Daly v Department of Corrections

[2019] NZHC 3162

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-454-24

CRI-2019-454-25 [2019] NZHC 3162

BETWEEN

NATHANIEL DALY

Appellant

AND

DEPARTMENT OF CORRECTIONS AND NEW ZEALAND POLICE

Respondents

Hearing:

3 December 2019

Counsel:

P Foster for Appellant

S Poulton for Respondents

Judgment:

3 December 2019

JUDGMENT OF SIMON FRANCE J

[1]        Mr Daly was sentenced to three months’ community detention, nine months’ supervision and 80 hours’ community work on an excess blood alcohol charge, and driving while disqualified. He proved a poor attendee and eventually appeared on a charge of breaching community work. Underlying the charge were numerous occasions of non-attendance.

[2]        It became clear at sentencing the response to the breach would be a different sentence, namely, community detention. Mr Daly accordingly asked that his remaining hours of community work be converted. There were 49.75 hours left.

DALY v DEPARTMENT OF CORRECTIONS AND NZ POLICE [2019] NZHC 3162 [3 December 2019]

[3]        The District Court left in place the existing sentence of supervision, cancelled the community work sentence and imposed a sentence of six months’ community detention.1

[4]        Mr Daly appeals the length of that term, which is on its face the maximum term available. The respondent accepts that for a first breach offence, even including the cancelled community work hours, it is open on appeal to conclude it is a manifestly excessive sentence.

[5]        I agree. The package does not justify anything approaching the maximum sentence. On the basic offending, aspects of the original sentence had already been completed and it is a first breach.

[6]        Counsel were in general agreement as to an appropriate figure. The sentence of six months’ community detention is quashed. In its place I substitute a sentence of six weeks’ community detention. It is to be served as originally provided for – 6 pm to 6 am; on Friday, Saturday and Sunday nights.

[7]        In terms of the record, some correction is needed. As matters presently stand the six-month community detention sentence has been attached to all the sentences. It is unclear to me whether all the original sentence of three months community detention has been served. It should be. Accordingly:

-   on the original two driving offences, I quash the community work sentence and otherwise leave them as they originally were – nine months’ supervision and three months’ community detention, both sentences concurrent;

-   on the breach of community work charge, I impose a cumulative sentence of six weeks’ community detention.

Simon France J

Solicitors:

Peter Foster, Levin for Appellant

Crown Solicitor’s Office, Palmerston North for Respondents

1      New Zealand Police v Daly [2019] NZDC 22944. The three months’ community detention sentence had been served.