Condon v Department of Corrections HC Wanganui CRI 2010-483-68

[2010] NZHC 1927

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-68

TIANA CONDON

v

DEPARTMENT OF CORRECTIONS

Hearing:         27 October 2010

Appearances: Mr Leith for the appellant

Ms Woodcock for the respondent

Judgment:      2 November 2010         at 12.15 pm

JUDGMENT OF MALLON J

Introduction

[1]      The issue on this appeal is whether the effect of a sentence of imprisonment is to cancel an uncompleted home detention sentence, when the offender ceases to be detained under the imprisonment sentence.  The answer depends on how the relevant provisions of the Sentencing Act 2002 are to be interpreted.

[2]      The context is that   Ms Condon was sentenced of to seven months’ home detention,  180  hours’  community work  and  was  disqualified  from  driving on  a conviction  for  driving  with  excess  breath  alcohol  (her  fourth  such  conviction).

Approximately six weeks into the home detention sentence she was sentenced to one

CONDON V DEPARTMENT OF CORRECTIONS HC WANG CRI-2010-483-68  2 November 2010

month’s imprisonment for breaching a condition of her home detention by being found at the home detention address in a highly intoxicated state.

[3]      On her release from imprisonment she was refitted with an electronic ankle bracelet so as to complete her home detention sentence for the excess breath alcohol conviction.  Four weeks later she failed to attend community work as directed, for which she was charged with a breach of the conditions of home detention and a breach of community work.   The next day she again failed to report for the community work and for this she was charged with a further breach of community work.   Two weeks later she associated with a person with whom she was not to associate pursuant to the home detention conditions.  For this she was charged with a further breach of the conditions of home detention.

[4]      Ms Condon pleaded guilty to the two charges of breaching community work. She was remanded on bail for sentencing on these charges later this month.   She pleaded not guilty to the two charges of breaching her home detention conditions, relying on a legal submission that following the imprisonment sentence she was no longer subject to the home detention sentence.

[5]     The District Court Judge ruled that under the relevant provisons of the Sentencing Act the home detention sentence was not cancelled because of the imprisonment sentence.  He entered convictions on the two charges of breaching the home detention conditions but discharged her without further penalty.  He noted that his ruling might be subject to challenge, that the convictions would  enable Ms Condon to appeal his ruling and that he looked forward to resolution of the issue by a higher court.  Before me is the appeal from the Judge’s ruling.

The statutory provisions

[6]      The starting point is s 4(2)(ab) of the Sentencing Act.   It provides that “an offender is subject to a sentence of home detention from the date the sentence commences... until the sentence ends in accordance with section 80Z, except when the sentence is suspended under section 80ZG(2)”.

[7]      Section 80Z provides for a sentence of home detention to end as follows:

(1)      An offender ceases to be subject to a sentence of home detention when—

(a)       the offender reaches his or her detention end date; or

(b)      a court cancels the sentence of home detention.

Offender reaches the detention end date

[8]      The “detention end date” is defined in s 4(1) as meaning “the date on which an offender who is subject to a sentence of home detention ceases to be subject to detention conditions”.

[9]      Detention conditions are defined in s 4(1) as meaning the standard conditions in s 80C and any special conditions imposed under s 80D.  Section 80C(1) provides that an offender “who is serving a sentence of home detention is subject to detention conditions” comprising the standard conditions set out in s 80C and any special conditions imposed under s 80D.

[10]     Section 80N sets out when the conditions expire, and in respect of a home detention sentence that is for more than 6 months the maximum period for the conditions is 12 months from the detention end date.[1]   Section 80ZA provides that detention conditions “of an offender serving a sentence of home detention are suspended during any period that the offender spends in custody under a court order (for example, on remand), but time continues to run during any period that they are

suspended”.

Court cancels home detention

[1] Detention end date here seems to refer to the term of the home detention sentence rather than as defined in s 4(1).

