A v Police HC Dunedin CRI 2010-412-40

[2010] NZHC 2274

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2010-412-000040

A

Appellant

v

POLICE

Respondent

Hearing:         16 December 2010

Counsel:         S N Claver for Appellant

R D Smith for Respondent

Judgment:      16 December 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence, on a charge of a common assault, to nine months’ supervision with special conditions that the appellant attend and complete a Pathways for Women programme, and also three months’ community detention with a 7 pm to 7 am curfew each day of the week;  and in respect of two charges of breach of community work, the same sentence as above plus a new sentence of 150 hours.

[2]      The  appeal  is  confined  to  the  imposition  of  three  months’  community detention.    Mr Claver’s argument is that the Judge should have taken into account that the appellant had been subject to a bail curfew of 10 pm to 7 am between

14 June and 8 October, which in itself equates to a community detention sentence of

A V POLICE  HC DUN CRI 2010-412-000040  16 December 2010

some four to five months.   So, logically, it should have been appreciated she had already served the equivalent of a three months’ community detention sentence.  He asked for that part of the sentence to be deleted.

[3]      He relies on s 8(h) of the Sentencing Act 2002 requiring the Court to take into account the particular circumstances of the offender which meant that a sentence which would otherwise be appropriate would be in the particular instance proportionally severe.

[4]      Mr Smith, for the Crown, has helpfully drawn the Court’s attention to a decision:   Winkelmann v R [2010] NZCA 215 in which the Court in a judgment given by William Young P says:

[21]     We recognise that the appellant spent a year on bail and that during this time he was subject to a curfew.  However, time spent on bail before sentence is usually only taken into account where the conditions of bail were very restrictive.  In this case, there was a curfew but not on a 24 hour basis and the resulting regime was not akin to home detention.  We are therefore inclined to view that a particular discount was not required.  In any event, at most only a modest allowance would have been justified.   The restraint demonstrated by the judge’s uplift of only three months for the appellant’s previous serious offending and the generosity of the 20 per cent discount for the plea seem to us to more than compensate for the lack of an explicit allowance  for  this  factor.    In  saying  this  we  note  that  at  [15]  of  the sentencing remarks the Judge did refer to the fact that the appellant had been on bail “on a strict curfew” and that he took this into account.

[5]      This Court is aware that there are occasions, particularly when the bail is equivalent to home detention that that deprivation of liberty is taken into account when settling upon a sentence which in itself entails a curtailing of liberty.

[6]      Mr Claver’s argument is logically sound but as a famous Judge once said “logic is not actually the life of the law”.  I think that was Justice Oliver Wendell Holmes Jnr.  It is my understanding of the jurisprudence, as indicated by the Court of Appeal in Winkelmann, it is only where the conditions of bail effectively amount to a sentence of home detention that will be counted normally when settling upon a sentence of imprisonment or an actual sentence of home detention.

[7]      If we were to take into account the liberty constrained by application of a curfew that would be a quite significant change in sentencing policy.  Curfews have

to be justified under terms of the Bail Act 2000 against an appreciable risk of offending otherwise.  Regrettably, I do not think that that judgment is always made. It would appear that very often curfews are imposed without any thought given as to whether there is a serious risk of offending while on bail.  Often it is simply based on the fact that if the charge which the person faces did occur in the evening that in itself is a justification for a curfew. It very much ought to depend on the particular circumstances of the offender, and, the likelihood of that offender committing an offence similar to that for which the offender is charged, as to the need for a curfew.

[8]      As will be obvious from reasoning so far, I do not think in this case that Mr Claver’s argument should succeed.    I am working on the presumption that the curfew  was  appropriately applied  in  order  to  avoid  offending while  on  bail.    I appreciate that might be a rather generous presumption to make in the light of my earlier comments, but I think it is the appropriate one.   I say it is the appropriate one because  from  time  to  time  we  do  get  appeals  to  the  High  Court  against  the imposition of curfews on the grounds that they are not justified and that is the appropriate course to take if counsel think that a curfew  should not have been imposed in the first case.

[9]      For these reasons the appeal is dismissed.

Solicitors:

S N Claver, Norwood Chambers, Dunedin, for Appellant

Wilkinson Adams, Dunedin, for Respondent