Cullen v R HC Rotorua CRI 2008-070-2188

[2010] NZHC 191

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2008-070-002188

BETWEEN  C

Applicant

ANDTHE QUEEN Respondent

Hearing:         4 March 2010

Appearances: J P Temm for Applicant

T Bayley for Respondent

Judgment:      4 March 2010

Reasons:        5 March 2010

REASONS FOR JUDGMENT OF VENNING J

This judgment was delivered by me on 5 March 2010 at 9.30 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Tauranga

M S Lake, Rotorua

Copy to:            J P Temm, Rotorua

C V R HC ROT CRI-2008-070-002188  4 March 2010

Introduction

[1]      The  applicant,  C  ,  applied  for  an  order  cancelling  the sentence of home detention pursuant to s 80F of the Sentencing Act 2002.

[2]      After hearing from counsel I declined the application with reasons to follow. These are the reasons.

Background

[3]      On 23 April 2008, having pleaded guilty to one count of being an accessory after the fact of murder, the applicant was sentenced to 12 months’ home detention with post detention conditions to inure for six months.

[4]      The applicant had been present when an associate had killed the victim.  The applicant had then assisted his associate to dispose of the body.  Taking account of the circumstances of the offending, and particularly the reasons for the applicant’s involvement in the offending the Judge took a start point of three years’ imprisonment.   Then having regard to the guilty plea and other factors in the applicant’s favour, including the offer of assistance to the police the Judge ultimately concluded that a term of imprisonment of one year two months was warranted. However, he accepted the submission for the applicant that a sentence of home detention would satisfy the goals of the Sentencing Act but considered that a maximum term  of  home detention  was  required  to  mark  the  seriousness  of  the offending.   For that reason the Judge imposed a sentence of 12 months’ home detention.

[5]      On the application of Mr C  , the sentence was deferred until after his associate’s preliminary hearing was to take place.

[6]      Subsequently, and before the period of deferment expired, the applicant filed an application on 22 May 2008 seeking to vary the order for home detention by proposing an alternative residence.   Regrettably the matter drifted until 25 March

2009 when Lang J directed that the Probation Service provide the Court with a report in  relation  to  the  suitability of  the  alternative  residence  at  which  the  applicant proposed he would serve his home detention sentence.

[7]      On 7 May 2009, after a report from the Probation Service which confirmed the suitability of the residence, Stevens J issued an order varying the address at which the applicant was to serve his home detention and directed the applicant immediately commence his sentence.

[8]      The applicant has complied with the order of the Court and is serving his sentence of home detention at the approved address.

The application

[9]      By application dated 9 December 2009 the applicant seeks to cancel the sentence of home detention.  As Mr Temm pointed out, the sentence now only has two months to run.

[10]     Mr Temm submitted the application was advanced on the ground that, having regard to the change in circumstances since the sentence was imposed, the continuation of the sentence was no longer necessary in the interests of the community or the offender.

[11]     The change of circumstances relied on was the delay in the implementation of the sentence of home detention and the consequent or associated deterioration in the applicant’s state of health.

Decision

[12]   The issue on this application is whether there has been a change in circumstances since sentence was imposed, such that the continuation of the sentence

is  no  longer  necessary  in  the  interests  of  the  community  or  the  offender:

s 80F(1)(d)(ii).

[13]     For that ground to be made out the change in circumstances must be such that the continuation of the sentence is no longer necessary in the interests of either the community or the offender.  In other words, the interests of both the community or the offender must be addressed.  If the interests of the community still require the sentence to be served then the ground is not established.

[14]     The interests of the community are no different now than they were when the

Judge imposed the sentence in the first place.

[15]     But in any event the application is not made out even having regard to the applicant’s interests.  The premise underlying the application is that the applicant’s health is such that it is unnecessary for the sentence to continue.

[16]     Mr Temm submitted that the hiatus that had taken place before the sentence was given effect to in May 2009 had exacerbated a deterioration in the applicant’s health.   The evidence to support that submission is limited.   Counsel has attached correspondence from psychological services and a respiratory therapist who have provided medical attention to the applicant.  No formal evidence is before the Court.

[17]     The report from psychological services dated 2 September 2009 records that the applicant presented with depression.  The context of the problem was said to be:

Craig presented with symptoms of depression related to his home situation/home detention.  What has exacerbated his struggles has been the stigma around home detention as well as memories of his ordeal.   He has also experienced wide-spread rejection on the part of his friends and family. He has two adult daughters as well as two adult stepdaughters.   None of them including his wife have anything to do with him now.  His wife is now in Indonesia.  What also adds to his feelings of being stigmatized is that he wears an ankle bracelet with a tracking device on it to keep monitoring whereabouts.

Craig has another nine months of time to serve.  However, he feels that his life is currently on hold.  Rather than enjoying relative freedom, he says he feels more alone being in home detention than he might if he had been in jail amongst other people experiencing similar hardships and stigmatization.

The report noted the applicant was at a mild risk of suicide and mild risk of self harm.

[18]     There is then a report from a breathing therapist following a presentation on

12 October 2009.  The therapist noted the applicant had a resting pulse and resting breathing rate in excess of the normal range.  The therapist’s report recorded that the applicant said he had experienced prolonged periods of light headedness, headaches, numbness and tingling in hands and feet and psychological disturbances including anxiety, depression, fear without reason and at times felt unable to cope with even minor stressful situations.  The report also noted that the applicant had been recently admitted to hospital with a suspected cardiac problem and the event appeared to have been a severe hyperventilation attack.  The report concluded:

These symptoms are indicative of a severe chronic hyperventilation state which may date back to 1995 but has been exacerbated by Craig’s current circumstances.   The symptoms are almost continuous and left unchecked may proceed to more serious medical problems.

The treatment recommended four treatment sessions at a breathing clinic and counselling.

[19]     A follow-up report of psychological services on 6 November 2009 recorded that there had been a significant improvement following therapy and the applicant was  discharged  and  referred  back  to  his  general  practitioner.    The  discharge summary recorded:

[The applicant] attended all of his funded sessions regularly and took the process seriously.  At the time of the discharge he reported that his mood had lifted significantly.   He is still facing home detention and as such was struggling  with  issues  that  this  presented  to  him.    He  has  engaged  the services of a lawyer to help him with having his sentence reduced.  I have been given consent by him to furnish the lawyer with a copy of my report.

[20]     There has been no further update since the November report.  That last report suggested an improvement in his condition.

[21]     On the basis of the information before the Court it cannot be said that the applicant’s health or medical condition is such that he is unable to comply with detention conditions:   s 80(1)(a).   In his written submissions Mr Temm submitted

that the applicant’s state of health was such that from time to time he required urgent medical attention which meant he was unable to comply with home detention conditions.  But that matter is covered expressly by s 80C(3)(a).

[22]     The most recent medical report before the Court, the report of November

2009, suggests that following counselling there has been an improvement in the applicant’s condition.  No doubt the applicant finds the sentence of home detention hard to cope with but, with respect, so do a number of people serving a sentence of home detention or other sentences of the Court.

[23]     As the sentencing Judge noted, this was a serious offence calling for the imposition of a term of 12 months home detention.  No issue was taken with that assessment of the 12 months sentence itself.  A number of the issues the applicant faces rise out of his involvement in the offending.  The fact he provided assistance to the police was a factor taken into account in imposing the original sentence. While there was a delay in implementing the sentence that was at the applicant’s request. While the Crown may have gone along with it, the sentence was not given effect to earlier at the request of the applicant.

[24]     There  has  been  no,  or  no  sufficient  change  in  circumstances  since  the sentence was imposed so that the sentence is no longer necessary.  The application is really advanced on the basis the applicant is experiencing some difficulty in serving the sentence and that, as he has served 10 months, he should be discharged from the requirement to serve the balance of the sentence.  It cannot be in the interest of the community for the Court to sanction such an approach.

Result

[25]     The grounds for cancellation are not made out.  The application is dismissed. The applicant is to serve the remainder of his home detention sentence.

Venning J