ERIHA v NEW ZEALAND POLICE [2019] NZHC 2416

ERIHA v NEW ZEALAND POLICE [2019] NZHC 2416IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-28[2019] NZHC 2416BETWEEN TUI ERIHAAppellantAND NEW ZEALAND POLICERespondentHearing: 17 September 2019Appearances: W R Hawkins for the AppellantL M Marshall for the RespondentJudgment: 24 September 2019JUDGMENT OF DOOGUE JIntroduction[1] On 22 July 2019, the appellant, Tui Eriha, appeared before Judge Rea in theDistrict Court at Hastings having pleaded guilty to a charge of burglary1 and havingbeen found guilty of a charge of indecent assault.2 Judge Rea sentenced Mr Eriha to19 months' imprisonment.3[2] Mr Eriha appeals the sentence on the basis the Judge erred in declining toimpose a sentence of home detention and therefore imposed a sentence that wasmanifestly excessive.1 Crimes Act 1961, s 231; maximum penalty of 10 years' imprisonment.2 Section 135; maximum penalty of seven years' imprisonment.3 New Zealand Police v Eriha [2019] NZDC 14275.Background[3] In the early hours of 18 November 2019, Mr Eriha went to the home addressof the complainant (who is known to him) and knocked on her front door. He hadbeen drinking. One of the complainant's sisters who was asleep in the lounge heardthe knock but did not initially open the door. A short time later, she heard a door openand close so went outside to see who it was.[4] The complainant's sister saw Mr Eriha standing outside the complainant'swindow. Mr Eriha told the complainant's sister he was looking for someone, to whichshe replied whoever he was looking for was not at the house. She then shut the door.[5] Shortly after this, Mr Eriha climbed inside the complainant's window. Hewalked over to her bed where she was asleep and whispered into her ear that he knewshe could hear him. He pulled back the blankets and rubbed the side of her body withhis hands. It was at this point the complainant realised Mr Eriha was not her partner.[6] Mr Eriha continued to rub the side of the complainant's body. He then put hishands down her shorts and underwear and rubbed her buttocks. Mr Eriha got up,walked over to the light switch and turned it on and off. It was when the light cameon that the complainant recognised Mr Eriha.[7] The complainant ran out of her bedroom and into a family member's bedroomto tell them what had happened. Mr Eriha jumped out of the window and ran off downthe street. He was followed by the complainant's family member who also recognisedhim as he was running away.District Court decision[8] After outlining the charges and the facts, the Judge remarked that Mr Eriha'soffending was "serious" and went on to categorise it as a "home invasion typeoffence".4 The Judge then noted Mr Eriha's history of burglary offending in theYouth Court and the fact he had previously been given a "first-strike warning". TheJudge noted the pre-sentence report recommended a sentence of home detention, but4 At [4]–[5].equally stated "whether in fact it could be said to be a recommendation for homedetention is open to debate."5 A review of the report itself gives some strength to theJudge's comment. The report has no analysis of the option of home detention, itmerely assesses the proposed premises as being suitable. In short, little guidance wasprovided to the Judge on this aspect.[9] The Judge then turned to the sentence itself, which he imposed as follows:(a) He adopted a starting point of 21 months' imprisonment.(b) He did not impose any uplifts to the starting point as he considered thetwo charges to be "part and parcel of the same offending".6 In addition,while Mr Eriha had previous convictions, the Judge acknowledgednone of them were of a sexual nature.(c) He gave a two-month credit for Mr Eriha's guilty plea for the burglarycharge.[10] The final sentence came to 19 months' imprisonment for both charges. Inrespect of whether home detention was appropriate, the Judge stated:[7] Mr Foster in his submissions suggests that the appropriate sentence isone of home detention. I do not consider that that is suitable in thecircumstances here where you have gone into somebody's bedroom in the deadof night and you have indecently assaulted them. There is a home invasionaspect to it which I think needs to bring to you and anybody else that there isa price to pay for that sort of offending.[11] The Judge ultimately sentenced Mr Eriha to 19 months' imprisonment on bothcharges, running concurrently. He also imposed standard release conditions and threefurther special conditions: two which were rehabilitative in nature (assessment andtreatment for drug and alcohol addiction) and one prohibiting Mr Eriha fromassociating with or contacting the complainant without prior approval of aProbation Officer.5 At [5].6 At [6].Approach on appeal[12] This is an appeal against sentence under to s 244 of theCriminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on convictionand that a different sentence should be imposed.