr Usoalli argues the Judge did not give adequate weight to his time on bail,electronically monitored and otherwise. On Mr Usoalli's behalf, Ms So says this1 R v Usoalli [2021] NZDC 16243.2 Criminal Procedure Act 2011, s 250(2).3 Tutakangahau v R [2014] NZCA 279.4 R v Usoalli, above n 1, at [5]–[7].feature should have left a sentence of one-month imprisonment, which could havebeen commuted to a term of supervision only.[5] To elaborate, Mr Usoalli was on electronically monitored bail for four and ahalf months. He spent another three and a half months on a 24-hour curfew, withoutelectronic monitoring. The Judge was bound to consider the former (and associatedcircumstance) by dint of s 9(3A) of the Sentencing Act 2002. It was open to the Judgeto consider the latter because of s 9(4) of the same Act.[6] Ms So also says Mr Usoalli was remanded in custody for 53 days, somethingnot brought to the Judge's attention, and this factor mitigated sentence.[7] I accept:(a) Ms Masters' submission on behalf of the respondent the Judge did noterr in relation to bail. Each type of bail permitted Mr Usoalli to work,so each's restrictiveness was appreciably diminished. Moreover,Mr Usoalli breached bail 19 October and 14 November 2020, and again21 April 2021. The first two breaches were apparently not serious, butthey were still breaches.(b) Ms So's submission in relation to time in custody. The Judge was nottold of this. Had he been, it is almost certain the term of intensivesupervision would have been appreciably shorter. Absent suchallowance, this term is manifestly excessive.[8] I am not persuaded to further interfere. While Ms So is correct the Judge'sworkings are a little opaque, it was open to the Judge to conclude Mr Usoalli wouldbenefit from a combination of sentences that promoted rehabilitation and oversight.Materially, Mr Usoalli may continue to work despite community detention andintensive supervision.[9] The appeal is allowed to the extent the term of intensive supervision is reducedto 12 months. The sentence of community detention remains...Downs J