Department of Corrections v RJW HC Wellington CRI-2010-091-1482

[2011] NZHC 1241

THE NAME OF THE OFFENDER IS PERMANENTLY SUPPRESSED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-091-1482

DEPARTMENT OF CORRECTIONS

Applicant

v

RJW

Respondent

Hearing:         2 September 2011

Counsel:         T J Gilbert for Applicant

R M Gould for Respondent

Judgment:      2 September 2011

ORAL JUDGMENT OF DOBSON J

[1]      Mr W,  you  are  back  in  this  Court  today  because  the  Department  of Corrections has applied to cancel the sentence that was imposed by Justice Simon France here 10 months ago, on 29 October 2010.

[2]      At that time, you had pleaded guilty to a representative charge of indecently assaulting your 12 year old daughter.  Instead of sending you to prison, which would have been the usual sentence for offending as serious as yours, Justice France sentenced you to 18 months’ intensive supervision, and 250 hours’ community work. All the subsequent reconsiderations of your position have reflected on how merciful

and, in effect, how lenient the Judge’s approach to your sentencing was.

DEPARTMENT OF CORRECTIONS V RJW HC WN CRI-2010-091-1482 2 September 2011

[3]      The terms of your intensive supervision were built around your attending and completing a programme through Wellstop.    Conditions imposed included restrictions on your contact with persons under the age of 16 except on a supervised basis,  and  with  the  prior  written  approval  of  your  Probation  Officer.    Your subsequent difficulties have been because you have been unwilling or unable to comply with that condition.

[4]      On 10 June this year, you pleaded guilty to three breaches of the condition. Those incidents occurred:

on 23 and 24 January this year when you stayed with your family and had

contact with the victim of the offending;

on 26 May when you had direct contact with the victim without prior

written approval of the Probation Officer; and

on  26  May  again  when  you  attended  a  church-based  youth  activity evening where there were numerous children under the age of 16, again

undertaken without the prior approval of your Probation Officer.

[5]      Your conviction on those three breaches resulted in a sentence imposed in the Porirua District Court of one month’s imprisonment.   I am advised that you were able to serve that sentence without disrupting your participation in the Wellstop programme.  On that occasion, you were told by District Court Judge Walker:

If the matter goes back to the High Court on an application for review of that sentence and resentencing comes before France J he will know that that has not worked and a sentence of imprisonment would be highly likely to follow…

[6]      Since your release from prison on that occasion, you have been charged with two further breaches of the same condition of your original sentence.   First, on

25 July 2011, you visited a foster home at which one of your children was present, along with another child who was under the age of 16 years.   That visit occurred without the prior approval of your Probation Officer.   The following day, 26 July

2011, you visited your family home in Paraparaumu when one of your children was

present, and again did so without the authority of your Probation Officer.   I was sufficiently concerned about the bald state of the facts available to me on the Court file to hear evidence this morning from the supervising Probation Officer, and that has put each of those breaches into a context.

[7]      However, before considering the options on the present application, I need to record the circumstances of one formal matter that I have raised with counsel.  When the District Court imposed the one month’s imprisonment in June, part of its task was to make one of two orders that were open to it under s 78(2) of the Sentencing Act 2002 (the Act).   That provides that where an offender who is subject to a community-based sentence (in your case here, the intensive supervision sentence) is subsequently sentenced to a term of imprisonment of not more than 12 months, then

the Court has to order either:

that the community-based sentence be suspended entirely; or

that the community-based sentence be suspended for the duration of the period  in   which   the  offender  is   detained   under  the  sentence  of

imprisonment that was then imposed.

[8]      The records available to  me do  not  record  which of those  options  were ordered.  However, it is clear from the terms of the notes of sentencing that Judge Walker  intended  the  second  alternative  to  apply,  namely  that  the  sentence  of intensive supervision would be suspended only for the time you spent in prison, and would then resume.  Counsel are agreed that the present application should proceed today, on the basis that the sentence of imprisonment was imposed on terms that there be an order under s 78(2)(b) of the Act, suspending the community-based sentence only for that period.

[9]      So coming to the options on the present application.   The Department of Corrections has submitted before this morning’s hearing that the lenient course that was adopted to optimise the prospects of your rehabilitation has not worked, and that a sentence of imprisonment should now be considered.  Compliance with conditions

imposed on a sentence of intensive supervision is absolutely critical, and there is a pattern suggesting that you are incapable of complying.

[10]     On  your  behalf,  Ms Gould  urges  that  I  should  consider  the  relatively innocuous circumstances of the breaches complained of on behalf of the Department of Corrections, that they do not signal a “failure” of the rehabilitative sentence, and that the course decided upon by Justice France ought to be persisted with, by the imposition of a further period of intensive supervision.

[11]     Ms Gould has urged that the condition breached is extremely difficult for you to comply with.  However, having heard from the officer and the submissions from Mr Gilbert, I accept the rationale for the terms and for the sentence to work, you simply have to comply.

[12]     It appears that none of the breaches came to the attention of a Probation Officer because of any prospect of contact between you and your children might possibly involve the threat of criminal conduct on your part.   Rather, they were forms of contact that breached the constraints that had to be imposed as part of your sentence.  Those conditions are intended to assist your rehabilitation by limiting your contact with children to contexts that are pre-approved by the Probation Officer. However much that seems like interfering in your life, it was an appropriate term of the sentence of intensive supervision, and simply had to be respected.

[13]     The dilemma is this: the outcome of a prison sentence is unlikely to have positive rehabilitative effects for your future.   Intensive supervision clearly offers more  in  that  regard,  and  the  approach  adopted  by  Justice  France  in  your circumstances was understandable.

[14]     However, disobedience of the conditions on which such a sentence is ordered amounts to further offending.  Repeated breaches need to be dealt with firmly, and if such matters are not dealt with in firm terms, then any impression you may get, even if only subconsciously, that you do not have to comply with all the conditions of intensive supervision, can in itself be harmful to your rehabilitation.

[15]     Here, the breaches are not individually serious, but the fact that there is a pattern of them does make them serious.  I am satisfied that the risk that you think you can get away with non-compliance with conditions can be managed, and I am prepared to take that risk.  Mr W, this does amount to an exceptional leniency, but in all the circumstances of the case, your rehabilitative concerns still deserve primacy. You have been far too casual about compliance with the conditions restricting your presence  with  young  people,  but  I  am  giving  you  one  last  chance.     If  you inadvertently find yourself in breach, as the Probation Officer said in evidence this morning, you have got to get out immediately.

[16]     Instead of imprisonment, which, like Justice France before me, I have had to seriously consider, I sentence you to a further period of intensive supervision for a period of 14 months starting from today.  This substituted sentence is subject to the special  condition  that  you  attend  all  programmes  (as  defined  in  s 54H  of  the Sentencing Act) that you are required to attend, including the Wellstop programme. You should understand that the period I have chosen is because, as suggested on behalf of the Department, for your attendance at a 12 month programme to be arranged, there needs to be a bit of an overlap of time.   So the sentence will be

14 months.

[17]     I confirm that imposition of this new sentence involves cancellation of the previous sentence of intensive supervision, and I do nothing about the community work sentence.

[18]     I confirm continuation of the permanent name suppression order that has applied until now.

[19]     So I hope this Court does not see you again. You will not get another chance. You may stand down.

Solicitors/Counsel:

Crown Solicitor, Wellington for applicant

R M Gould, Wellington for respondent

Dobson J