Fordham v Department of Corrections (Crown Law Office)
[2015] NZHC 561
•25 March 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000031 [2015] NZHC 561
BETWEEN BRETT CHARLES FORDHAM
Appellant
AND
DEPARTMENT OF CORRECTIONS (CROWN LAW OFFICE)
Respondent
Hearing: 16 March 2015 Counsel:
K K Harding for the Appellant
K J Cooper for the RespondentJudgment:
25 March 2015
JUDGMENT OF DUFFY J [re Appeal Against Sentence]
This judgment was delivered by Justice Duffy on 25 March 2015 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Karen Harding Law, Auckland
Crown Law, Wellington
FORDHAM v DEPARTMENT OF CORRECTIONS [2015] NZHC 561 [25 March 2015]
[1] The appellant, Mr Fordham, was sentenced in the District Court to 200 hours’ community work and four months’ community detention for the offences of possession of cannabis for supply and cultivation of cannabis.
[2] He completed the sentence of community detention, but he did not complete the community work within the required time. A probation officer applied to have this part of the sentence cancelled and substituted. On 6 November 2014, Judge Simpson cancelled the sentence of community work. The re-sentencing was adjourned for a pre-sentence report to be prepared. On 4 February 2015, Judge R G Ronayne substituted three months’ community detention and ordered Mr Fordham to pay Court costs of $130. Mr Fordham appeals against this substituted sentence.
[3] The respondent agrees that a sentence of three months’ community detention was not available as it resulted in a total sentence of more than the maximum six months’ community detention, which is contrary to s 69B(2) of the Sentencing Act
2002.
[4] There is no doubt, therefore, that the appeal should be allowed. The issue between Mr Fordham and the respondent relates to the appropriate substitute sentence. He argues for a fine, whereas the respondent seeks a sentence of two months’ community detention.
Factual background
[5] The charges arose out of a police search of Mr Fordham’s house on
20 February 2012. In a large shed on the property, police found a door disguised as part of the bathroom wall. Immediately behind the door was another door accessible only by security pin. Behind the second door was a sophisticated cannabis growing operation. The shed was set up with high quality surveillance cameras, a recorder and several monitors.
[6] The area was divided into two rooms set up to accommodate different stages of plant growth. In the first room police located 10 seedlings set up in a mini
glasshouse. Next to the seedlings were four larger plants, approximately 20 centimetres in height. These plants were under a concentrated light with a timed watering system. A chilly-bin in this room was found to contain 47.1 grams of cannabis buds, and another bin contained 829.4 grams of loose cannabis leaf. Various growing equipment and materials were also located.
[7] The second room was set up to accommodate larger plants under artificial lamps, with watering systems and extractor fans. Four one metre high cannabis plants were set up. Outside of the shed, nine rubbish bags were found containing growing materials and stumps of harvested cannabis plants.
[8] Mr Fordham was jointly charged with possession for supply and cultivation with his wife. However, the charges against his wife were dropped when Mr Fordham pleaded guilty.
[9] Mr Fordham is now 50 years of age.
Original sentencing
[10] Mr Fordham pleaded guilty to one charge of the cultivation of cannabis under ss 9(1) and (3) of the Misuse of Drugs Act 1975, and one charge of possession of cannabis for supply under s 6 of the Act. The maximum penalties for these offences at the time they were committed were two years’ imprisonment and five years’ imprisonment respectively.
[11] At the original sentencing on 30 August 2012, the Judge noted that the prosecution accepted that the cannabis was being grown for Mr Fordham’s wife’s medicinal purposes, and that there was no suggestion Mr Fordham consumed the cannabis himself or was growing it for a third party.
[12] The Judge considered that the sentencing indication of two years’ imprisonment was slightly high. The Judge sentenced Mr Fordham to four months’ community detention, requiring Mr Fordham to be at his home address between
8.00 pm and 7.00 am, seven days a week. The Judge also imposed 200 hours’
community work.
[13] The sentence of community work was not covered in the pre-sentence report. Nor did Mr Fordham’s counsel suggest such a sentence. The first Mr Fordham knew of it was when the Judge imposed it. Accordingly, there was no opportunity before the original sentencing for Mr Fordham to learn what this sentence entailed, or to comment on whether he was physically able to perform such a sentence. Nor was there opportunity for the probation service to verify if Mr Fordham had health issues that only made him fit for light duties, and if so, whether community work performing light duties was actually available to him.
