Byrne v Police HC Auckland CRI-2009-044-9940

[2011] NZHC 353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-9940

CRI-2009-044-9643

BETWEEN  CHRISTOPHER LEE BYRNE Applicant

ANDNEW ZEALAND POLICE Respondent

Appearances: P Stokes for the Applicant

M Walker for the Respondent

Judgment:      8 February 2011

ORAL JUDGMENT OF PRIESTLEY J (Sentence Review: Cancellation of Home Detention)

Counsel:

P Stokes, Email: [email protected]

M Walker, Email: [email protected]

BYRNE V NEW ZEALAND POLICE HC AK CRI-2009-044-9940 8 February 2011

[1]      This is a knife edge application.

[2]      On 13 August 2010, the prisoner appeared for sentence before Venning J. The charges related to cannabis, snaplock bags, and a small amount of cash found on premises, coupled with subsequent drug offending whilst the prisoner was on bail.

[3]      The prisoner was then 22, living with his grandparents and in a relationship of approximately two years with his partner.  A young daughter was born in June.

[4]      Venning J, for his part, described his sentencing as being on a knife edge as well.  The end sentence he would have reached was one of 21 months imprisonment. Instead he imposed, it being a short sentence, a sentence of 11 months home detention.

[5]      Stupidly, as he acknowledges in an affidavit, the prisoner fell out with his grandfather, to whose home he was sent for home detention purposes.   In early January,  after  a  mild  altercation  with  his  grandfather  as  to  whether  or  not  the prisoner should go to bed, he cut off his bracelet and absconded.  He remained away for some four or five days.

[6]      The background to all this appears in a minute of Potter J on 21 January, which was the first call of the Probation Service’s application to cancel the home detention sentence.   Potter J made it very clear that, in the absence of a suitable address, the application was likely to be successful.

[7]      In the intervening two weeks it has been ascertained that the grandfather’s address is no longer suitable because the grandfather does not want to have the prisoner living there.

[8]      An alternative address, however, has been found which is technically suitable for  home  detention  purposes.    That  is  the  address  of  the  prisoner’s  partner, Ms L Nurati, being 52B Doment Crescent, Orewa.

[9]      The   updated   report   obtained   from   the   Probation   Service,   on   which Mr Walker strenuously relies, states that the grandfather’s address (50 Moffat Road, Red Beach) is unsuitable given the grandfather’s concerns.

[10]     Two grounds are advanced for the unsuitability of the new proposed address. The first of these is that there has been no confirmation from the landlord of the property that he/she is prepared to vary the tenancy agreement.  It is common ground between counsel that the landlord now has no objection.

[11]     The  second  ground  is  clearly  related  to  the  grandfather’s  perception  of Ms Nurati.  The grandfather, Mr V Byrne, told the Probation Service that he regards the prisoner as being very controlling of his partner.  Ms Nurati disputes this.  I have had a brief discussion with her in Court today with the consent of both counsel.  The second  ground advanced by the Probation Service is the sole  ground on which Mr Walker now relies.

[12]     An added complication is, apparently, that as a result of him absconding from home detention, the prisoner has lost his place in the MIRP Programme.

[13]     In  normal  circumstances,  with  anyone sentenced  to  home detention  who absconds,  imprisonment  would  result.    In  this  particular  case,  however,  I  lean towards re-admitting the prisoner to his breached sentence.

[14]     One of the concerns I have about this, however, is the prisoner’s previous list of convictions which clearly include breaches  of Court-imposed orders, such as driving whilst disqualified, and breach of supervision conditions and community work.

[15]     Mr Walker’s submission is that, were the prisoner to be resentenced, the appropriate term to impose, given that he has served 4 months and 20 days of home detention, would be one of approximately 12 months imprisonment.  This computes, in counsel’s submission, as an appropriate adjustment to the 21 month short term, which would otherwise have been imposed.

[16]     The prisoner has filed a full affidavit in which he acknowledges his stupidity. As Venning J observed, home detention sentences are not easy to serve.  I find no basis for concluding that, were the prisoner to be residing with his partner and his daughter, this would be an unsupportive environment.   If anything, such an environment might underline to the prisoner his domestic responsibilities and the importance of him turning his life around.

[17]     In the circumstances, and by a very small margin, I have decided to dismiss the application.  The prisoner, who is still to be sentenced in the District Court for his home detention breach (my normal reaction, had I had jurisdiction, would have been to add a month or two to the 11 months) is to be readmitted to the home detention regime to serve out the balance of his sentence.

[18]     Accordingly, the prisoner is to proceed from here to the new address at

52B Doment Crescent, Orewa.  He is to wait inside that dwelling for the arrival of his probation officer and a security officer.  The other conditions imposed, including the MIRP Programme, are reconfirmed.

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Priestley J