Baker v Police - [2014] NZHC 2194

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-000012 [2014] NZHC 2194

JAMES FREDERICK BAKER

v

NEW ZEALAND POLICE

Hearing
(viaAVL):

9 September 2014

Counsel:

R Gould for Appellant
S O'Donoghue and N McKessar for Respondent

Judgment:

10 September 2014

JUDGMENT OF WILLIAMS J

[1] Mr Baker, 26, pleaded guilty to one charge of breaching a community work sentence, contrary to s 71(1)(a) of the Sentencing Act 2002.1 On 25 August 2014, he was sentenced to two months’ imprisonment by Judge Zohrab.2

[2] He now appeals that sentence on the grounds a sentence of imprisonment was not justified, and even if it was, a two month term was manifestly excessive.

Background

[3] On 3 March 2014 Mr Baker was sentenced to 300 hours’ community work

for driving while disqualified, third or subsequent. The matter was reheard on 5 May

2014, but the original 300 hours remains. Mr Baker signed a form acknowledging

1 The penalty imposed by s 71(1) is a term of imprisonment not exceeding three months or a fine not exceeding $1,000.
2 Department of Corrections v Baker DC Blenheim CRI-2014-006-000621, 25 August 2014.

BAKER v NEW ZEALAND POLICE [2014] NZHC 2194 [10 September 2014]

his understanding of the requirements and obligations of the sentence, including the consequences of non-compliance.

[4] On 26 June 2014 he failed to report to the probation officer for his community work duties. At that time he had completed 58.5 of the 300 hours. At the date of sentencing, that had increased to 71.5, leaving 228.5 hours outstanding.

[5] This is Mr Baker’s fifth conviction for breach of community work, his most

recent conviction being entered on 5 December 2011. There were two convictions in

2010 and another in 2008.

Judge Zohrab’s decision

[6] The information before the Judge Zohrab included a pre-sentence report recommending a term of imprisonment. The Judge also had a note from the probation officer indicating that Mr Baker last reported for community work on
10 July 2014.

[7] Judge Zohrab noted Mr Baker’s “history of contempt for Court orders”, including previous convictions of driving whilst disqualified, breaching supervision and breaching community detention on top of his convictions for breaching community work.

[8] The Judge said:

[4] The aims and objectives of sentencing in a case such as this have to be to encourage you to do your community work but also to send out the message to others that it is a sentence to be taken seriously. It is the main sentence imposed by this Court and when people fail to turn up to do their community work, it can have an unsettling effect on others because they wonder why they should bother turning up on a weekly basis, more especially when they see people who do not turn up and then nothing much happens to them. So, people who continually breach the sentence of community work have an unsettling effect on other people and it causes them to breach their sentence of community work.

[5] Given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Police

Details

AGLC: Baker v Police [2014] NZHC 2194
Case: [2014] NZHC 2194
Decision Date: 10 September 2014

CaseChat Overview and Summary

The High Court of New Zealand was asked to review the sentence handed down by Judge Zohrab to James Frederick Baker, who pleaded guilty to breaching a community work sentence. The case was heard via audio-visual link on 9 September 2014, and the judgment was delivered by Williams J on 10 September 2014. The legal issues before the court were whether the sentence of imprisonment was justified and whether the two-month term was manifestly excessive. The court considered the discretion exercised by the District Court in imposing the sentence and whether the sentence was appropriate in the circumstances. The court found that the Judge had erred in excluding home detention as a sentencing option and that the starting point of a three-month imprisonment sentence was excessive. The court substituted a sentence of one month imprisonment, effectively time served.

The court acknowledged that the appellant had a history of non-compliance with community work sentences, but also noted that he had not had a conviction for breaching community work since 2011. The court found that the Judge had not taken into account the appellant's family situation, particularly the fact that his partner was unwell and had two babies under the age of one year. The court also found that the Judge had been misinformed about an altercation at the proposed home detention address, which had led to the exclusion of home detention as a sentencing option. The court found that the sentence of imprisonment was available to the Judge, but that the starting point of three months was excessive and that the two-month term was manifestly excessive. The court substituted a sentence of one month imprisonment, effectively time served.

Orders