Performance of original sentence
[14] Mr Fordham completed 14 hours of the 200 hours of community work. At the appeal hearing, the respondent accepted that on every day that Mr Fordham was obliged to present himself for community work, he turned up and reported for work. However, on each occasion, it seems that no suitable work was available, and so he left. This was apparently done with the permission of the community work supervisor.
[15] Mr Fordham provided affidavit evidence in support of his appeal. The respondent did not oppose the admission of this evidence. I was satisfied that it was in the interests of justice that I take the evidence into account, despite much of the information it contains being available at the time of the substantive hearing in the
District Court, albeit not in evidential form.1
1 As the charges were laid prior to the commencement of the Criminal Procedure Act 2011, the ability of an appeal Court to hear fresh evidence on appeal is governed by s 119(3) of the Summary Proceedings Act 1957. The principles to be applied in determining an application were set out in R v Bain [2004] 1 NZLR 638 (CA) endorsed by the Privy Council in Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]: An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is (a) sufficiently fresh, and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.
[16] In his affidavit, Mr Fordham outlined his various health problems. At the time he was to serve the sentence of community work, he had severely high blood pressure. He said it has taken some time for his medical practitioner to find the right combination of medication to bring this problem under control. He has a torn and detached ACL ligament in his left knee and requires surgery to repair it. This injury affects his mobility. He cannot stand for long periods of time and he cannot walk for more than 20 to 30 minutes at a time. He also has a ripped bicep in his right arm. He has had surgery for this injury, but says his arm has not recovered its full strength. Mr Fordham’s description of his health problems is consistent with the medical certificates that were before the District Court. I accept that his health problems mean that he cannot stand for any length of time and he cannot do physical labouring. He operates a kitchen cabinet-making business, which might suggest some capacity for physical work, but he deposes that he uses employees to do this physical work. There is nothing extraordinary about this explanation; it makes sense.
[17] Mr Fordham says in his affidavit that at the relevant time, his probation officer was Kelly Coffin. She managed his community detention and community work until she went on leave. She remains on leave and has been on leave for some six months. At the time the probation service applied for a substituted service, Ms Coffin was on leave.
[18] Mr Fordham reported to Ms Coffin the difficulties he was having regarding performance of the community work. He says she discussed with him whether community work was unsuitable, given his medical condition, and she discussed with him, her making an application to the Court for a substitute sentence. However, she never did so. Mr Fordham says he did not know how to make an application to the Court, but he says he remained in regular communication with Ms Coffin. He says that he reported to her on every occasion he was required to do so, and he attended the community work centre every Sunday to sign in over a six month period. The signing in process and being excused for medical reasons every Sunday resulted in the 14 hours being deducted off his community work hours for reporting.
[19] Mr Fordham says in his affidavit that he asked Ms Coffin about light duties, but was told there were no light duties available at the community work centre. Most of the work involved going out in a van to do roadside work like cutting scrub, which he could not do due to his arm and leg injuries. Mr Fordham says that he never refused to do community work and never refused to do any duties. It is simply the duties that were available to him were not suited for his medical conditions. He also says he was not allowed to find his own community work placement in the community, and his own suggestions were rejected as not suitable. He gives the example of suggesting he pay for a kitchen to be installed in a kindergarten and organising it, which would have involved some time.
[20] The probation service did not apply for a substitute sentence for Mr Fordham during the currency of the community work sentence. Nor was he ever breached for failing to perform the original sentence of community work. Moreover, despite being served with Mr Fordham’s affidavit, the respondent chose not to provide rebuttal evidence. Having not opposed the admission of the fresh evidence and having not produced rebuttal evidence, it follows that the respondent can be treated
as having accepted the fresh evidence.2
Re-sentencing on 4 February 2015
[21] Mr Fordham appeared on 4 February 2015 for the sentence of community work to be substituted.
[22] The respondent’s application for a substituted sentence was supported by an
affidavit sworn by Kani Tate. The affidavit stated that from 1 September 2012 until
30 February 2013, Mr Fordham had maintained regular contact with probation but had failed to complete his first 100 hours of community work within six months, and failed to complete the second 100 hours of community work as well.3 The affidavit referred to Mr Fordham’s injuries and medical certificate. The affidavit went on to
state that Mr Fordham was currently working and that he and his wife operated a
2 This is not to be critical of the respondent. I consider that the respondent has adopted a sensible and responsible approach to this appeal.
