Gawn v Police

[2012] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2011-412-000050

NZHC [2012] 169

BETWEEN  RICKY ALLAN JOSEPH GAWN Appellant

ANDNEW ZEALAND POLICE First Respondent

ANDDEPARTMENT OF CORRECTIONS - COMMUNITY PROBATION SERVICES Second Respondent

Hearing:         10 February 2012

Appearances: B Kilkelly for Appellant

R Smith for Respondents

Judgment:      17 February 2012

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 17 February 2012 at 4:30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel:            Brian P Kilkelly, PO Box 1416, Dunedin 9054  [email protected]

Wilkinson Adams, PO Box 803, Dunedin 9054  [email protected]

GAWN V POLICE HC DUN CRI 2011-412-000050 [17 February 2012]

Introduction

[1]      The  appellant  has  appealed  against  the  total  sentence  of  14  months imprisonment, imposed in the District Court at Dunedin on 20 December 2011.[1]

The sentences

[1] Police v Gawn DC Dunedin CRI 2010-012-5988, 20 December 2011.

[2]      The sentence of 14 months imprisonment comprised:

(a)       Five months imprisonment on a charge of assault (s 196 Crimes Act

1961);

(b)Three months imprisonment on a charge of breaching a sentence of supervision;

(c)      Two months imprisonment on a charge of breaching a sentence of community work;

(The sentences referred to at (b) and (c) were concurrent as between each other, but cumulative upon the sentence referred to at (a).)

(d)Three   months   imprisonment   imposed   on   an   application   by Community Probation Services to review and cancel a sentence of community work; and

(e)       Three months imprisonment, for breaches of community detention.

(The sentences referred to at (d) and (e) were cumulative upon each other, and cumulative upon the sentence referred to at (a) and the

concurrent sentences referred to at (b) and (c).)

Appeal issues

[3]      In his written appeal submissions, Mr Kilkelly did not challenge the sentence of five months imprisonment for assault.  He submitted that the sentences for breach of supervision and community work, the replacement sentence on cancellation of the sentence  of  community  work,  and  the  sentences  for  breaches  of  community detention were manifestly excessive, and failed to give the appellant credit for his guilty pleas.

[4]      Before discussing the sentences, it is helpful to set out further background to the sentences imposed on the appellant.

[5]      The  appellant  was  sentenced  to  four  months  community  detention  on  1

October 2010.  This sentence does not appear on the appellant’s Criminal and Traffic History, but Mr Kilkelly advised that it was imposed as a result of unpaid fines being remitted.

[6]      On 10 December 2010, a sentence of 358 hours of community work was imposed.   This was on three charges of breaching community detention, and one charge of breaching a community work order.  At the same time, the appellant was sentenced to three months community detention and nine months supervision.  The latter two sentences were also the result of applications for review and cancellation of community-based sentences.

[7]      On 22 March 2011 the appellant was sentenced to six months’ supervision,

for breach of supervision conditions.

[8]      On 20 December 2011, the appellant was before the District Court on charges of  having  breached  the  order  for  358  hours  community  work  (imposed  on  10

December 2010) and having breached the sentence of supervision (imposed on 22

March 2011).   The appellant was also before the Court on an application by the

Department of Corrections of cancel the sentence of community work imposed on 10

December 2010.  At the time, the appellant had completed 134 hours of community work, leaving 224 hours to complete.

[9]      Mr Kilkelly advised the Court that the appellant had completed his sentences of community detention.

The sentences for breach of sentence conditions

[10]     The Judge said, at [8] of the sentencing judgment:

When it comes to breaching Court orders and community-based sentences you are a recidivist offender. As I have said, there is no point in re-imposing further community-based sentences.

[11]     Mr  Kilkelly  accepted  that  assessment.    However,  he  submitted  that  the effective sentence of three months imprisonment (the maximum available for breach) was too high, in that it failed to give the appellant any credit for his guilty pleas.  He submitted that the plea relating to breach of supervision was entered at an early stage, and that the charge of breach of the community work order was only brought before the Court on 20 December 2011, whereupon a guilty plea was entered immediately.  In the circumstances, he submitted, the effective end sentence, for both breaches, should have been two months imprisonment.

[12]     Mr Smith accepted that the sentence of three months imprisonment for breach of supervision (considered in isolation from the other charge) was too high, and that no discount appeared to have been given for the appellant’s guilty pleas.   He submitted, however, that in the light of the totality of the two breaches, together with the appellant’s appalling record of non-compliance with community-based sentences, the overall sentence of three months imprisonment for the two breaches was appropriate.

[13]     While it is the case that, in respect of each charge there was only one breach, that must be considered against the appellant’s background of repeated breaches of community-based sentences, over several years.   Community-based sentences had been reviewed and fresh sentences imposed, but the appellant continued to breach them.  His record was appropriately described as appalling.

[14]     Further,  while  the  appellant’s  guilty  plea  on  the  charge  of  breach  of  a

community work order was entered immediately, the plea on the charge of breach of

a supervision order was not entered early.  He first appeared on that charge on 12

July 2011.   He entered a plea of not guilty on 11 August 2011 (then, with leave) changed his plea to guilty on 7 November 2011.  He is entitled to a discount for the immediate plea, but too little, if any, discount for the later plea.

[15]   I have concluded that the effective sentence for the two breaches was appropriate.

The two further sentences

[16]     As noted earlier, as a result of an application by the Community Probation Service, the Judge reviewed and cancelled the sentence of community work imposed on 10 December 2010.  He imposed a sentence of three months imprisonment in its place.  He also imposed a further sentence of three months imprisonment which he said, at [11] of the sentencing judgment, was for breaches of community detention.

[17]     Having reviewed the Court file it is apparent, and was acknowledged by both counsel,  that  the  Judge  was  in  error  regarding  the  sentence  for  breaches  of community detention.   The appellant’s breaches of community detention had been dealt with by the Court when, on 10 December 2010, he was sentenced to 358 hours community  work.    Since  then  he  had  completed  the  sentence  of  community detention.

[18]     Counsel agreed that the Judge erred in imposing a further sentence, although they acknowledged that it was plain that confusion had arisen during the sentencing hearing.  They noted that 20 December 2011 was the last sentencing day of 2011, and was therefore particularly busy, with very little time available for consideration of individual matters.

[19]     Regarding the review and cancellation of the sentence of community work, Mr Kilkelly submitted that a sentence of three months imprisonment was too high, and that a sentence of six weeks imprisonment would have been appropriate, given that  224  hours  remained  uncompleted,  and  to  take  account  of  the  appellant’s

previous  history.     Mr  Smith  did  not  contend  that  any  greater  sentence  was appropriate.

Result

[20]     The appeal against sentence is allowed in respect of the sentence of three months imprisonment imposed following review and cancellation of the sentence of community work, and the sentence of three months imprisonment imposed for breaches of community detention, only, as follows:

(a)      The sentence of three months imprisonment imposed following the application to review and cancel the sentence of community work imposed on  10  December 2010  is  quashed and  a sentence of six weeks imprisonment imposed in its place.

(b)The sentences of three months imprisonment (concurrent as between each  other)  imposed  on  each  of  Information  CRN  10012501569,

1570, and 1572 (relating to breaches of community detention) are quashed.

[21]     All three remaining sentences (five months (assault), three months (breaches of supervision) and six weeks (replacement of sentence of community work)) are cumulative.

[22]     I  consider  it  appropriate  to  impose,  as  a  post-release  condition,  that  the appellant undertake and complete any counselling and/or treatment programme as

required by his probation officer.

Andrews  J