Department of Corrections v McKay

[2015] NZHC 3269

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-87 [2015] NZHC 3269

IN THE MATTER OF

an application to cancel and substitute

sentence under s 80F(1)(c) Sentencing Act
2002

BETWEEN

THE DEPARTMENT OF CORRECTIONS Applicant

AND

SEAN MCKAY Respondent

Hearing:	17 December 2015
Counsel:	A R Winsley for Applicant P J Knowsley for Respondent
Resentencing:	17 December 2015

RESENTENCING NOTES OF WILLIAMS J

[1]      Mr McKay you pleaded guilty on 29 July 2015 to one count of injuring with intent to injure.  I considered that a sentence of home detention was appropriate in your case and I sentenced you to six months’ home detention accordingly.

[2]      The  Department  of  Corrections  has  applied  to  cancel  your  sentence  and substitute it with a sentence of imprisonment.  In addition, the charge of breach of home detention conditions has been transferred from the District Court to me to be dealt with here today, and you have pleaded guilty to that charge.

[3]      The  Department  says  you  have  failed  more  than  once  to  comply  with conditions of sentence: specifically the condition of attending drug and alcohol counselling as directed by a Probation Officer.  Given that an important element in

your home detention sentence was your need for drug and alcohol rehabilitation,

THE DEPARTMENT OF CORRECTIONS v MCKAY [2015] NZHC 3269 [17 December 2015]

indeed the most significant element in my thinking when I sentenced you to home detention, and I am bound to consider that these breaches are significant.

[4]      I  do  know  now  that  you  accept  the  inevitability  of  a  short  period  of imprisonment must follow but I am going to record how we got to this point for the record.

[5]      It  seems  that  yours  has  been  a  high  maintenance  sentence  from  the perspective of the Department.   According to the affidavit of Ms Gaskin, the Department has serious concerns about whether your home detention sentence, the sentence itself, and the address continue to be suitable:

(a)       There    was    an   incident   at    your   home    detention   address   on

21 November  2015  in  which  you  were  said  to  have  pushed  your mother and kicked her car.  Your mother of course said that the push was a tiny push and was being overblown.  But I have come to know your mother over the last few months and am full of respect for her because I know how difficult it is to stand by you as you keep putting your toe across the touchline.  But she has.  My perspective on this is that she (understandably, as all mothers are), is guilty of minimising your faults for your own protection, and because she loves you so much.  And I expect that her rendition of that incident is an example of that.  Importantly in the record as I have it, the police reflect that you, during the course of this sentence, appear to be controlling of your mother and manipulative of her.  There are concerns as to your mother’s ongoing safety and to some extent at least the stress and tension at the address has meant that those concerns are shared by your mother too.

(b)The record  says  the  address  is  regularly visited  by,  shall  we say, undesirable associates including during Probation staff visits despite repeated requests that they not be present at those times.  This issue must have reached a serious point because it led to the Probation

Officer seeking the company of a police officer during a home visit on

29 October 2015, according to the affidavit.

(c)      At a home visit on 13 November 2015, the Probation Officer noted multiple boxes of empty cans and bottles of alcohol even though you and your mother are the only ones living at the address, as far as I know.  So that matter is not directly the subject of charge, though of course the subject of considerable suspicion.   And it must be concerning in terms of the ongoing suitability of home detention at this address.

(d)As I have said the primary reason for the application was your failure to attend alcohol and drug counselling on two occasions.  You were warned after your first failure on 3 November 2015 but you failed again to attend on 30 November.  And as Mr Knowsley pointed out you were on extraordinarily thin ice before that.   You were exited from the programme.  You had to be, there is a long queue of people trying to get into it, and you were not helping yourself. And you are, I am told, no longer eligible to be considered for a residential rehabilitation – one of the primary reasons for you receiving the home detention sentence in the first place.

(e)       Ms Gaskin advises in relation to the appointment on 30 November

2015 that the Department decided to give you another chance, despite your first breach and approved your attendance at the 30 November

2015 appointment in the hope that this would led to your attendance at a daytime drug and alcohol course.   It was only after you failed to attend that appointment, that the current application was brought.  So although your perspective and, to some extent that of your mother, is that the system has been clumsy in dealing with your needs – big systems like this often are; it cannot be said they have not been patient with you, and big systems like this often aren’t.  So if you are going to break out of this cycle Mr McKay you are going to have to learn to help yourself.

(f)      Your mother has withdrawn her consent to your serving your home detention at her home.  That too is understandable and must have been a difficult decision for her.  And that is particularly telling in my view

– that the woman who stood by you simply found it too difficult.

[6]      So it is obvious, and you agree yourself, that home detention is no longer appropriate and that you must be resentenced to a short term of imprisonment.  You have served nearly half of your six months’ home detention sentence.  There is no punitive element  in  this  resentencing.    I simply must  sentence  you  now to  the remainder of the term of imprisonment you would have served if I have been sentencing you at the time of first sentence.

[7]      I   resentence   you,   taking   time   served   into   account,   to   six   months’ imprisonment on the original charge.  On the charge of breach of home detention, Mr McKay, I was going to sentence you to another month but I have changed my mind because I think punishment of another couple of weeks in prison is not really going to serve any purpose in your case.   You have to go to prison because your sentence did not work, and perhaps you did not understand the chance you were getting, and you squandered that chance.

[8]      Ultimately, whether you fix your life up is going to be a question for you. People have tried to lead you to the water but you have not drunk.  Now you are going to have to.  I do not consider that punishing you further is going to help you in any way, or that retribution somehow makes the system more satisfied than what otherwise have  been.    Rather,  I think  the  challenge for  you  is  a  personal  one. Whether you take it or not is between you and the man inside you – not for me.

[9]      So, on the charge of breach of home detention I convict you, having pleaded guilty, and discharge you.   The final sentence will therefore remain six months’ imprisonment.

[10]     At the end of your term of incarceration, there will be a release condition that you are to attend any alcohol and drug counselling or other service to which you may be directed by the Department.  I know that you feel that you are being set up to fail

there, and maybe you are.  That takes me back to the first point that I have made a number of times now.  In the end, whether you take that opportunity up – whether you choose to comply is a matter for you and the man inside.  If you fail then you fail.

[11]     Thank you.  Stand down.

Williams J

Solicitors:

Crown Solicitor, Wellington