Goddard v Police HC Christchurch CRI 2011-409-000086

[2011] NZHC 1848

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-409-000086
CRI 2011-409-000087

CRI 2011-409-000110

MICHAEL ANTHONY GODDARD

Appellant

v

POLICE

Respondent

Hearing:         10 November 2011

Counsel:         P Watts for Appellant

N Robson for Respondent

Judgment:      10 November 2011

JUDGMENT OF FOGARTY J

[1]      This is an appeal against sentence.  The appellant was serving a sentence of two and a half months’ home detention and 150 hours’ community work and ordered to pay $148 in reparation having pleaded guilty to charges of burglary, theft and unlawfully being in a yard.  He is 20 years old.

[2]      On 7 September he pleaded guilty to breach of a sentence of home detention by deviating from the approved route while returning home from doing community work.  The facts were that while cycling home along the approved route he hopped off his bike and went into a DVD store where he picked up three rental DVDs before

completing his journey.

GODDARD V POLICE HC CHCH CRI 2011-409-000086 10 November 2011

[3]      Judge Garland cancelled the two and a half months’ home detention and imposed a new sentence of four and a half months’ home detention with a condition that Mr Goddard was not to consume alcohol.

[4]      Associated with this incident was that Mr Goddard spent, I am told, 16 days in jail until he was granted bail by Toogood J on 29 September last.

[5]      This application is confined to Judge Garland’s resentencing.

[6]      The first argument Mr Watts had is that Judge Garland did not have the power to resentence because there was no application made.  The probation officer’s report before Judge Garland, I am told, (due to earthquake ongoing complications I do not have all the papers) was that the Probation Officer recommended an increase in sentence in his report.  I would take that as substantive application for a change in sentence and I proceed to go to the merits of whether or not the sentence should be altered.

[7]      The deviation from the approved route to pick up three rental DVDs is an extremely minor matter.   I would have thought normally that a young man would have obtained consent from a Probation Officer to rent DVDs while under home detention.  I infer that there is some kind of niggle going on between Mr Goddard and his probation officer.  That is confirmed from the bar by Mr Watts.   Apparently Mr Goddard has an attitude problem.

[8]      I am also informed from the bar that this young man has spent 16 days in jail and that has been found by Toogood J to be without jurisdiction.  It seems to me that that period of time in jail needs to be brought into account now.  I should say that I can see no justification  on the facts of this case for the sentence being almost doubled.

[9]      Mr Watts seeks an order that in all the circumstances the appeal be allowed by entering a conviction and discharge on the breach of sentence of home detention which is an offence under s 80S of the Sentencing Act 2002.  I agree that this is the appropriate result.

[10]     The appeal is allowed by setting aside the decision of Judge Garland altering the  sentence,  reinstating  the  original  sentence,  and  entering  a  conviction  and discharge on the breach of the sentence of home detention.  The consequence of this is important.   It means that the two month period of home detention will have expired.   I am not informed but Mr Goddard will still have to complete, if he has not completed, the other two limbs of the sentence, that is, 150 hours of community work and paying $148 in reparation.

Solicitors:

P Watts, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent