The Queen v Riri [2008] NZCA 441 (24 October 2008)

Last Updated: 29 October 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA432/2008

[2008] NZCA 441

THE QUEEN

v

MICHAEL RIRI

Hearing: 14 October 2008

Court: O'Regan, Potter and Fogarty JJ

Counsel: W Lawson for Appellant
T Epati for Crown

Judgment: 24 October 2008 at 11.30 am

JUDGMENT OF THE COURT

1. The appeal is allowed. The sentence of imprisonment imposed in the High Court is quashed.
2. A sentence of six months’ home detention is imposed on the terms and subject to the conditions set out at [20] – [21] of the Reasons of the Court.
   

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1] The appellant, Mr Riri, is a paraplegic who was found by a jury to be guilty of possession of methamphetamine for the purpose of supply. On 16 May 2008 MacKenzie J sentenced him to two years and three months imprisonment. He appeals and seeks a sentence of home detention. His principal argument is that he needs 24 hour nursing care which cannot be provided in Waikeria Prison, the only prison in the country capable of taking paraplegic prisoners. He relies on information which was not before MacKenzie J at the time of sentencing.

The facts of this case as known to the Judge

[2] The police executed a search warrant at the appellant’s address on 21 September 2006. They found in his bedroom, in clear snaplock bags, a total of 14.6 grams of methamphetamine, and two sets of electronic scales. Methamphetamine residue was found on both sets of scales. They also located two surveillance cameras which were fastened to the appellant’s front kitchen window frame transmitting to a television screen in his bedroom, enabling him to view the front door. When spoken to he admitted the methamphetamine was his and stated it was for his own personal use. He also added that he had traded ten ounces of cannabis for the methamphetamine the night before.
[3] The sole issue at trial was whether the appellant possessed the 14.6 grams for the purpose of supply or only, as he contended, for his personal use. The jury found him guilty.
[4] The Judge knew that he was confined to a wheelchair and would require assistance on a daily basis while in prison. He recognised that therefore a sentence of imprisonment would be more severe for him than for an able-bodied prisoner.

The sentencing analysis in the High Court

[5] The Judge found that although the 14.6 grams would place the case squarely within Band 2 of R v Fatu [2006] 2 NZLR 72 (CA), a part, possibly a considerable part of the drugs, would have been for his own use. Accordingly, he placed the appellant on the cusp between the bottom of Band 2 and the top of Band 1 and took as a starting point three years. He considered raising that period by reason of his previous drug convictions (for dealing in cannabis) and the fact that he had continued and escalated his offending. However, in this case given the relatively low level of that offending he did not consider any upward adjustment was required.
[6] As mitigating personal factors he took into account the appellant’s physical circumstances. He was of the view that there should be a reduction in the length of sentence because of his physical circumstances but that those circumstances did not justify the adoption of a non-custodial sentence and in particular, home detention. This was because the appellant had received what might be seen as lenient treatment for previous offending but had continued to offend and the Judge thought a non-custodial sentence would not carry with it a sufficient deterrent element in this case. Home detention would not generally be appropriate for methamphetamine dealing offending.
[7] The Judge allowed a reduction of nine months because of his personal physical circumstances leaving an end sentence of two years three months.

Additional facts before this Court

[8] After he was sentenced on 16 May the appellant was sent to Waikeria Prison where he stayed two days. He was then moved by the prison authorities to the Laura Ferguson Trust Unit in Greenlane Auckland. This was because the prison did not have

... a health structure in place to provide Mr Riri with the level of care that his condition requires nor will it in the foreseeable future. Likewise, there is no prison facility in the country which has the sufficient structure or trained staff to provide Mr Riri with the level of care he requires.

This was the advice provided to this Court by Mr Paul O’Byrne, the manager of Waikeria Prison.