[13] A sentence appeal is an appeal against a discretion and only if the sentence ismanifestly excessive or contains an error in principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failingto take into account a relevant consideration, or if the decision was plainly wrong.7The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.8Submissions[14] Mr Hawkins for Mr Eriha submits the District Court Judge erred in decliningto commute the sentence of 19 months' imprisonment to home detention on the basisthe Judge focused solely on one sentencing principle, being denouncement anddeterrence. This was, he says, at the exclusion of other relevant principles, namely theneed to consider Mr Eriha's rehabilitation and the need to impose the least restrictivesentence in the circumstances. Mr Hawkins further submits the pre-sentence report,which was largely favourable to Mr Eriha and which recommended home detention,was given no weight by the Judge. Had these factors been properly considered,Mr Hawkins submits a sentence in the range of 10 months' home detention would havebeen imposed.9[15] Ms Marshall for the Crown submits the District Court Judge made no error indetermining that denunciation and deterrence were factors which favoured a sentenceof imprisonment over home detention. She further submits that sentencing Judgeshave a wide discretion as to whether to commute a short term of imprisonment to home7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]–[35].8 Ripia v R [2011] NZCA 101 at [15].9 Mr Hawkins submits that if the Court were to quash Mr Eriha's sentence and substitute it with asentence of home detention, it should be reduced by four months to adequately reflect Mr Eriha'stime in custody since his sentencing on 22 July 2019.detention and are often better placed than an appellate court to make such anassessment. She says the Judge made his decision after taking into account theevidence of the complainant, Mr Eriha's criminal history and the pre-sentence report.[16] However, in the event this Court concludes a sentence of home detention wasmore appropriate, Ms Marshall submits that any reduction to reflect time spent incustody should be lower than that proposed by Mr Hawkins (four months).Relevant law[17] This appeal concerns a narrow question of law: did the District Court Judgeerroneously exercise his discretion in refusing to commute a short sentence ofimprisonment to home detention, such that the sentence of 19 months' imprisonmentwas manifestly excessive.[18] It is trite to say that in sentencing an offender, the sentencing Judge must takeinto account all of the principles in s 8 of the Sentencing Act 2002 ("the Act"). Attimes, these principles may appear to be in conflict.10 For example, denouncing anoffender's conduct and deterring others from engaging in it may require a lengthysentence being imposed, while assisting in the offender's rehabilitation may require alesser one. Resolving any conflict will require an exercise of judgement in weighingup and balancing the statutory principles and purposes of sentencing in that particularcase.11[19] Imprisonment is the most restrictive sentence in the hierarchy of sentences inthe Act.12 It is, as the Court of Appeal noted in R v Rawiri, "a measure of last resort".13Section 16(1) of the Act provides that when considering the imposition of a sentenceof imprisonment, the Court "must have regard to the desirability of keeping offendersin the community as far as that is practicable and consonant with the safety of the10 Palmer v R [2016] NZCA 541 at [19].11 R v Vhavha [2009] NZCA 588 at [29]. This was in dissent but this point was later adopted inOsman v R [2010] NZCA 199 at [20]. See also Palmer v R, above n 10, at [19].12 Sentencing Act 2002, s 10A.13 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].community." Further, where the Court has a discretion as to whether to impose asentence of imprisonment, it must only do so if satisfied that:14(a) the sentence is being imposed for all or any of the purposes ofsentencing in s 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the principles in s 8 of theAct in the particular case.[20] Home detention is available if the Court would otherwise sentence the offenderto a short-term sentence of imprisonment (defined under s 4(1) of the Parole Act 2002as a sentence of 24 months or less) and, as with the imposition of a sentence ofimprisonment, the purpose or purposes for which sentence is being imposed cannot beachieved by any less restrictive sentence or combination of sentences.15[21] However, before a sentence of home detention can be imposed, the technicalcriteria in s 80A must be met. These criteria will ordinarily be addressed in anypre-sentence report (which is a prerequisite for consideration of home detention).16Analysis[22] While a Court must always impose the least restrictive outcome appropriate inthe circumstances,17 unless expressly stated, there is no presumption in favour of homedetention where a short-term sentence of imprisonment is determined to beappropriate.18 It is ultimately a matter of discretion and an "evaluative assessment ofall the circumstances" is required.19 Nevertheless, the Court of Appeal has previously14 Sentencing Act 2002, s 16(2).15 Section 15A(1).16 Section 26A(1).17 Section 8(g).18 R v Stacey [2002] NZCA 465 at [21].19 R v Risschop [2008] NZCA 229 at [18]–[19].commented that home detention provides a real alternative to imprisonment.20 This isbecause it carries with it the principles of denunciation and deterrence.21[23] In undertaking this evaluative assessment, it is paramount that the sentencingJudge applies ordinary sentencing principles, that is, takes heed of the (discretionary)purposes and (mandatory) principles of sentencing in ss 7 and 8 of the Act. Failure todo so constitutes an error of law. As the Court of Appeal in Fairbrother v R stated:22[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing Judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any of the countervailing purposes of sentence.[30] That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equally would bean error of law. What it does mean is that the judge must make a consideredand principled choice between the two forms of sentence, recognising thatboth serve the principles of denunciation and deterrence, and identifyingwhich of them better qualifies as the least restrictive sentence to impose takinginto account all the purposes of sentencing.[24] The Court went on to acknowledge that at times, distinguishing between themore appropriate sentence may be difficult.23 However, even in those cases, "thefactors that really count must be identified and weighed".24[25] This appeal concerns the second error of law identified in Fairbrother: theappellant argues the purpose of deterrence was given complete priority without regardto any of the countervailing purposes of sentencing.25[26] It is clear from the District Court Judge's decision that the principles ofaccountability, denunciation and deterrence were uppermost in the Judge's mind. Thisis because the Judge:20 R v Iosefa [2008] NZCA 453.21 R v Ismail [2016] NZHC 79 at [45].22 Fairbrother v R [2013] NZCA 340 (footnotes omitted).23 At [31], citing R v D (CA253/2008) [2008] NZCA 254 at [66].24 At [31].25 See also Manikpersadh v R [2011] NZCA 452 at [8].(a) categorised Mr Eriha's offending as serious, emphasising its home-invasion-type nature;(b) acknowledged Mr Eriha's "past history for burglary in theYouth Court";(c) noted Mr Eriha had previously received a first strike warning;(d) by implication, simply noted, but did not discuss in any detail, therecommendation in the pre-sentence report that home detention was themost suitable sentence and was available as a sentencing option inMr Eriha's case; and(e) emphasised the need to "bring home" to Mr Eriha and anyone else thatthere is "a price to pay for this sort of offending".[27] Nevertheless, the Judge's sentencing notes demonstrate that the principles ofaccountability, denunciation and deterrence were weighed against the other principlesin the Act, particularly the need to rehabilitate Mr Eriha and reintegrate him into thecommunity. The Judge addressed rehabilitation in the special release conditions,directing Mr Eriha to attend an assessment for a medium intensity rehabilitationprogramme as directed by the Probation Officer and to undertake counselling,treatment or any programme that flowed from that. In addition, he directed Mr Erihato attend an assessment for drug and alcohol counselling and to undertake anytreatment or programme recommended as a result.[28] It is significant in my view that the pre-sentence report was devoid of anyproper analysis or reasoning for its recommendations which put simply, appeared tobe a box ticking exercise for the suitability of the proposed premises and no more thana recitation of the factual history of the offending and some scant remarks aboutMr Eriha's insight into his offending. In short, it did not amount to a full reasonedcase for an alternative to imprisonment.[29] I consider in all the circumstances that the Judge did address all of the purposesand principles of sentencing, did have regard to the pre-sentence report and didconsider rehabilitation in sentencing Mr Eriha.[30] I also agree with Ms Marshall that in concluding a short term of imprisonmentwas warranted in the circumstances, the Judge also took into account the impact ofMr Eriha's offending on the victim as well as his conviction history. Mr Eriha haspreviously served three terms of home detention, including one for a conviction for a"first-strike" offence. Clearly, these sentences have failed to deter Mr Eriha fromfurther offending. While in and of itself this factor is not determinative of theappropriateness of a short term of imprisonment over a term of home detention, incombination with the seriousness of Mr Eriha's offending, the impact on the victimand the absence of any meaningful case for home detention in the pre-sentence report,the Judge considered 19 months' imprisonment to be the least restrictive outcome inthe circumstances. I consider this conclusion was open to the Judge and therefore seeno error in his reasoning.[31] For these reasons, the appeal is dismissed.Result[32] The appeal is dismissed.Doogue JSolicitors:Bramwell Bate Lawyers, HastingsCrown Solicitor, Napier