3 See s 58 of the Sentencing Act which mandates the timeframes within which a sentence of community work must be completed.
company called “Kitchen Perfection”. This statement juxtaposed the reference to Mr Fordham’s injuries and medical certificate. The effect on the reader is to cast doubt on Mr Fordham’s claimed incapacity.
[23] The pre-sentence report prepared for the re-sentencing hearing referred to Mr Fordham only being fit for light duties, but went on to state that “these medical disabilities may have been misleading”. Thus, the report writer certainly interpreted Mr Tate’s affidavit to suggest that there may be no foundation to Mr Fordham’s poor health and injury claims. However, the pre-sentence report gave no reasons for why the poor health and injury claims were thought to be misleading. Thus, without any proper investigation having been undertaken, the suggestion that Mr Fordham’s poor health and injuries were fabrications began to take on a life of its own.
[24] The report writer also noted that Mr Fordham “engaged well in the interview but his expectations of the probation process left a negative thought in its place”. It is hard to know precisely what this means, but it suggests to me that Mr Fordham appeared to the pre-sentence report writer to express a negative view of the probation service. Certainly earlier in the pre-sentence report, the writer recorded that Mr Fordham considered “his medical conditions should have been managed appropriately and does not accept the information on the application”. I take this to be a reference in the application for a substituted sentence to Mr Fordham failing “to comply with the conditions of his sentence due to a medical issue”. For the reasons given later herein, I observe now that I can understand why Mr Fordham may have negatively viewed the probation service’s handling of the community work sentence.
[25] The Judge found that there had been a “persistent refusal” by Mr Fordham to complete the community work sentence. At the time the application was made to substitute the sentence, there were 186 hours out of the 200 hours outstanding. The Judge referred to a medical report dated 25 September 2013. The Judge considered this to be “relatively uninformative”. He also referred to another medical report, dated 30 October 2014, and considered that there was no evidence to suggest that appropriate light duties, which Mr Fordham had said were the only type he could undertake, were not available to Mr Fordham. The first medical report referred to
Mr Fordham’s high blood pressure, and the second report referred to the injuries of his left knee and right arm.
[26] My understanding of the two medical certificates may have been assisted by the more detailed description Mr Fordham gave of his poor health and injuries in his affidavit. Nonetheless, I consider that the certificates were sufficiently informative to make it clear that someone of his age and with his injuries was unsuited to the general range of work that a community work sentence will involve, and that he should have been offered light duties.
[27] The Judge accepted the probation officer’s submission that community detention was the appropriate sentence to be substituted. He referred to the pre- sentence report and commented that Mr Fordham had signed the agreement forms with hesitation. Mr Fordham says in his affidavit that he simply queried the import of what he was to sign before execution. The Judge also found that Mr Fordham had
not undertaken light duties,4 though there was no evidence before the Judge to
establish that light duties had been offered to Mr Fordham, but he had declined to perform this work.
[28] The pre-sentence report recommended community detention and a fine. The Judge imposed three months’ community detention in place of the community work with a curfew between 9.00 pm and 6.00 am.
Appellant’s submissions
[29] Mr Fordham argues that Judge Ronayne made a number of errors in principle that led to a manifestly excessive sentence. Under s 69(B)(2) of the Sentencing Act, the maximum period of community detention that can be imposed is six months. The additional three month period meant that the total period of community detention imposed was seven months.
[30] First, Mr Fordham argues that the Judge failed to take into account the appropriate sentencing principles in that the Judge did not impose the least restrictive
sentence appropriate in the circumstances and accorded greater weight to the principles of denunciation and deterrence than the personal circumstances of the offender.
[31] Secondly, Mr Fordham argues that, in imposing an additional three months’ community detention, the Judge was wrong in principle and formulated the sentence on the wrong basis. The end sentence did not reflect the original Judge’s assessment of the cannabis offending; namely that it was at the lower end of the scale and there was no suggestion that it was being grown for a third party. The ability to substitute a sentence under s 69(B)(2) is not meant to sanction an offender for failing to comply with a sentence of community work: there is a specific offence for breaching
community work in the Sentencing Act.5 The substituted sentence should be
proportionate to the original sentence.