[9] We have been provided with considerable detail as to Mr Riri’s nursing needs. He sustained a fractured cervical spine in 1993, leaving him completely paralysed from the waist down. He has also lost most of the use of his upper limbs. He has no sensation and no control over his bowel movements. Generally these are controlled by a day-carer giving him a microlax enema but from time to time accidents occur occasionally at night, up to twice a month. He has no control over his bladder. Rather, he has a uritip which empties into a bag. Unfortunately, this sometimes comes off and needs to be replaced immediately.
[10] He suffers from muscle spasms. If they occur at night they can result in falling out of bed. This happens about twice a week. He is on medication which needs to be administered three times daily.
[11] Mr Riri’s skin is vulnerable. He is prone to skin wounds. During recuperation from these wounds he has to be turned every three hours from side to side.
[12] For these reasons he needs 24 hour care. It is obvious that apart from his regular needs there are inevitably incidents, sometimes at night, which can only be met by the presence of a carer.

The home detention proposal

[13] He seeks a sentence of home detention to a residence at Tokoroa. The dwelling meets ACC requirements. The ACC will provide funding to support numerous support workers and carers in his home on a regular daily basis. He has family in the area who are also prepared to help, including his mother. Home detention is an available sentencing option in this case for the reasons given in R v Hill [2008] 2 NZLR 744 (CA).

Consideration of home detention

[14] Counsel before us made no significant criticism of the reasoning of MacKenzie J. Rather, the argument was that the Judge did not have before him the detailed information we now have as to Mr Riri’s need for 24 hour care. The Judge did not know that those needs cannot be met currently or in the foreseeable future by the prison system. Were he to be kept in prison without those needs being met he would suffer special hardship making his sentence quite disproportionate to that given to able-bodied prisoners for similar offending.
[15] The Laura Ferguson Trust Unit was never intended to be a prison institution. It is very expensive for the State to maintain him there. In addition to his nursing care the State is paying for a personal guard on a 24 hour basis.
[16] We are satisfied in this most unusual case that there is no practical alternative to home detention. However, given his past offending there is a need for conditions which realistically address the potential for further offending while on home detention.
[17] One of the standard conditions for any home detention is that the person detained is not to consume or possess any illicit drugs other than those prescribed by a general practitioner. Normally this condition is monitored by the probation officer. We expressed our concern to counsel during the hearing that we saw it as very important that there be a regime to ensure this condition is strictly enforced given the nature of the offending for which Mr Riri is being sentenced and the fact that that offending occurred in his home. It is not clear to us that the probation service will be able to monitor compliance with any regularity given that Mr Riri’s home detention address is in Tokoroa. Mr Lawson agreed on Mr Riri’s behalf that a condition allowing the police to monitor compliance was appropriate. Given Mr Riri’s lack of mobility this can realistically be achieved only by giving the police the ability to enter the home detention address to undertake this monitoring function. So, in the very unusual circumstances of this case we conclude that an additional condition along those lines is appropriate. This is an unusual condition but is empowered by s 80D(2) of the Sentencing Act 2002 as we are satisfied there is a significant risk of re-offending but for this special condition.
[18] The appellant has served five months. He is eligible for parole after nine months.
[19] The duration of home detention sentences is usually assessed taking into account that the offender must serve the full term of the sentence of home detention without being eligible for parole. Mr Riri has served approximately five months of his sentence, although he has been resident in the Laura Ferguson Trust Unit except for the first two days of his sentence served at Waikeria Prison. He would become eligible to apply for parole in February 2009. We are of the view that an appropriate sentence for home detention would be six months from now.

Result

[20] This appeal is allowed. A sentence of home detention for six months is imposed. Mr Riri will be required to be taken directly from the Laura Ferguson Trust Unit to 173 Papanui Street, Tokoroa, and to remain there where he will be met by a Chubb Security officer and probation officer.
[21] The following conditions will apply:

1. To reside at 173 Papanui Street, Tokoroa, for the duration of the home detention sentence, and not to move without the written consent of the probation officer.
2. To undergo assessment, and if found suitable, undertake and complete drug counselling to the satisfaction of the probation officer and the counsellor provider.
3. Not to consume or possess any illicit drugs other than those prescribed by a general practitioner.
4. To permit and facilitate access by police at any time, and from time to time, to enter the dwelling at 173 Papanui Street, Tokoroa, to monitor compliance with condition No. 3.
   

Solicitors:
Lance Lawson, Rotorua for Appellant
Crown Law Office, Wellington