Dalton v Police

[2014] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-43 [2014] NZHC 1335

BETWEEN

AARON JAMES DALTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 June 2014
Appearances:	K Gray for Appellant D J Orchard for Respondent
Judgment:	13 June 2014

JUDGMENT OF MANDER J

[1]      The  appellant  seeks  to  appeal  a  sentence  of  9  months  and  3  weeks imprisonment imposed upon him by Judge Neave on four charges of knowingly possessing an objectionable publication in breach of s 131A(1) of the Films, Videos, and Publications Classification Act 1993.

[2]      At the time the appellant was sentenced he was not eligible to be considered for a sentence of home detention.   The proposed address for an electronically monitored sentence was his mother’s.  The only available accommodation however was away from the main house in a metal building which interfered with the electronic monitoring equipment.   There is now a room available to the appellant inside the interior of his mother’s house as a result of a boarder moving out of the residence.

[3]      The initial course taken on behalf of the appellant was to seek an application to  review the sentence  under s 177  of the Criminal  Procedure Act  2011.   That application was declined by Judge Saunders as the District Court has no jurisdiction

to review a sentence imposed in respect of a category 3 offence where the maximum

DALTON v NEW ZEALAND POLICE [2014] NZHC 1335 [13 June 2014]

penalty exceeds 3 years.  As a result, the appellant now seeks to appeal his sentence of imprisonment.  The appeal is now out of time, however the respondent does not oppose an extension of time for the filing of the appeal and no difficulty in that regard arises.

[4]      In the circumstances however a more fundamental difficulty is apparent.  The appellant is unable to identify a basis upon which the appeal could potentially be allowed.  Section 250 of the Criminal Procedure Act 2011 provides as follows:

250     First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[5]      In the absence of the appeal Court being able to identify an error in the sentence it must dismiss the appeal.   No issue is taken by the appellant with the approach adopted by Judge Neave nor to the length of the sentence he imposed in the absence of home detention being an available option at the time of his sentencing.

[6]      Ms Gray on behalf of the appellant invited me to grant leave to the appellant under s 80I of the Sentencing Act 2002 to cancel the sentence of imprisonment and substitute a sentence of home detention.  Where an offender is subject to a short term sentence of imprisonment a Court at first instance can  grant leave to apply for cancellation of a sentence of imprisonment and substitute a sentence of home detention if a suitable residence is found at a later date.  Under s 80K where leave has been granted application can be made to have the sentence of imprisonment substituted with one of home detention.

[7]      The ability to grant leave however only arises at the time that the offender is sentenced and the prerequisites to leave being granted are limited to those that apply at first instance.  Section 80I provides:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)      This section applies if—

(a)       a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)       at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)       At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[8]      The  difficulty  for  the  appellant  is  that  leave  was  not  sought  before  the sentencing Court for an order granting leave. A sentencing Court is required to grant leave where a short term sentence of imprisonment (a sentence of less than 24 months) is imposed and at the time of sentencing the Court would have sentenced the offender to home detention if a suitable residence had been available.

[9]      Ms Gray acknowledged that no application had been made before Judge Neave for leave to be granted and that she could not argue that any error arose from leave having not been granted.   It was apparent to Judge Neave at the time of sentencing why an electronically monitored sentence was not available for consideration, however there is nothing in his sentencing remarks to suggest he would have sentenced the offender to such a sentence if a suitable residence had been available at that time.

[10]     In the absence of any identifiable error in the sentence imposed, either in terms of the sentence of imprisonment or in not granting leave under s 80I the appeal cannot succeed.

[11]     One of the concerns expressed by Ms Gray is that the appellant has not had access to counselling or rehabilitative resource to address the sexualised nature of his offending.   That is regrettable.   Special conditions of his release however include assessment for treatment to address his offending, to participate in any recommended programme, and to attend an assessment with a psychologist to address his offending

and to participate in recommended programmes as directed by the psychologist, probation officer,  and programme provider.    I also note that the special release conditions also prohibit contact with any children 16 years and younger, and that he is not to have possession of any internet capable device without the approval of a probation officer.

[12]     The appellant has served nearly three months of his sentence.  Being a short term sentence, his release date is some two months away.  It therefore follows that he will soon have the benefit of the type of supervision and rehabilitative assistance which may have been more immediately available to him if home detention had been imposed.   In light of the relatively short period of time the appellant has to serve before his release date and the rehabilitative support that it is anticipated will be available to him as part of his release conditions, even had the appeal been able to be advanced, it is unlikely to have resulted in a different outcome.

[13]     An extension of time for filing the appeal is granted, however in the absence

of any identifiable error in the Judge’s sentencing decision the appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch