Farrow v Police

[2014] NZHC 539

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2014-406-02 [2014] NZHC 539

BETWEEN  JESSE DAMIEN FARROW Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   21 March 2014

Counsel:                  R Gould for the Appellant

A Mills and E Riddell for the Respondent

Judgment:                21 March 2014

ORAL JUDGMENT OF MALLON J

[1]      On  10  March  2014  Mr Farrow  pleaded  guilty  to  a  charge  of  breach  of community work.  He is to be sentenced in the District Court on 31 March 2014.  He was remanded in custody pending sentence.  He appeals against the District Court Judge’s decision to decline to grant him bail pending sentence.1

[2]      The breach of community work occurred on 18 January 2014.   Mr Farrow had  received  a  sentence  of  90 hours  community  work  for  an  earlier  breach  of community work on 24 August 2013.  That community work was imposed for other offending.   It is not entirely clear from the Criminal and Traffic History which community work sentence had been breached.   In 2013 Mr Farrow received three sentences of community work:  40 hours were imposed in respect of excess breath alcohol offending; 80 hours were imposed in respect of breach of home detention

conditions, and 100 hours were imposed in respect of methamphetamine offending.

1      Department of Corrections v Farrow DC Blenheim CRI-2014-006-0107, 10 March 2014.

FARROW v NEW ZEALAND POLICE [2014] NZHC 539 [21 March 2014]

[3]      The present position is that all those earlier periods of community work have been completed.   That left the additional 90 hours community work imposed on

16 December 2013. As at 18 January 2014 Mr Farrow had completed just 0.75 hours of the 90 hours imposed.  This appears to relate to his induction for that community work.  However the community work centre is closed for a period over Christmas, and possibly it was closed for all of the time between 16 December 2013 and the breach on 18 January 2014. Therefore it seems that Mr Farrow may have missed just one day of community work when he was charged with the breach.  Mr Farrow was on bail between the charge and the entry of his plea.  By the time Mr Farrow entered his plea on 10 March 2014 he had completed a further 21 hours of community work. Mr Farrow has three children who he supports.  He was in paid employment as at

10 March.  He has employment available to him if he is released.

[4]      Bail may be granted if it is in the interests of justice pending sentence.  The District Court Judge considered it was not.  The Judge was of that view because he regarded  a  sentence  of  imprisonment  as  the  only  possible  sentence.    That  was because  of  Mr Farrow’s  history  of  contempt  for  court  sentences.    That  history included the above breaches of community work together with a breach of post- detention conditions on 9 September 2013, a breach of home detention conditions on

10 August 2013, and other breaches in 2009 and 2010.

[5]      The appeal is brought principally on the basis that imprisonment is not the only likely appropriate sentence.  In support of that position counsel for Mr Farrow refers to the hierarchy of sentences which would suggest that a sentence of community  detention  or  a  sentence  of  home  detention  ought  to  be  formally considered before determining that imprisonment is the only appropriate sentence. Those sentences do of course require that Mr Farrow show that he is able to comply with court orders.  There is obviously some cause for concern about that because of the history to which I have referred.  Having said that it is in Mr Farrow’s favour that he completed 21 hours after being charged and entering his plea.   It is also in his favour that he has completed the previous community work sentences.

[6]      Therefore it was an error, in my view, for the District Court Judge to rule out the possibility of other sentences short of imprisonment as he did at the time of

considering Mr Farrow’s bail.  I consider that the Judge ought to have called for an appendix to the pre-sentence report so that community detention and/or home detention could at least be considered at the time of sentencing.  Furthermore, if Mr Farrow were to be granted bail he may be able to complete further hours of the community work sentence.   This too would count in his favour and might, as his counsel submits, provide a basis for probation to form a different view as to the appropriate sentence for Mr Farrow.   If an appendix report is called for, that may delay sentencing on 31 March 2014.  If sentencing is to be delayed, that is a further factor in Mr Farrow’s application for bail.

[7]      In those circumstances I am allowing the appeal.  Mr Farrow is now to have bail pending sentencing.  I also order an appendix to the pre-sentence report to assess community work and/or home detention.   The bail address will be the address of Mr Farrow’s grandfather.  The conditions of bail are that he is to report to the Police Station in Blenheim by 4 pm tomorrow and he is to full comply with the directions of the probation officer.

Mallon J