[11]     Section 80F(1) provides that an offender “who is subject to a sentence of home detention” or a probation officer may apply to the Court for an order under s

80F(4).   The grounds on which that application may be made include where an offender has failed to comply with any detention conditions (s 80F4(1)(a)).  Section

80F(2) provides that a probation officer may apply for an order under s 80F(4) “if an offender, who is subject to a sentence of home detention, is convicted of an offence punishable by imprisonment”.  Any such application may be made at any time before or  after  the  sentence  commences  (s  80F(5))  but,  as  provided  by  s 80F(1)  and s 80F(2), the offender needs to be subject to a sentence of home detention when the application is made.

[12]     The orders available under s 80F(4) include an order that the Court “cancel the sentence”(s 80F(4)(c)) or that the Court “cancel the sentence and substitute any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed”.

[13]     Section  80G(1)  provides  that  if  the  Court  cancels  the  sentence  of  home detention it may at the same time cancel any sentence of community work that the offender  is  serving  concurrently with  the  sentence  of  home  detention.    Section

80G(4) provides that, if the Court cancels the sentence of home detention, the sentence expires on the date that the order is made or on any other date that the Court may specify.

Where the sentence is suspended under s 80ZG

[14]     Section 4(2)(ab) does not specify when the home detention sentence ends if the sentence is suspended under s 80ZG.  It provides that an offender is subject to a sentence of home detention until the sentence ends in accordance with s 80Z, except when it is suspended under s 80ZG.   It is therefore necessary to consider what happens where a sentence is suspended under that section.

[15]     Section 80ZG provides:

(1)      This section applies if an offender who is subject to a sentence of home detention is subsequently sentenced to a term of imprisonment.

(2)      If this section applies, the sentence of home detention is suspended until the earlier of the following events—

(a)       it resumes under subsection (4)(b); or

(b)       it is cancelled under subsection (6).

...

(4)       If the sentence or sentences of imprisonment are quashed and that results in the offender no longer being detained under a sentence of imprisonment,—

(a)the offender must report to a probation officer as soon as practicable and not later than 72 hours after being released from detention; and

(b)the  sentence  of  home  detention  resumes  when  the  offender  has reported as required under paragraph (a).

...

(6)       If the sentence of home detention never resumes under subsection (4)(b), it is cancelled when the offender ceases to be detained under the sentence of imprisonment.

[16]     Thus s 80ZG applies if an offender who is subject to a sentence of home detention is subsequently sentenced to a term of imprisonment.  If that happens then the home detention sentence is suspended.  In that event the suspension applies until the earlier of the two events set out in s 80ZG(2).  One of those two events occurs if the subsequent sentence of imprisonment has been quashed.  If that happens then the home detention sentence resumes when the offender reports to the probation officer as  required  by s  80ZG(4)(a).    If  that  does  not  occur,  then  the  home  detention sentence is cancelled when the offender ceases to be detained under the sentence of imprisonment.

Is there a conflict between s 80Z and s 80ZG?

[17]     The District Court Judge took the view that there was a conflict between ss 80Z and 80ZG.  This conflict was thought to arise because, if s 80ZG(6) applied, then the sentence was cancelled by operation of law, whereas s 80Z provided only for  a  home  detention  sentence  to  end  when  the  offender  has  reached  the  end detention date or the court has cancelled the sentence.  The Judge’s view was that, despite the words of s 80ZG, the offender was still subject to the sentence of home detention because the court had not cancelled it.

[18]     On appeal both counsel were of the view that the Judge’s conclusion was wrong.  Counsel for Ms Condon submitted that there was no conflict between the two  sections.    This  was  on  the  basis  that  when  a  sentence  of  imprisonment  is imposed, the offender ceases to be subject to detention conditions and has thereby reached the detention end date of the home detention sentence as defined in s 4(1).  It was submitted that this meant that the offender had “reach[ed] his or her detention end date” under s 80Z(1)(a).

[19]     Counsel  for  Ms  Condon  did  not  refer  to  any  section  providing  that  the conditions of a home detention sentence are cancelled when a sentence of imprisonment is imposed.   Given that the home detention sentence to which the conditions attach is merely suspended, it seems more likely that the conditions too are  suspended.    That  would  be  consistent  with s  80ZA  which  provides  for  the suspension  of  home  detention  conditions  during  any period  that  a  person  is  in custody under a court order when a person is serving a sentence of home detention. (I am doubtful that a person can be said to be “serving” a sentence of home detention when the sentence has been suspended but this does not need to be resolved for present purposes.)  It would also mean that the “detention end date” would occur at the time the sentence of imprisonment was passed, which would render s 80ZG (providing for suspension of home detention, when a sentence of imprisonment is imposed, and its subsequent resumption or cancellation) superfluous.

