H v R HC Auckland Cri-2007-092-6572

[2009] NZHC 2075

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-092-006572

H

Applicant

v

THE QUEEN

Respondent

Hearing:         6 November 2009

Appearances: A Comeskey for Applicant

S L McColgan for Respondent

Judgment:      6 November 2009

ORAL JUDGMENT OF WHITE J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland 1140

C Comeskey, PO Box 4304, Shortland Street, Auckland 1140

H V R HC AK CRI-2007-092-006572  6 November 2009

[1]      This is an application by Mr H   under s 80F of the Sentencing Act

2002 for a variation of his sentence of seven months’ home detention.  He seeks a reduction of the sentence by some 14 days so he can leave New Zealand on 10

November 2009 to attend the wedding of his niece in Thailand on 14 November

2009.  He also seeks to substitute community work for the 14 days.

[2]      The  background  to  this  matter  is  that  Mr  H    pleaded  guilty  to permitting premises  to  be used  for  the manufacturing of  methamphetamine  and possession of equipment capable of being used to manufacture methamphetamine. He was sentenced by Stevens J on 22 April 2009 to a sentence of seven months’ home detention.   It is apparent from the sentencing notes of Stevens J that consideration had been given to a term of imprisonment with a starting joint of two years and an end sentence of one year and two months.  Stevens J also rejected a proposal for a sentence of community detention and community work.  He decided that a sentence of that nature would not meet the purposes and principles of sentencing.

[3]      It is to be noted that the seven month home detention sentence does not come to an end at the expiration of that period as under s 80N(2)(a) of the Act post- detention conditions apply to the offender for 12 months from the detention end date unless the Court specifies otherwise.  The Court did not do so in the present case.

[4]      Mr H  , through his counsel, asks the Court to exercise its jurisdiction and discretion under s 80F(1)(d) of the Sentencing Act 2002 to permit him to travel to Thailand for the wedding of his niece and hence to have a variation or cancellation of the full term of the home detention sentence.  The statutory provision provides:

80FApplication for variation or cancellation of sentence of home detention

(1)An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that –

(a)the offender is unable to comply, or has failed to comply, with any detention conditions:

(b)any programme to which the offender is subject is no longer available or suitable for the offender:

(c)the  home  detention  residence  is  no  longer  available  or suitable because of a change in circumstances:

(d)having regard  to any changes  in  circumstances  since  the sentence was imposed and to the manner in which the offender has responded to the sentence, –

(i)the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation   of   any   special   conditions,   or   the imposition of additional special conditions; or

(ii)      the   continuation   of   the   sentence   is   no   longer necessary in the interests of the community or the offender.

[5]      In support of the application Mr Comeskey referred to a passage in the text by Hall on Sentencing in New Zealand and the discussion there of the meaning of the expression “change of circumstances”:

“No exhaustive definition has been attempted in the cases.   Presumably serious  illness  or  injury  or  other  circumstances  beyond  the  offender’s control, making compliance with conditions of the sentence impossible or unnecessary, or continued stay at the home detention residence impossible, would fall within the ambit of the expression” [Emphasis Added]

[6]      It was submitted that the provision was deliberately intended to have a broad application and allows the Court to consider all manner of circumstances rather than be restricted by a rigid definition as to what constitutes a sufficient change in an offender’s circumstances.  It was submitted that the applicant requires the variation to travel to the wedding of his niece in Thailand whom he has supported from a young age.  Steps to re-arrange the date for the wedding have not been successful and because the wedding is towards the end of the home detention period and he has satisfactorily served a substantial part of his sentence, he seeks the indulgence of the Court  to  have  community  work  imposed  on  him  to  reflect  the  change  of circumstances and the remaining period of home detention left to serve.

[7]      The application is opposed by the Department of Corrections and there is a report from a probation officer dated 6 November 2009 explaining why the application is opposed.  It is recorded that while Mr H   has demonstrated a good level of motivation to comply with his sentence of home detention and has not breached his conditions to date, he has at the same time struggled to accommodate

and accept the restrictive nature of the sentence and has been issued with two written warnings regarding deviation from the time of his curfews.  Plausible explanations were provided by Mr H   for those deviations.

[8]      It appears also from the probation officer’s report that Mr H   informed the officer that he was aware of the wish to travel to Thailand to attend the wedding in September this year.  The application was, however, not made until 30 October

2009.  The opposition to the application by the Department of Corrections has been supported by both written and oral submissions made by the Crown.   The written submissions for the Crown have addressed issues of the Court’s jurisdiction to grant an application of this nature.

[9]     In his oral submissions today Mr McColgan summarised the matter by submitting that Mr H   had been sentenced to seven months’ home detention by Stevens J with the subsequent post-detention conditions and that the application before the Court was in essence an application to vary the sentence of Stevens J.  It was submitted that the provisions of s 80F(1)(d) were not designed to enable the Court to vary a sentence in this way.

[10]     I agree that in the context of the home detention regime, enacted as Subpart

2A of the Sentencing Act 2002, the provisions of s 80F(1)(d) were not designed to enable an offender in essence to obtain a variation of a sentence of home detention. The expression “changes in circumstances” envisages matters affecting the offender directly of such a nature that the consequences referred to in sub-paragraphs (i) and (ii) might be brought into play.  That is not the case here where all the applicant is seeking is the Court’s indulgence to travel to Thailand for a family wedding which, if permitted, would effectively result in a variation of the sentence imposed by Stevens J.

[11]     I  do  not  consider  that  there  has  been  a  “change  of  circumstances”  as contemplated  by  the  statutory  provision  and  I  therefore  decline  to  grant  the

application in this case.

D J White J