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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 88
Decision Date: 5 February 2019

CaseChat Overview and Summary

Andrew James Field appeals against his conviction for two counts of burglary and the sentence of one year and nine months' imprisonment imposed by the District Court. The court was required to decide whether the District Court legally erred in not imposing a sentence of home detention instead. The appeal was based on the grounds that Field had changed his lifestyle, addressed his drug addiction, moved to a new area, and secured employment, which the District Court had not adequately considered. The High Court considered whether the District Court erred in not taking a chance on Field's rehabilitation, given his history of non-compliance with electronic monitoring and home detention orders, and his extensive criminal record.

The High Court held that the District Court was not legally erroneous in its decision. The court focused on the present reality and Field's demonstrated inability to comply with electronic monitoring bail, which indicated that a successful period of home detention was unlikely. The court emphasised that the public is entitled to protection and that the District Court was not wrong in declining to run the risks associated with non-compliance. The court concluded that the District Court's decision was reasonable given Field's persistent offending history and the risk he posed to the public.

The appeal was dismissed. The High Court upheld the District Court's decision to impose a term of imprisonment rather than home detention, considering the evidence of Field's non-compliance with bail conditions and his extensive criminal record. The court found that the District Court's assessment of the risks of non-compliance was appropriate and that it was not legally erroneous to decline to impose a sentence of home detention.

Orders