Hadley v Department of Corrections
[2018] NZHC 2646
•11 October 2018
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2018-412-000024 [2018] NZHC 2646
BETWEEN SLANE JET HADLEY
Appellant
AND
DEPARTMENT OF CORRECTIONS Respondent
CRI-2018-412-000025
BETWEEN SLANE JET HADLEY Appellant
ANDNEW ZEALAND POLICE Respondent
CRI-2018-412-000026
BETWEEN SLANE JET HADLEY Appellant
ANDDEPARTMENT OF CORRECTIONS Defendant
Hearing: 11 October 2018 Appearances:
J A Westgate for Appellant
R D Smith for RespondentJudgment:
11 October 2018
ORAL JUDGMENT OF GENDALL J
HADLEY v DEPARTMENT OF CORRECTIONS [2018] NZHC 2646 [11 October 2018]
Introduction
[1] On 17 August 2018 Judge Connell in the District Court sentenced the appellant to a total of seven months’ imprisonment for breaching his release conditions, breaching his community work and theft. The appellant argues that this sentence was manifestly excessive.
Facts
[2] Turning to the facts in this matter, on 27 June 2017 the appellant was sentenced to one year’s imprisonment for various offending, including two counts of burglary, three counts of dangerous driving and one count of drink driving. Later, the appellant was released from prison on certain release conditions. He also remained subject to a disqualification from driving. Nevertheless, he drove and after being apprehended was sentenced to 50 hours’ community work. He then breached his release conditions and his community work requirement.
[3] In April 2018, Judge Phillips in the District Court sentenced the appellant to three months’ imprisonment for those two offences. This sentence was based on a six months starting point, adjusted for guilty pleas and totality. The Judge refused to cancel the sentence of community work. This further imprisonment sentence began. Then, after being released from prison and still subject to his original release conditions, the appellant again breached release conditions and his sentence of community work. This gave rise to his current charges.
[4] The appellant was also charged with one count of theft. This related to an event which occurred on Thursday, 24 May 2018, when the appellant took alcohol valued at
$30.99 without paying. He took the alcohol home and consumed it. The appellant pleaded guilty in the District Court to all three charges.
District Court decision
[5] Turning now to the District Court decision under appeal, in the District Court Judge Connell considered that as this was the second occasion on which the appellant had breached the same release conditions, his sentence must be an increase on the first.
He took a starting point of eight months and subtracted two months for the early guilty plea. The Judge sentenced the appellant to a concurrent sentence of three months for breaching his community work. He also granted Probation’s application to cancel that sentence. The appellant had not done any of that sentence. The Judge then took a starting point of six weeks for the theft charge. After a reduction for his guilty plea on this theft charge, the Judge imposed a one month sentence of imprisonment. This was to be served cumulatively on the sentences for the other offending. As I understand it, he may also have ordered reparation.
Principles on appeal
[6] Turning now to the principles on appeal, appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 It is only appropriate for this Court to intervene and substitute its owns views if the sentence being appealed is manifestly excessive and not justified by the relevant sentencing principles.2
Submissions
Appellant’s submissions
[7] Turning now to the appellant’s submissions on this appeal, Mr Westgate for the appellant contends that the overall sentence here of seven months’ imprisonment was manifestly excessive. He argues that it should have been no more than five months. He submits that the eight months starting point for breaching the appellant’s release conditions was too high and argues that a starting point of six months was sufficient and would have been double what the appellant had received previously.
Respondent’s submissions
[8] Turning now to the respondent’s submissions, Mr Smith for the respondent contends that the starting point adopted of eight months’ imprisonment, although stern,
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Ripia v R [2011] NZCA 101 at [15].
was available to Judge Connell in the context of the appellant’s sustained and ongoing breaches of his release conditions and community work. In setting the starting point, the Judge also took into account the appellant’s history of non-compliance.
[9] Mr Smith notes, too, that the appellant has been found to be at a high risk of further offending. In a decision of this Court, Johnson v Department of Corrections3 the appellant challenged a sentence a sentence of six months’ imprisonment with respect to two charges of breaking release conditions. In that case Allan J stated that parole conditions breached by high risk offenders would generally require a firm response from the Court.
[10] Before me, Mr Smith argued, too, that the appellant has also had the benefit here of a sentence of community work imposed on a charge of driving while disqualified being cancelled without a cumulative sentence of imprisonment being substituted.
[11] Mr Smith also referred me to the decision of the Court of Appeal in Morgan v R4 where it was made clear that there is no mathematical formula as to how a sentence of community work might be converted to imprisonment. But in that case the Court substituted three months’ imprisonment in place of a sentence of 150 hours’ community work. Mr Smith contends, therefore, based upon this decision in Morgan that a cumulative sentence of one month was available in the present case.
[12] In conclusion, Mr Smith maintains that, while at the stern end, the starting point of eight months imprisonment was available here because it effectively took into account a breach of two different types of sentence, the appellant’s earlier history of breaches and the cancellation of the sentence of community work. Accordingly, he maintains the sentence was not manifestly excessive.
[13] Turning to my analysis in this matter, in a 2010 decision in this Court, McLean v Police5 the sentencing judge had taken a starting point of 12 months’ imprisonment for two breaches of release conditions, being Mr McLean’s fourth and fifth offences
3 Johnson v Department of Corrections HC Hamilton, 13 April 2010, at [23].
4 Morgan v R [2008] NZCA 232.
5 McLean v Police HC Invercargill, 1 October 2007.
of that type. In those circumstances, John Hansen J found that, while very stern and at the top of the range available for the particular circumstances of this offence,
12 months’ imprisonment was not so stern as to be manifestly excessive.
[14] I consider when looking at all the circumstances of the present case and when considering the totality of the appellant’s offending here, excluding the theft, a starting point of eight months, although stern, is within the available range. A sentence of one month could have been imposed in place of the community work and a seven month sentence, in my view, is not excessive to reflect repeated breaches of both release conditions and community work.
[15] The one month cumulative sentence for theft was available. As I understand it, this is not disputed by the appellant.
[16] For all these reasons, I reach the conclusion that the overall sentence imposed was not manifestly excessive when looking at the totality of the appellant’s offending here. This appeal is dismissed.
...................................................
Gendall J
Solicitors:
John Westgate, Barrister, Dunedin
R P Bates, Crown Solicitor, Dunedin