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Harding-Reriti v Police [2021] NZHC 1296 (3 June 2021)
Last Updated: 28 July 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI
ROHE
|
|
BETWEEN
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JAY HARDING-RERITI
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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3 June 2021
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Appearances:
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A Bailey for Appellant
C E Martyn for Respondent
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Judgment:
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3 June 2021
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ORAL JUDGMENT OF VENNING J
Solicitors: Raymond Donnelly & Co, Christchurch Counsel: A
Bailey, Christchurch
HARDING-RERITI v NEW ZEALAND POLICE [2021] NZHC 1296 [3 June
2021]
- [1] On 12
November 2019 Judge A A Couch sentenced Mr Harding-Reriti to 12 months’
imprisonment on charges of possession of explosives
and possession of offensive
weapons.1 The Judge concluded his sentencing remarks as follows:
- [5] ... That
leaves an end sentence of 12 months’ imprisonment which is what I impose
on each of these charges concurrently.
- [6] Leave to
apply for substitution of sentence is denied.
- [7] There will
be standard release conditions by operation of the Sentencing Act 2002, but I
impose no special conditions.
- [2] Mr
Harding-Reriti has served his sentence of imprisonment. However in the course of
disclosure recently provided to him in relation
to fresh charges he has learnt
that his criminal history records that he was sentenced to standard release
conditions. He seeks to
appeal his sentence to correct that
record.
- [3] The first
issue is that the appeal is out of time. Leave is required. However, as noted,
the issue only recently came to Mr Harding-Reriti’s
attention. Leave is
granted.
- [4] Mr
Harding-Reriti’s counsel, Mr Bailey, has engaged in correspondence with
the Executive Judge at the Christchurch District
Court regarding the record. It
appears clear enough from that exchange that the sentencing Judge did not impose
standard conditions
when sentencing Mr Harding-Reriti. That appears to have been
on the mistaken basis that standard conditions would be imposed under
the Parole
Act 2002. While that may have been the Judge’s intention, it was in error.
Section 93(1) of the Sentencing Act 2002
applies:
93 Imposition of conditions on release of offender sentenced
to imprisonment for short term
(1) A court that sentences an offender to a term of
imprisonment of 12 months or less may impose the standard conditions
and
any special conditions on the offender and, if it does so, must specify when the
conditions expire.
1 New Zealand Police v Harding-Reriti [2019]
NZDC 22788.
- [5] While the
Judge could have imposed standard release conditions, he did not do so. Standard
release conditions did not apply by
operation of the Sentencing Act 2002 as the
sentence of imprisonment was for 12 months.
- [6] In R v
Dodd this Court accepted that in R v Scott the Court of Appeal
appeared to accept there was jurisdiction to vary a sentence provided the
sentence was set aside and reimposed
in open Court.2 It would have
been open for the Judge to have re- sentenced Mr Harding-Reriti before his
sentence was completed, but the point is
moot in the present circumstances given
that he has completed his sentence without being
re-sentenced.
- [7] The Crown
reasonably accepts it is a matter for this Court whether the Court considers
removal of the conditions is appropriate.
- [8] The position
is that the Judge did not impose standard conditions when imposing the sentence.
Standard conditions could not be
imposed by statute. The sentence has not been
reviewed or reimposed. Mr Harding-Reriti’s record should reflect that
position,
that the correct position is that he was not sentenced to standard
release conditions.
- [9] The issue is
how best to achieve that clarification. On one view nothing should be required
as the Judge did not impose standard
conditions of release and they could not be
imposed by operation of law. However, the record as it stands is
incorrect.
- [10] The most
effective way to achieve the desired result seems to be to formally allow the
appeal and reimpose the sentence, expressly
without the standard conditions of
release.
- [11] For those
reasons the appeal is therefore allowed.
- [12] The
sentence imposed by the District Court is set aside. I confirm and reimpose Mr
Harding-Reriti’s sentence of 12 months’
imprisonment on each of
the
2 R v Dodd [2019] NZHC 667 at [19], citing
R v Scott CA381/02, 14 May 2003.
charges of possession of an offensive weapon and unlawful possession of a
firearm concurrently. No standard or special conditions
of release are however
imposed.
Venning J
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