[20]     However, I do agree that that the Judge’s approach was in error.  It ignored the clear words of s 80ZG(6), and effectively applied s 80Z as though s 80ZG(6) did not exist.  I also agree with counsel that there is no conflict between the two sections although my reasons differ a little.

[21]     The conflict between the two sections was thought to arise because s 80Z was viewed as providing the only two ways that a home detention sentence could come to an end.   If that is so, s 80ZG(6) is not inconsistent with s 80Z because a home detention sentence that is cancelled by operation of s 80ZG(6) will have the effect of bringing forward the detention end date.   That is because once a home detention sentence is cancelled the offender can no longer be said to be “serving a sentence of home detention”.   Once that is the position the person is no longer subject to the

standard conditions and any special conditions imposed (because under s 80C they are subject to them when “serving” the home detention sentence).   If they are no longer subject to detention conditions then, under s 4(1) they have reached the detention end date.  On this approach the home detention sentence has ended under s

80Z(1)(a) (and there is no need to seek to interpret s 80Z(1)(b) consistently with s 80ZG(6)).

[22]     The issue can also be approached in another way.  It is not necessary to read s

80Z as providing the only two ways that a home detention sentence comes to an end. Section 80Z does not expressly say that.   The effect of a subsequent sentence of imprisonment on a sentence of home detention is expressly dealt with under s 80ZG. It is therefore necessary to consider what happens to the home detention sentence under that section.  This is consistent with s 4(2)(ab) which provides that a person is subject to a sentence of home detention from when it commences until it ends under s 80Z “except when the sentence is suspended under section 80ZG”.

[23]     If  the  sentence  is  suspended  and  then  s  80ZG(6)  applies  (as  here),  the sentence is cancelled (and there can be no conditions attaching to a cancelled sentence) and there is no need to refer back to s 80Z.  If the sentence is suspended and then resumes under s 80ZG(4)(b) then the person will still be subject to a sentence of home detention.  In that event it will come to an end in either of the two ways in s 80Z (unless it is further suspended under s 80ZG because a further subsequent sentence of imprisonment is imposed).

[24]     The  result  is  that  there  are  effectively  three  ways  a  sentence  of  home detention can come to an end: either of the two ways provided for in s 80Z or by operation of s 80ZG(6).  The third way (by operation of s 80ZG(6)) will also mean that the offender has reached his or her detention end date as defined so that the sentence has also ended under s 80Z(1)(a).

Does this interpretation leave an unintended gap?

[25]     Counsel for the respondent agrees that ss 80Z and 80ZG can be read together and are not inconsistent with each other.  She submits, however, that the ordinary,

literal  meaning  of  the  two  sections  in  the  present  circumstances  results  in Ms Condon not having to serve all of the penalty imposed on her for the excess breath alcohol offending.  She raises whether the literal meaning is the meaning that Parliament intended, and if not, whether there was some obvious drafting error such that the Court should interpret the words so as to give effect to Parliament’s intent. She advises that because of perceived problems with the provisions proposed amendments are due to go to Cabinet shortly.

[26]     Counsel for the respondent refers to the history of s 80ZG.  She notes that the section was inserted following the recommendation by the Justice and Electoral Committee that similar sections to ss 78,79 and 80 of the Sentencing Act be inserted to apply where an offender serving a sentence of home detention is subsequently sentenced to imprisonment.  Sections 78, 79 and 80 provide for the position where a person who is subject to a “community-based sentence” (ie which includes community work and community detention but not home detention) is subsequently sentenced to a term of imprisonment.

