B v Police HC Rotorua CRI 2009-463-46

[2009] NZHC 1894

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-46

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 June 2009

Counsel:         R Vigor-Brown for Appellant

M Wright for Respondent

Judgment:      30 June 2009

(ORAL) JUDGMENT OF HEATH J

Solicitor:

Crown Solicitor, Rotorua
Counsel:

R Vigor-Brown, Rotorua

B V NEW ZEALAND POLICE HC ROT CRI 2009-463-46  30 June 2009

[1]      Mr B   appeared for sentence before Judge Weir, in the District Court at

Rotorua, on a number of charges covering a period between 24 December 2007 and

20 November 2008.

[2]      In the period leading up to sentence, Mr B   had been incarcerated on two occasions.  The first, in or about November 2008, was, he accepts, due to his own breach of bail.   The second was a remand on a particular charge, leaving him in custody between  1  March  and  11  May 2009,  the  latter  date  being  the  date  of sentence.

[3]      Judge Weir imposed a sentence of 100 hours community work coupled with four months home detention.  Mr B   appeals against that sentence.

[4]      In written submissions in support of the appeal prepared before the Judge’s sentencing notes were available, Mr Vigor-Brown, for Mr B  , submitted that the Judge had failed to take into account the time in custody.  Mr Vigor-Brown had not appeared on sentence in the District Court.

[5]      Mr Vigor-Brown accepts that it is clear from the Judge’s sentencing remarks that the period in custody was taken into account.  So, there is no basis to interfere with the sentence for that reason.

[6]      Mr B  ’ second complaint is that the sentence of home detention does not enable him to explore the possibility of undertaking contract work of the type he undertook prior to his original incarceration.   Mr Vigor-Brown submitted that the appropriate sentence was one of community detention which would allow such work to be undertaken.  A problem, from an appeal point of view, is that this option was never put to the sentencing Judge for consideration.

[7]      The period of four months home detention is one with which this Court would only tinker if, in fact, the appeal were allowed on the basis that the sentence was  inappropriate.    I am  satisfied  that  the sentence imposed  was  within  range, particularly given the nature and extent of some of the offending in issue.

[8]      A probation officer has made an application to vary Mr B  ’ sentence of home detention so that an alternative address can be approved.  That application will be heard in the District Court tomorrow.

[9]      I have indicated to Mr Vigor-Brown that the most appropriate step that could be taken on behalf of Mr B   would be to apply contemporaneously for an order cancelling the sentence of home detention and substitute community detention in its place, assuming jurisdiction to do so exists; a point I have not considered.

[10]     Whether  such  an  application  would  be  successful  would  depend  upon evidence from Mr B   and any response from a probation officer.  However, the issue is one for the sentencing Court to consider and is not one that can properly be raised on appeal.

[11]     For those reasons, the appeal against sentence is dismissed.

P R Heath J