B v Police HC Dunedin CRI 2005-412-42

[2005] NZHC 13

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2005-412-000042

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 September 2005

Appearances: S A Saunderson-Warner for Appellant

W J Wright for Respondent

Judgment:      5 September 2005

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

[1]         B       appeals  against  sentences  imposed  on  him  in  the Dunedin District Court on one charge of burglary of commercial premises and two charges of theft.  On the burglary he was sentenced to 12 months imprisonment, and on the two charges of theft the Judge sentenced him to four months imprisonment concurrent.

[2]      The problem in relation to the theft sentences has been brought to the Court’s attention by Mr Wright appearing for the Crown.  Although a four month concurrent sentence was imposed and makes no difference to the ultimate sentence to be served,

the reality is that the maximum penalty is one of three months imprisonment.

B  V POLICE HC DUN CRI 2005-412-000042  5 September 2005

[3]      The sentences on the theft charges are quashed and substituted with sentences of one month’s imprisonment concurrent.

[4]      In the relation to the burglary Ms Saunderson-Warner responsibly accepts that it is difficult to argue a sentence of 12 months imprisonment, given this man’s record, is manifestly excessive.

[5]      The problem confronting the Court was that this man suffered  a serious motor accident on 31 January 2003.  There was a report from Psychology Associates on file which outlined the effect that has had on this man and recommends further tests and treatment.   That effectively has been denied because the Judge declined leave to apply for home detention.

[6]      Again the Crown responsibly accepts, given this man’s condition, it is a factor that should be fully investigated and the appropriate body to do that is the Parole Board on an application for home detention.   Clearly such matters, in the criminal context, can not be dealt with by consent but the Crown have adopted a pragmatic approach to this.

[7]      The appeal is allowed to the extent that the Appellant is granted leave to apply for home detention so that the Parole Board can fully investigate the condition this man is in following the accident and a possible treatment regime.

[8]      The only point, that would have been self-evident, and leaves me with some sympathy for the learned District Court Judge, is that this man was offending on a regular basis long before the head injury he suffered in 2003.

Solicitors:

Aspinall Joel Radford Bowler, Dunedin for Appellant

Wilkinson Adams, Dunedin for Respondent

CC:

Judge Spear