[32] Further, Mr Fordham argues that the Judge did not take into account his genuine medical problems and took inappropriate considerations into account, such as considering the references in the pre-sentence report to an alleged hesitation by Mr Fordham to sign the home detention or community detention offenders’ agreement forms to be an aggravating feature justifying an increased punishment. Mr Fordham submits that he was unfit for a sentence of community work. This was not adequately taken into account at the original sentencing, as his health issues were not canvassed in the original pre-sentence report. In relation to the February pre- sentence report, he objects to the statement that his “medical disabilities may be misleading”. He states that, although he is the director of a company that designs and builds kitchens, he himself does not do any of the building work. Mr Fordham also disputes the finding that he hesitated to sign the home detention and community detention offenders’ agreement forms and states that he only wanted to be clear about what he was signing.
[33] Mr Fordham notes that on cancelling the sentence, the Judge was dismissive of his medical certificates, even though they were accepted by the Department of Corrections.
[34] Finally, Mr Fordham submits that it is relevant that he has not re-offended since he was sentenced in August 2012 and is assessed as having a low likelihood of re-offending. As there is no ongoing risk to the public or rehabilitative needs, there is no need to further detain him. Therefore, a fine should be imposed.
Respondent’s submissions
[35] The respondent accepts that the total sentence of seven months’ community detention is a jurisdictional error. Therefore, s 121 of the Summary Proceedings Act
1957 applies.6 Under this section, the Court may confirm the sentence, quash the
sentence, or vary the sentence. The Court may exercise any power that the Court whose decision is appealed might have exercised.
[36] The respondent submits that while a substituted sentence must not include an element of sanction, a re-sentencing Judge may factor in the reasons why community work is no longer appropriate and why a more restrictive sentence is now relevant. In substituting the sentence, Judge Ronayne preferred the evidence of the Department of Corrections that the appellant was able to undertake community work, albeit light duties, and the failure to do so meant that a more restrictive sentence was appropriate. That was also consistent with the principle that deterrence
of cannabis offending is the paramount consideration.7
[37] Therefore, the respondent submits that community detention was the most appropriate substitute for community work and that, rectifying the jurisdictional error, a substituted sentence of two months’ community sentence, resulting in an end sentence of six months’ community detention, would be within range.
Approach on appeal
[38] This appeal is governed by s 121 of the Summary Proceedings Act. This
approach proceeds on an “error principle”. There must be an error vitiating the lower Court’s original sentencing discretion in order for the Court to interfere on
6 As the charges were laid on 22 February 2012, prior to the Commencement of the Criminal
Procedure Act 2011, the Summary Proceedings Act applies.
7 R v Terewi [1999] 3 NZLR 62 (CA) at [15].
appeal.8 A qualifying error is that the end sentence was manifestly excessive or manifestly inadequate, or where the lower Court did not have jurisdiction to impose a certain sentence. On appeal, the Court may confirm the sentence, quash the sentence and pass an appropriate sentence, quash a severable part of the sentence or vary the sentence.9
Relevant law
[39] Section 68 of the Sentencing Act gives an offender or probation officer the ability to apply to the Court to vary or cancel a sentence, and substitute another sentence. The section provides:
68 Variation or cancellation of sentence of community work
(1) An offender who is subject to a sentence of community work, or a probation officer, may apply in accordance with section 72 for an order under subsection (3) of this section on the grounds that—
(a) there has been a change of circumstances since the sentence was imposed that would justify the variation or cancellation of the sentence; or
(b) having regard to any change in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence, the continuation of the sentence is no longer necessary in the interests of the community or the offender.
(2) A probation officer may apply in accordance with section 72 for an order under subsection (3) of this section—
(a) if an offender who is subject to a sentence of community work is convicted of an offence punishable by imprisonment; or
(b) on the grounds that the offender has behaved in a manner described in any of paragraphs (a) to (j) of section 71(1).
