Beatty v Police

[2020] NZHC 3026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-407

[2020] NZHC 3026

UNDER

The Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

TONY BEATTY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 November 2020
Appearances:	A Comeskey for the Appellant B Archibald for the Respondent
Judgment:	16 November 2020

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:

Mr A Comeskey, Barrister, Auckland

Ms B Archibald and Ms E Kerr, Meredith Connell, Office of the Crown Solicitor, Auckland

BEATTY v POLICE [2020] NZHC 3026 [16 November 2020]

[1]                 Mr Beatty was convicted of indecent assault following a Judge alone trial in the District Court on 30 April 2019.1

[2]                 He had approached the victim – who was unknown to him – in a charity shop and pulled her into a close hug. Mr Beatty then repeatedly asked her to “come close to [him] with [her] front” and groped the victim’s breast. After he let the victim go, he told her she had beautiful hair, jangled his car keys at her and offered her a lift.

[3]At the time of the offending, Mr Beatty was 63 years old.

[4]                 On 27 August 2020 Mr Beatty was sentenced to 12 months’ imprisonment.2 Judge L Tremewan in the District Court declined to grant Mr Beatty leave to apply for his sentence to be commuted to a sentence of home detention pursuant to s 80I of the Sentencing Act 2002.

[5]                 On 2 November 2020, Paul Davison J heard Mr Beatty’s appeal against sentence.3 Davison J granted leave for new evidence to be adduced on appeal. That evidence discussed Mr Beatty’s medical conditions, including some of his cognitive difficulties following a stroke. In addition, Mr Beatty has mental health issues which require ongoing treatment. Ultimately, Davison J considered the appellant’s limited criminal history, supportive family, medical needs (which were not canvassed in any detail before the District Court Judge) and his compliance with bail meant that a sentence of home detention was the least restrictive sentence available in the circumstances.

[6]Davison J made the following orders:

[38]      The appeal is allowed, and pursuant to s 80I of the Sentencing Act 2002 I make an order granting the appellant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.

[39]      I direct the Registrar to request the Department of Corrections to prepare a report regarding the suitability of the appellant’s residence in

1      Police v Beatty [2019] NZDC 14146.

2      Police v Beatty [2019] NZDC 17323.

3      Beatty v Police [2020] NZHC 2894.

Henderson for the purposes of him serving a sentence of home detention at that address.

[40]      I further direct the registrar to list this appeal for a disposition hearing at 3.45 pm on 16 November 2020, by which date the Department of Corrections suitability report regarding the appellant’s address is expected to be available and, subject to the report confirming the suitability of those premises, an order can be made substituting a sentence of home detention for the sentence of imprisonment imposed by the District Court.

[7]                 The Department of Corrections’ suitability report dated 13 November 2020  is now available. Mr Beatty told the report-writer he was adamant he would be able to adhere to a sentence of home detention.   His wife and son have consented to     Mr Beatty residing at the address and are eager to support him. The property is technically suitable for electronic monitoring.

[8]                 In these circumstances, counsel agree and I also consider that Mr Beatty should have his sentence of imprisonment substituted by one of home detention.

[9]                 Although I understand the usual practice when leave is granted under s 80I is for the application to be made in the District Court,4 here Davison J has directed the Registrar to list the appeal for a disposition hearing for this Court, subject to the further report from Corrections confirming the suitability of the premises, to substitute the sentence. The parties agree that in those circumstances, it would not be in the interests of justice to defer substituting the sentence further by requiring Mr Beatty to make an application in the District Court given that he has already spent nearly three months in prison. Counsel agree that in substance I should characterise the case as having been adjourned by Davison J pending the report as to suitability of the address. I agree with that approach, which obviates the need for the matter to be dealt with in the District Court, in the unusual circumstances of this case.5 That is consistent with the direction at paragraph [40] of Davison J’s decision.

4      See, for example, Barbour v Police [2020] NZHC 2707 at [28]; Law v Police [2020] NZHC 717 at [37]; and Papa v Police [2019] NZHC 1309 at [11].

5      Toogood J in Larkin v Ministry of Social Development [2015] NZHC 680 at [29] observed the lack of guidance in s 80I concerning when a hearing should be adjourned to allow a suitability report or whether leave to apply for substitution should be granted instead. Toogood J noted that in Police v Tiatia HC Auckland CRI-2010-404-305, 8 April 2011 at [43], adjournment or the granting of leave under s 80I were described as alternatives.

[10]              Taking into account the unserved portion of the sentence of imprisonment (nine months), a sentence of four-and-a-half months’ home detention is appropriate.

Result

[11]              The appeal is allowed, the sentence of imprisonment is cancelled and a sentence of four-and-a-half months’ home detention is imposed on the conditions stated in Corrections’ 13 November 2020 report.

Gault J