Eria v Police HC Wellington CRI-2010-485-121 [2010] NZHC 2441 (20 December 2010)

Last Updated: 18 November 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2010-485-121}

KANE ERIA

v

NEW ZEALAND POLICE

Hearing: 17 December 2010

Counsel: R M Gould for Appellant

J Murdoch for Crown

Judgment: 20 December 2010

_{JUDGMENT OF JOSEPH WILLIAMS J}

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 20th December 2010.

Solicitors:

Blackstone Chambers, Wellington

Crown Solicitors, Wellington

ERIA V NEW ZEALAND POLICE HC WN CRI-2010-485-121 20 December 2010

[1] This appeal has come to me late as a result, it appears, of the file being mislaid. I am grateful to counsel for their assistance (in the police’s case at least) at short notice.

[2] Mr Eria pleaded guilty to a charge of robbery as a party. He was sentenced to

10 months’ imprisonment with leave to apply for home detention to allow him to be admitted to Moana House, a drug and alcohol treatment facility operating in Dunedin. The appeal is based on two grounds.

[3] The first is that his counsel Ms Gould was not given an opportunity to argue for a lesser or different form of sentence. The second is that the sentence which Mr Eria received was insufficiently different to that imposed on the principal offender, Mr Norton, and was therefore wrong. Ms Gould argued that the sentence should be reduced from 10 months to 8 or 9 months’ imprisonment to allow release prior to Christmas subject to a proposed release plan.

[4] Mr Norton, the primary offender was sentenced to 12 months’ imprisonment from a 21 month starting point. The discounts were to reflect his youth (he was

18 years old), lack of support, and a guilty plea. Leave to apply for home detention was declined.

[5] The starting point for Mr Eria was 15 months’ imprisonment with a full 33%

discount for his guilty plea. There was no discount however for youth – he being

25 years. That explains the proximity between the two end points in my view even though they started six months apart. Both sentences were well within the Judge’s discretion.

[6] Ms Gould argued that because she was unable to make submissions, her application for adjournment having been declined, and her attempt to interrupt the sentencing process with further submissions having been overruled, she was not given an opportunity to argue for Eria and Norton to be sentenced together.

[7] I am not satisfied that joint sentencing would have produced a materially different outcome.

[8] What is clear from reading the file is that Mr Eria is greatly in need of support when he leaves prison. This current offending occurred within days of his release from a previous sentence and there is every indication that this will occur again unless some therapeutic intervention is provided.

[9] It was originally hoped that Mr Eria would be released through home detention to Moana House, as I have said, but it transpires that Mr Eria has convictions for sex offending and, since Moana House is co-educational, sex offenders may not be admitted. That took matters back to square one.

[10] Ms Gould advises that the Salvation Army Bridge Programme is prepared to accept Mr Eria as early as late January or early February but definitely in March.

[11] I am satisfied that this is a changed circumstance that was not known to the sentencing Judge. I am also satisfied (as Judge Behrens QC must have been in light of the leave he gave to apply for home detention), that therapeutic intervention is a crucial aspect of sentencing in Mr Eria’s case.

[12] In light of these new circumstances and this new opportunity, I set aside the sentence imposed and substitute 9½ months’ imprisonment with standard and special release conditions, in particular that Mr Eria attend the Salvation Army Bridge Programme as soon as a place is made available for him.

_{[13] The appeal is allowed to that extent.}

Joseph Williams J