(3) On an application under subsection (1) or subsection (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
(a) vary the sentence by reducing the number of hours of work to be done; or
(b) cancel the sentence; or
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
9 Summary Proceedings Act, s 121(3).
(c) cancel the sentence and substitute any other sentence (including another sentence of community work) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
(4) When determining a substitute sentence under subsection (3)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
(5) If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
[40] In R v Morgan, the Court of Appeal set out the principles surrounding an application to substitute a sentence under this section.10 The Court found that, in re- sentencing under s 68(3)(c), the judge is concerned to impose a sentence that could have been imposed on the offender originally. The substituted sentence should not include any element of sanction for a failure to comply with a sentence of community work, as s 71 creates a specific offence for breach of community work and is the appropriate mechanism to deal with that issue.11 However, the Court went on to say that a re-sentencing judge is likely to weigh the various purposes and principles of sentencing in a way that is different to the judge at first sentencing: for example, rehabilitation may assume less weight on re-sentencing given that the offender has failed to comply with the community-based sentence.12 Therefore, while there has to be proportionality between the sentences, the Court considered that there could not be any strict correlation between them; the essential point is that the sentence must be one that could properly have been imposed initially.13
[41] R v Morgan approved the comments of Heath J in White v Police.14 In that case, the appellant had been sentenced for various offences, resulting in a total sentence of 240 hours’ community work. On an application to vary the sentence, the District Court Judge had substituted a sentence of three months’ imprisonment.
[42] On appeal, Heath J considered that the District Court erred in relation to s 68(3)(c) and noted that a sentence of three months’ imprisonment was half the
10 R v Morgan [2008] NZCA 232.
11 At [13].
12 At [14].
13 At [15].
14 White v Police HC Hamilton CRI-2006-419-44, 6 April 2006.
maximum penalty in respect of the breach of protection order offending and the maximum penalty in respect of resisting arrest. Heath J quashed the sentence and sentenced the appellant to two months’ imprisonment. He considered this sentence to be one of “some severity” for someone with no prior convictions.15
[43] Dunick v Police was an appeal against a substituted sentence of 10 months’ imprisonment in place of an original sentence of 260 hours’ community work for charges of driving while disqualified, breach of release conditions, being unlawfully in an enclosed yard, theft of petrol and assault.16
[44] On appeal, Mander J noted that “there can be no strict correlation or mathematical formula to calculate a comparable substituted sentence to that originally imposed”.17 He considered Morgan, where an original sentence of 150 hours’ community work was substituted for a sentence of three months’ imprisonment. Therefore:18
Using the guidance of the case of Morgan, however it is apparent that the total substituted sentence of 10 months imprisonment for the original 260 hours community work is excessive.
[45] Mander J allowed the appeal and reduced the substituted sentence to seven
months’ imprisonment.
[46] Finally, in Newman v Chief Executive of the Ministry of Social Development, the appellant’s original sentence of 150 hours’ community work had been varied, and a sentence of three months’ community detention imposed, along with the original
150 hours’ community work.19 On appeal, the Court considered that the varied
sentence was manifestly excessive. The appellant had already served the three
months’ community detention. The Court therefore left this part of the sentence and varied the community work to 70 hours.
15 At [18].
16 Dunick v Police [2014] NZHC 482.
17 At [11].
18 At [11].
19 Newman v Chief Executive of the Ministry of Social Development HC Whangarei CRI-2011-488-
28, 26 July 2011.
Discussion
[47] The substitution of three months’ community detention for the community work sentence resulted in a total sentence of seven months’ community detention. Both parties agree that this was clearly not a sentence that could have been imposed on Mr Fordham at the time he was sentenced. Section 69B(2) of the Sentencing Act provides that sentences of community detention must not exceed six months. Therefore, the substitute sentence imposed in the District Court must be set aside for want of jurisdiction. It is then a matter for this Court as to what sentence should be imposed in its place.
[48] Mr Fordham seeks the imposition of a fine. Ordinarily, as a fine is a less restrictive sentence than community work,20 it would not be appropriate to substitute a fine for the original sentence. This could encourage non-compliance with community work sentences.
[49] Because the substituted sentence is not meant to sanction the offender for failing to complete the community work, the reasons why an offender failed to do so are usually not relevant to the substituted sentence. However, this is a unique case.
[50] I consider that once it became clear that Mr Fordham had not fulfilled the first 100 hours of community work in the first six months of this sentence, if not earlier, the probation service should have carefully assessed why this was so. If it did not believe Mr Fordham’s reliance on his poor health and medical injuries as a reason for not performing the community work allocated to him, it should have commenced proceedings for breaching this sentence. Section 71 creates offences for breaching community work. These include:
(a) Section 71(c), fails without reasonable excuse to do any work satisfactorily in accordance with the sentence;
20 Sentencing Act 2002, s 10A(2).
(b)Section 71(d), fails without reasonable excuse to complete the required number of hours work within the period prescribed under s
58, or within any extended period under ss 69 or 69A;
(c) Section 71(i), refuses to work or fails to work in the manner reasonably required of the offender.