[27]     Sections   78,   79   and   80   distinguish   between   subsequent   terms   of imprisonment of not more than 12 months and subsequent terms of imprisonment of more than 12 months.  In the former the Judge has two options.  One option[2] is that the Judge simply suspend the community based sentence, in which case it either resumes if the imprisonment sentence is quashed or it is cancelled when the offender ceases to be detained under the sentence of imprisonment (ie as per s 80ZG in

relation to suspended home detention sentences).  The alternative option open to the Judge if the imprisonment term is less than 12 months[3] is to order that the sentence be suspended for the duration of the imprisonment term, in which case it resumes when the offender reports to the probation officer as they are required to do after being released from detention.   Where the term of imprisonment is more than 12 months the first of the two options discussed above is the only option.[4]

[2] Section 78(1) and (2)(a), s 80.

[3] Section 78(1), (2)(b) and (5).

[4] Section 78(6) and (7) and s 80.

[28]     The  only  inconsistency  with  the  effect  of  a  subsequent  sentence  of imprisonment on a home detention sentence as compared with the position under ss 78,79 and 80 is in respect of subsequent imprisonment sentences of less than 12 months.  In that scenario, when sentencing an offender who is already subject to a community based sentence, the Judge can impose a “short sharp” imprisonment sentence  for  further  offending  and  still  allow  the community based  sentence to resume after that short sharp sentence.  This option is not available when sentencing an offender who is already subject to a sentence of home detention.  But the absence of this option is consistent with the position under ss 78, 79 and 80  where the sentence of imprisonment is greater than 12 months.

[29]     To the limited extent that there is an “inconsistency” there is no reason to think that it was not intended.  More serious offending that results in a person subject to a community based sentence facing an imprisonment sentence may overwhelm the earlier offending such that the sentence on the subsequent offending is all that should be imposed (consistent with the rationale of “the totality principle” which applies when   a   court   is   considering   whether   to   impose   cumulative   sentences   of

imprisonment).[5]   That may also be the case in relation to subsequent offending by a

person who is subject to a sentence of home detention.

[5] Section 85.

[30]     In the present case, the further offending could not be said to be more serious than the original offending.   The further offending was a breach of a condition of home detention by failing to attend community work.   It was of a kind where the Judge thought a short sharp sentence of imprisonment, followed by a resumption of the home detention sentence, was appropriate.  But that was not an available option under the Sentencing Act.  If the Judge considered that imprisonment was the only appropriate sentencing response to the breach of the home detention conditions then, and as is acknowledged by counsel for the respondent, an application could have been made under s 80F(4).   Had such an application been made, then the Court would have been able to consider whether to substitute the home detention sentence on the excess breath alcohol offending when sentencing Ms Condon on the original breach of her home detention conditions.  There would then have been no “gap” now

in what Ms Condon has served in relation to the EBA offending.  As counsel for the respondent submits it is not clear that Parliament intended any options other than are provided.

[31]     I consider that the words of s 80ZG(6) must be given effect to.  There is no inconsistency  with  its  provisions  and  that  of  s 80Z.    Nor  is  there  any  obvious unintended gap in the available options when a court is dealing with an offender in Ms Condon’s position.  The problem arose here only because the effect on the home detention sentence of imposing the one month sentence of imprisonment appears to have been overlooked by the probation service and the Court at the time the imprisonment sentence was imposed and before the home detention sentence was cancelled by operation of s 80ZG(6).

Result

[32]     All of this means that when Ms Condon ceased to be detained under the sentence of imprisonment, her home detention sentence was cancelled.  Because it was cancelled she was no longer subject to its conditions.  She could not therefore be charged for breaches of conditions that no longer applied.   I therefore agree with counsel for both parties that the two convictions on charges of breaching the home detention conditions, which arose after she ceased to be detained under the imprisonment sentence should be quashed.  I order accordingly.

[33]     It is possible that a similar argument could be made in respect of the breach of community work charges, although no appeal has been lodged.  I mention this for counsels’ consideration in view of the upcoming sentencing on these charges.

[34]     In  light  of  the  result  it  is  unnecessary  that  I  deal  with  an  alternative submission raised on her behalf namely that  Ms Condon should not have been charged with a breach of home detention and a breach of community work for the same event (namely the failure to attend community work).

Mallon J

Solicitors:

R Leith, Wanganui, [email protected]

J M Woodock, Armstrong Barton, Wanganui, [email protected]