Field v Police

[2019] NZHC 88

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2018-416-26

[2019] NZHC 88

BETWEEN

ANDREW JAMES FIELD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 February 2019 (via AVL)

Counsel:

N Wright for Appellant

C C Gullidge for Respondent

Judgment:

5 February 2019

JUDGMENT OF SIMON FRANCE J

[1]        Mr Field was convicted of two counts of burglary and sentenced to a term of imprisonment of one year and nine months’.1 He appeals the decision of the District Court not to instead impose a sentence of home detention.

[2]        The two burglaries each had odd aspects. In the first Mr Field broke into a rail yard. He damaged one CCTV camera but also looked directly into another one. Nothing was taken. On the second occasion Mr Field broke into a building yard. He loaded $4,000 worth of roofing material on a trailer which he was pushing when police arrived.

1      New Zealand Police v Field [2018] NZDC 25418.

FIELD v POLICE [2019] NZHC 88 [5 February 2019]

[3]        Home detention was declined because of Mr Field’s poor performance in relation to earlier electronic monitoring situations. The Judge considered Mr Field would not comply with the terms of a home detention sentence.2

[4]        This application was advanced on the basis that Mr Field had changed his life, addressed a methamphetamine habit, moved to a new area, and found work. While the offending occurred in Dannevirke, by the time of sentencing Mr Field, aged 43, had moved to Wairoa. This was designed to achieve separation from people who were a negative influence on him. In Wairoa, he has made contact with people who support him and has a job offer. His family (not in Wairoa) remain a constant supportive presence and he has entered a new relationship. He had a supportive pre-sentence report, and there were two letters of support filed as well as letters from Mr Field and his mother. His mother notes the positive change and advises that to her knowledge Mr Field now consistently takes his medication. It is submitted the Judge paid no or insufficient attention to these matters.

[5]        I accept there is material that may have led some Judges to take a chance. The issue on appeal, however, is whether it can be said the sentencing Judge legally erred in not doing so and in assessing the risks of non-compliance as being determinative.3

[6]        Mr Field has a significant criminal record.   In  terms of a  general profile   Mr Field has had both sentences of home detention and imprisonment. He has a large number of previous convictions and since 2004 there have been 40 sentences of imprisonment. In November 2016, he was sentenced to six months home detention which he breached, leading to a further sentence of four months home detention. One can note this as a failed home detention sentence, or, as Ms Wright does, as an example of ultimately completing such a sentence.

[7]        On the present charge Mr Field was eventually admitted to EM bail. At some point in March the bail address was transferred to Wairoa where Mr Field embarked on his new context. However, eventually bail was revoked and he was again remanded in custody. The reason was multiple examples of not remaining within the bail

2 At [18].

3      Pursuant to s 250(2) of the Criminal Procedure Act 2011.

address. Seemingly, despite warnings, Mr Field would go to the nearby river to do white-baiting. It was this inability, despite warnings, to comply with EM bail that most concerned the Judge.

[8]        I do not consider the Judge erred in his decision. One hopes of course the changes that are claimed eventually bed themselves in, but it was not wrong for the Court to focus on the present reality. If compliance with EM bail could not be achieved even for a short time, a successful home detention period seems unlikely. If non-compliance seems inevitable, one must turn to a record of persistent offending which involves some risk to the public. Since 2015, and in addition to the current charges, there are nine offences of burglary and receiving, two of assault, and one of unlawful possession of a firearm. The public is entitled to protection. EM bail afforded a reasonable opportunity to show Mr Field was a changed person. It was not taken.

[9]        I recognise of course that changes such as this take time, and there will be lapses. One should not over-react, but in the end the bail on these very charges was revoked for non-compliance. The District Court was not wrong to decline to again run those risks.

[10]The appeal is dismissed.

Simon France J