[51] A prosecution under s 71 would have provided Mr Fordham with the opportunity to defend himself against the probation service’s view that his medical certificates and his assertions regarding his poor health and medical injuries were “misleading”. Faced with a s 71 prosecution, Mr Fordham would have had the choice of accepting the probation service’s view of matters, or defending himself. In the latter case, he could have called medical evidence to substantiate his poor health and medical injuries. It would then have been up to a District Court Judge to determine if his physical incapacity claims were credible or not.
[52] The view that Mr Fordham’s claim to have poor health and medical injuries rendering him unfit for work was misleading, coupled with the omission to take proper steps to hold him accountable for the “misleading” conduct left Mr Fordham in an invidious situation. The probation service had formed an adverse view about his conduct without first giving him a proper opportunity to be heard and so to disprove that view. In short, the probation service did not treat him with procedural fairness.
[53] The probation service allowed the sentence of community work to run on, with no steps being taken to test whether Mr Fordham’s inability to perform the community work available to him was credible or not. No steps were taken to provide him with light duties. No attempt was made to apply for a substituted sentence earlier on. After six months of Mr Fordham reporting for community work and being turned away because no suitable work was available, I would have thought that the probation service would then act to:
(a) offer him light duties; or
(b)if no light duties were available, to apply for a substituted sentence straightaway; or
(c) if Mr Fordham’s medical excuses were not accepted, to breach him
for failing to perform community work.
But nothing was done until the one year period for completing the sentence expired. [54] Section 62 of the Sentencing Act provides guidance criteria to a probation
officer in determining placement of an offender for community work. The criteria include the offender’s mental and physical capabilities. The Act contemplates offenders of varying physical capabilities performing community work. The Act also makes it the responsibility of the probation service to find an appropriate placement for an offender, based on that offender’s individual characteristics. Thus, it was the responsibility of the probation service to find Mr Fordham community work that suited his physical capabilities. Here, the sentence of community work was imposed without the probation service or Mr Fordham having notice that it would be, so no enquiry before sentencing could be made. But once the problem of Mr Fordham’s physical incapacity emerged, the probation service should have dealt with it in one of the ways identified herein.
[55] In my view, the probation service has to accept some responsibility for the situation being reached where Mr Fordham failed to perform his allocated 200 hours of community work. It is not good enough for the probation service to allow the statutory timeframe for a 200 hour sentence to run its course and then to apply for a substitute sentence in a way that attributes fault to Mr Fordham, and doubts his reasons for failing to perform the community work available. By now, it is too late
to have a proper enquiry into why he did not perform this community work.21
[56] Ordinarily, an appropriate replacement sentence for an original sentence of
four months’ community detention and 200 hours’ community work may have been
21 The start date of the community work sentence was 30 August 2012. The maximum time allowed to serve 200 hours is one year under s 58 of the Sentencing Act – 30 August 2013. Under s 25(3)(a) of the Criminal Procedure Act 2011, a charge for breaching community work has to be filed within six months after the date on which the offence was committed. Therefore, the last possible date to bring such a charge would be six months after 30 August 2013.
in the range of somewhere between six months’ home detention, and four months’ home detention, coupled with a fine of somewhere between $1,500 and $2,000. However, in the present case, I consider that Mr Fordham has already been penalised through: (a) the need to engage private counsel to run this appeal; (b) having to deal with part of his sentence being incomplete more than two years after the original offending in circumstances where such delay is not of his own making; and (c) having to suffer procedural unfairness at the hands of an arm of executive
government.22
[57] The pre-sentence report assessed his risk of re-offending as low and his motivation to avoid further offending as high. This suggests to me that personal deterrence is not relevant here. The negative attitude that Mr Fordham may have expressed regarding the probation service is justified. I consider the burden that he has borne since the original sentence was imposed, without regard to his health and without further enquiry being properly made regarding his health, is sufficient penalty in itself. For these reasons, I do not propose to impose any further sentence in substitution of the original sentence of community work.
Result
[58] The appeal against sentence is allowed. The sentence of three months’
community detention is set aside. No substituted sentence is imposed in its place.
Duffy J
22 See s 27 of the New Zealand Bill of Rights Act 1990.
0
3
0