Tahere v Police [2012] NZHC 3503 (18 December 2012)

Last Updated: 4 February 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-454-000031 [2012] NZHC 3503

DAVID TAHERE

v

NEW ZEALAND POLICE

Hearing: 12 December 2012

Counsel: P J Knowsley for Appellant

I R Murray for Respondent

Judgment: 18 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.00pm on the 18th December 2012.

_{JUDGMENT OF WILLIAMS J}

Solicitors

P Knowsley, PO Box 5289, Wellington

Crown Solicitor, Wellington

DAVID TAHERE V NEW ZEALAND POLICE HC WN CRI-2012-454-000031 [18 December 2012]

[1] Mr Tahere was sentenced in the District Court in Palmerston North on

18 July 2012 to 15 months and three weeks’ imprisonment with six month release conditions, including attending mental health and drug dependency assessments and completion of appropriate treatment programmes as may be recommended. The sentence was imposed in respect of six counts: burglary on 13 March 2012, unlawful possession of a firearm, possession of utensils for cannabis and possession of cannabis, all on 8 June 2012, a further burglary count on 20 June 2011 and one count of possession of a knife in a public place. Mr Tahere has a long and determined criminal history over the last 30 years, including many burglary counts.

[2] The burglary count on 20 June 2011 and a count of possession of a knife in a public place were re-sentencings make necessary because he had been sentenced to

150 hours’ community work for these offences and still had 90 hours outstanding at

the time of sentence for the other offending.

[3] The reason for his failure to complete his community work is at the core of this appeal. The probation report on sentencing confirmed that Mr Tahere suffers from paranoid schizophrenia and is in fact very unwell. The writer assessed him as “too unstable to go out with the standard work parties due to his level of paranoia and his volatile nature”. He was given the option of working at a church instead, but “people at the church become uncomfortable with him being around as he was arguing with himself”.

[4] Mr Tahere is assessed (with good cause) as having a very high likelihood of reoffending in the manner that he has in the past.

[5] In my view this appeal should be allowed for one reason. The court failed to take account in sentencing of the potential effect of the appellant’s mental illness on his culpability firstly, and secondly, the need to impose a sentence that properly recognised the presence of the illness and the need for treatment. A s 38 report under the Criminal Procedure (Mentally Impaired Persons) Act 2003 was required and may well have affected the tailoring of this sentence.

[6] This appeal has come to this court late in Mr Tahere’s sentence. He is to be released, I understand, on 30 January 2013. He has refused treatment so far in prison, claiming it has a negative impact on him.

[7] Given the time it would take to have a s 38 report completed at this time of the year, the option of ordering one at this late stage is simply not practical. The only option available to me is to reduce sentence by six weeks in order to take account of the factor I have discussed and to impose fresh release conditions for six months as follows:

(a) upon release Mr Tahere must present himself to the Probation Service so that a proper mental health assessment by a psychiatrist can be made;

(b) Mr Tahere must thereafter attend and participate in any programme of treatment to which he is directed that assessment;

(c) he must take such medication as may be prescribed by a psychiatrist to treat or alleviate his condition.

[8] The appeal is allowed. The sentence is reduced as indicated and the appellant is to be released forthwith, with new release conditions as indicated.

Williams J