Tesema v Department of Corrections

[2018] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-136 [2018] NZHC 1002

BETWEEN

RONNIE TESEMA

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	On the papers
Appearances:	H Kim for Appellant A Devathasan for Respondent
Judgment:	9 May 2018

JUDGMENT OF LANG J

Thisjudgment was delivered by me on 9 May 2018 at 12.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TESEMA v DEPARTMENT OF CORRECTIONS [2018] NZHC 1002 [9 May 2018]

[1]      0n 1 December 2017 Mr Tesema was sentenced to 22 months imprisonment in the District Court on one charge of aggravated robbery and two charges of assaulting a female.   He was given leave to apply for home detention under s 80I of the Sentencing Act 2002.

[2]      Later that month, Mr Tesema obtained an address at which he could serve a sentence of home detention. The sentence of imprisonment was accordingly cancelled on 22 December 2017, and a sentence of ten months home detention was substituted in its place.

[3]      After completing 36 days of the sentence of home detention, Mr Tesema was expelled from the institution at which he was serving the sentence.  This occurred on

27 January 2018.

[4]      On 28 February 2018, Judge Andrée Wiltens re-sentenced Mr Tesema to

20 months imprisonment after he had spent 32 days in custody awaiting re-sentence.1

Mr Tesema has now appealed against that sentence on the basis that it was manifestly excessive. His current release date under the sentence is 10 June 2018.

[5]      Counsel for the appellant and the respondent have filed a joint memorandum in which they confirm they have agreed that the Judge erred on 28 February 2018 in the following respects:

(a)      By  re-sentencing  Mr  Tesema  having  regard  to  the  sentence  of

22 months imprisonment imposed on 1 December 2017 rather than the sentence of home detention imposed on 22 December 2017; and

(b)Failing to take into account the time Mr Tesema had spent in custody awaiting re-sentence. The parole authorities have no ability to treat this as being a period of custody on remand because Mr Tesema remained subject to the sentence of home detention through the period.2

1      R v Tesema [2018] NZDC 7221.

2      See Hawkins v Chief Executive of the Department of Corrections [2015] NZHC 1001 at [16].

[6]      Counsel have further agreed that the appropriate sentence on 28 February 2018 was one of 16 months imprisonment and not 20 months imprisonment.   Had this sentence been imposed, Mr Tesema’s statutory release date would have been 10 April

2018.  Against that background they seek an urgent order that the appeal be placed before a Judge as soon as possible and allowed.

[7]      Having reviewed the material placed before me by counsel I am satisfied they are correct.   The appeal against sentence is therefore allowed by consent and the sentence of 20 months imprisonment imposed on 28 February 2018 is quashed. In its place I impose a sentence of 16 months imprisonment.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau