IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000134 [2016] NZHC 3130
BETWEEN AARON KYLE GERRARD
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2016 Appearances:
A Bailey for the Appellant
D J Orchard for the RespondentJudgment:
19 December 2016
JUDGMENT OF NATION J
[1] On 23 November 2016, the appellant (Mr Gerrard) was, on an application to cancel his sentence of imprisonment and impose home detention, sentenced to eight months’ home detention.1 Mr Gerrard appeals against that sentence on the basis there was an error in the sentence. He argues that, in fixing the term of the home detention sentence, the Judge should have had regard to his mandatory entitlement to be released once he had served half the prison sentence.
Background
[2] As set out in the submissions of Mr Gerrard’s counsel, Mr Bailey, the
relevant background was as follows:
· 29 April 2016 – the appellant was arrested and remained in custody until sentencing;
1 New Zealand Police v Gerrard [2016] NZDC 24719.
GERRARD v POLICE [2016] NZHC 3130 [19 December 2016]
· 26 July 2016 – the appellant was sentenced to 25 months’ imprisonment
by the District Court;
· 1 November 2016 – this Court allowed the appellant’s sentence appeal and reduced the sentence to 23 months’ imprisonment with leave to apply for home detention;2
· 23 November 2016 – the appellant’s application to substitute the sentence for imprisonment was granted by the District Court. The appellant was re-sentenced to eight months’ home detention; and
· 1 December 2016 – the appellant was arrested for breaching his home detention sentence. He was remanded in custody (and currently remains in custody).
Jurisdiction
[3] Mr Gerrard appeals as of right.3 Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there was an error in the sentence imposed and a different sentence should be imposed. If either element is not satisfied, the appeal court must dismiss the appeal.
[4] On an appeal, the focus is on the correctness of the end result, rather than necessarily the process by which it was reached.
Submissions for appellant
[5] Mr Bailey submitted that this appeal against the length of the sentence of home detention could have real consequences for Mr Gerrard.
[6] At present, Mr Gerrard remains subject to that home detention sentence.4
2 Gerrard v Police [2016] NZHC 2616.
3 Criminal Procedure Act 2011, s 244.
4 Hawkins v Chief Executive, Department of Correction [2015] NZHC 1001 at [17]; Sentencing
Act 2002, s 80Z.
[7] Mr Gerrard is now liable to be resentenced if it is established that he was in breach of the sentence of home detention. The Court may then determine a substitute sentence under s 80F(4)(d) of the Sentencing Act 2002.
[8] In determining any sentence in substitution for a breached sentence of home detention, the District Court must take into account the portion of the original sentence that remains unserved at the time…
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- Gerrard v Police [2016] NZHC 3130
- Case
- [2016] NZHC 3130
- Decision Date
CaseChat Overview and Summary
The Court noted that a sentence of home detention can be imposed only where an offender would otherwise be serving a short-term sentence of imprisonment. While there was no requirement that the term of home detention should be fixed at half the length of the sentence of imprisonment, the Court of Appeal had confirmed that it is the usual practice of sentencing courts to fix terms of home detention at half the length of the sentence of imprisonment that would otherwise have been imposed. In this case, Mr Gerrard had effectively served a significant proportion of the prison sentence that was imposed. The Court concluded there was an error in fixing the term of home detention at eight months and a different sentence should have been imposed. The appeal was allowed and the term of home detention was varied to five months.
The Court's decision allows the District Court to deal with the application currently before it, taking into account the portion of the home detention sentence that remained unserved at the time Mr Gerrard breached the home detention sentence. The rationale for finding the Judge was in error in fixing the term of home detention will also be relevant if the District Court has to consider the term of a sentence of imprisonment that may be imposed as a result of a breach of the sentence of home detention.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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