Grafton v Police HC Christchurch CRI 2010-409-175

[2010] NZHC 1943

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000175

ANTHONY TREVOR GRAFTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 October 2010

Counsel:         S G Bailey for Appellant

M A V Raj for Respondent

Judgment:      28 October 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This  appeal  is  directed  solely to  the duration  of  a  sentence  of  intensive supervision.  The appellant was sentenced to two years intensive supervision which is the maximum term permissible in relation to this community-based  sentence. Mrs Bailey challenges the sentence on the basis that its duration is inappropriate.

[2]      The appellant appeared before Judge Neave on 31 August in relation to a raft of charges.  There was one of wilful trespass relating to September 2009, an assault in November 2009 charged under the Crimes Act where the appellant had pushed the

complainant to the ground causing some superficial injuries.

ANTHONY TREVOR GRAFTON V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000175  28 October

2010

[3]      There were then two further assaults charged under the Summary Offences Act committed in December 2009 and May 2010 where the appellant had, on two occasions, punched pedestrians in the central city area.   There was a breach of intensive supervision on 4 March 2010 and a failure to supply particulars to the police in April.  If that was not enough there were also three charges of breaching a liquor ban by consuming alcohol in the central city area.

[4]      As anyone might gather from that chronicle of offences, the appellant has drug and alcohol problems.   He is a man aged 40 years of age who has a very extensive list of previous convictions.  The pre-sentence report confirms the cause of his offending being his transient lifestyle and his addiction issues.

[5]      As it happened the appellant was remanded in custody for about 10 weeks prior to the imposition of sentence.   However, he was then released on bail on

2 August at which time a bed was available which enabled him to commence a residential treatment course at Nova Lodge in Templeton.   This, I am told, is an accredited institution which provides residential care and treatment to people having addiction problems.

[6]      It was on 31 August that the appellant appeared before Judge Neave and was sentenced.  The Judge rightly noted that there were two sentencing options.  One was a term of imprisonment which, the Judge said, would at least achieve the end that the appellant was out of circulation for a limited time and therefore unable to offend. The other was intensive supervision as recommended in the pre-sentence report and which was, in a sense, confirmed as appropriate on account of the fact that the appellant had spent the best part of a month in the Nova Lodge programme.  The Judge saw this as the preferable option since it presented as one last chance to break the appellant’s cycle of offending.   He therefore, in imposing sentence, convicted and discharged the appellant in relation to the breaches of the liquor ban and said this:

In respect of all other matters you are convicted and sentenced to two years intensive supervision with the special conditions being those set out in the presentence report.

That special condition is:

That the appellant is to remain at Nova Lodge and abide by the rules and regulations  until  such  time  as  the  facilitators  and  his  probation  officer believe he is ready to reintegrate into the community.

[7]      Unusually, I think, the report writer did not recommend the duration of a sentence of intensive supervision which was being recommended.   The report did include observations to the effect that the programme at Nova Lodge would last for at least six  months, following which there  would be a need for  a plan for the appellant’s reintegration back into society.  But these observations aside, no specific length of sentence was referred to.  Nor did Ms Bailey, in making submissions in the District Court, specifically refer to the length of the sentence.  She had assumed that it would be tailored with reference to the duration of the Nova Lodge programme, coupled with a period for reintegration back into society assuming, of course, that the appellant does not breach the rules to which he is subject and, hence, breach the terms of his sentence.  Counsel submitted that the appropriate term was 12 months or perhaps a little longer to allow for completion of the programme, together with a reintegration period.

[8]      The  point  was  also  made  that  the  appellant  was  partway  through  the treatment programme at the time of sentencing, including on account of the period he had served in prison when he underwent, effectively, informal detoxification.

[9]      Submissions were also advanced directed to the proposition that the sentence of two years is manifestly excessive given the likely term of imprisonment which could have been imposed and given the 10 weeks, about, that the appellant had already spent on remand.  I prefer not to view the matter in those terms.  To my mind the real question is: what was the appropriate term of a sentence of intensive supervision, given the appellant’s situation and the programme which he had commenced prior to the sentencing date.

[10]     Despite  everything  that  Ms  Raj  has  said  in  support  of  the  two  month sentence, my impression is that this aspect was not sufficiently thought through in the District Court.  Neither the report nor the submissions, it appears, dealt with the duration of the sentence.  I am satisfied that a sentence duration of two years has the

potential to be frustrating and self-defeating.   I doubt that the pre-sentence report writer would have recommended a two year term.  I consider that 15 months is as much as is appropriate in order to provide both for completion of the Nova Lodge residential programme and an appreciable buffer after the appellant’s release back into the community (if all goes well).

[11]     Accordingly, for these reasons, the appeal is allowed to the extent that the duration of the sentence is reduced from 2 years to 15 months.

Solicitors:

Serina Bailey Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent