Hamblin v Police
[2022] NZHC 3055
•22 November 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-443-53
[2022] NZHC 3055
BETWEEN NATHAN ALLAN HAMBLIN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 November 2022 Appearances:
A R Laurenson for the Appellant H Bullock for the Respondent
Judgment:
22 November 2022
JUDGMENT OF PALMER J
Solicitors
C & M Legal, New Plymouth
HAMBLIN v NEW ZEALAND POLICE [2022] NZHC 3055 [22 November 2022]
What happened?
[1] On 4 April 2020, Mr Nathan Hamblin, aged 35, was speeding and driving a car dangerously a car near Inglewood and Waitara. On 5 June 2020, he crashed his car in Egmont Village. In October and November 2020, Mr Hamblin supplied methamphetamine to others. On 18 February 2021, the Police executed a search warrant of Mr Hamblin’s home address and found three grams of methamphetamine, a large number of clear ziplock bags, scales and $350 in cash.
[2] Mr Hamblin faced four charges of supplying methamphetamine, one of possession of methamphetamine for supply and one of supplying cannabis. He also faced several driving charges: failing to stop for red and blue flashing lights; dangerous driving; reckless driving; speeding and careless driving. The methamphetamine offences are all punishable by up to life imprisonment and the cannabis offence by up to eight years’ imprisonment. The driving offences carry lesser penalties, the most serious of which are up to three months’ imprisonment or a $10,000 fine.
[3] Mr Hamblin had previously been sentenced to 10 and a half months’ home detention for supplying methamphetamine. He also has 49 previous convictions, including 11 for driving related offending, two for dishonesty offending, two for lesser drug offending and many for breaching court sentences.
Sentencing indication and reports
[4] On 10 May 2021, in the District Court at New Plymouth, Judge A S Greig gave Mr Hamblin a sentencing indication of about three and a half years’ imprisonment before personal mitigating factors, which he said would probably bring it down to between two years’ and three years’ imprisonment but not less than that. Mr Hamblin accepted the indication and pleaded guilty.
[5] Sentencing was deferred on several occasions to allow Mr Hamblin to complete a Salvation Army drug rehabilitation programme for a third time and to obtain a report on his personal background. On 18 February 2022, Mr Hamblin again appeared before Judge Greig having been discharged from the Salvation Army rehabilitation programme because it considered he needed tighter boundaries and
recommended a stricter programme such as Higher Ground.1 The personal background report was not ready by then and the Judge told Mr Hamblin to return on 8 March 2022, which was subsequently administratively adjourned to 17 March 2022.2 On 17 March 2022, Judge Greig again adjourned the proceedings to enable Mr Hamblin to attempt a rehabilitation programme administered by Gracegate.3 That day the Judge said:
[3] Once you have completed Gracegate, I do not think I am going to sentence you. You have told me that Gracegate prepares the way for Higher Ground, the programme at Higher Ground. So, I will wait to see the outcome of that because it is only completing full and proper rehab that will stop you going to jail.
[4] If you complete full and proper rehab, I will not send you to jail, and I am taking this firm line because you have already had home detention for this type of offending.
[6] The Judge adjourned sentencing to 20 June 2022, and asked counsel for Mr Hamblin to inform the court when Mr Hamblin had moved on to Higher Ground. On 20 June 2022, Judge Greig pushed sentencing back further as Mr Hamblin had just begun at Higher Ground and was not due to graduate before 3 October 2022. The Judge imposed a bail condition requiring that, if he left Higher Ground before that date, Mr Hamblin must return to his former electronically monitored (EM) bail address, reside at there on a 24-hour curfew, and advise the Police of his presence at his home within 24 hours of arriving there.
[7]Corrections has provided several reports in these proceedings:
(a)In August 2021, Corrections’ advice identified that Mr Hamblin showed little remorse around his drug offending, explained his actions as “funding my own habit” and stated that his son made him want to stop. It assessed him as at high risk of reoffending and at medium risk to the community. His partner was also on home detention. Corrections recommended a sentence of imprisonment.
1 Police v Hamblin DC New Plymouth CRI-2021-043-251, 18 February 2022.
2 At [7].
3 Police v Hamblin DC New Plymouth CRI-2021-043-251, 17 March 2022.
(b)In October 2021, Corrections reported that Mr Hamblin had been stood down from the Salvation Army Bridge programme due to confrontational behaviour. He was still assessed as at high risk of reoffending. No issues were recorded with his compliance with EM bail conditions. It suggested home detention may not be a deterrent for future offending and continued to recommend imprisonment.
(c)Corrections’ advice in September 2022 was that it was not clear why he was discharged from Higher Ground but Mr Hamblin told them he was focussed on his rehabilitation, his drug use was no longer an issue and he had an offer of part-time work. Corrections considered that the Clean n Soberside address at which he was staying was not suitable for electronic monitoring due to other occupants being on EM sentences already. Accordingly, Corrections considered he had no address that was suitable for electronic monitoring. It recommended a sentence of supervision and community work.
[8] In a letter dated 13 September 2022, the Community counsellor at Higher Ground noted that, on 24 August 2022, Mr Hamblin had been discharged from the programme into supported living accommodation in the community after undergoing 14 weeks of an 18-week programme of intensive residential treatment with them. Other letters from the program manager around that time suggested that Mr Hamblin had been doing well in his rehabilitation.
[9] Mr Chester Borrows also prepared a detailed and informative report about Mr Hamblin’s personal background and circumstances under s 27 of the Act. Mr Hamblin was brought up as a Jehovah’s Witness, with restrictions on celebrations, and some classes, school trips and camps. Mr Borrows describes Mr Hamblin running away from home as a teenager after an argument with his parents following him being caught with cigarettes. He was expelled from school for smoking and drinking and sacked from work as a 15-year-old for stealing money. He drifted into a methamphetamine habit which he funded by stealing. He could not hold down a job and started dealing drugs with a friend. Mr Borrows says Mr Hamblin “is an obvious
addict, and this is the prime reason he offends”. He suggests further community-based rehabilitation is the only hope of an end to his addition and a stop to further offending.
District Court sentence
[10] On 5 October 2022, Judge Greig sentenced Mr Hamblin.4 He considered Mr Hamblin’s various rehabilitative attempts, including previously completing the Salvation Army course, for which he was given a 15 per cent discount in a drug sentencing in 2018. He noted that Clean N Soberside, where Mr Hamblin was residing, would provide him with accommodation on home detention though without being able to particularly fully in their weekly schedule. But the Judge said:5
The trouble is the pre-sentence report of 23 September that I have just quoted from says that your present address which is at Clean N Soberside is not suitable for an EM sentence because of the existing occupants who are also on it. But I have got to say, Mr Hamblin, I think that you are just wriggling and squirming and trying every reason to pretend you are genuine about rehab. You are trying to shortcut it, you are trying to take an easy way out, and you are just trying to pull the wool over my eyes.
[11] It is not clear whether the Judge considered Mr Borrows’ s 27 report. The Judge adopted a starting point of two and a half years’ imprisonment, gave him credit for his guilty plea and time spent on EM bail, resulting in a sentence of 18 months’ imprisonment.6 Mr Hamblin was also disqualified from driving for 12 months and ordered to pay reparation of $500. The Judge understood there was no available address for a sentence of home detention. And the Judge did not give Mr Hamblin leave to apply for home detention if an address became available, saying:7
I am not going to give you leave to apply for home detention because you had it before for exactly this and, as I say, I do not think in the end you have been genuine about real rehab. You have got a lot of breaches of sentence. You have not complied with the bail conditions that I imposed. I have no confidence that you comply with home detention even if you had an address which, at the moment, you do not.
[12] Mr Hamblin appeals the decision not to convert the end sentence to home detention.
4 Police v Hamblin [2022] NZDC 19687.
5 At [23].
6 At [24].
7 At [25].
Submissions
[13] Mr Laurenson, for Mr Hamblin, submits the Judge erred in declining to convert the sentence to home detention. The Judge failed to take into account the principles in s 80A of the Sentencing Act 2002 and did not give enough weight to the recommendation of home detention in the pre-sentence report. He submits the Judge noted that the address Mr Hamblin was at was not suitable for an EM sentence, but a subsequent letter confirms it was.
[14] Ms Bullock, for the Crown, submits the Judge’s decision was correct, in light of Mr Hamblin previously being sentenced to home detention for similar offending, his concerns about whether Mr Hamblin’s engagement with rehabilitation was genuine and his multiple previous breaches of sentences. She submits the Judge was best-placed to assess whether home detention or imprisonment was appropriate, irrespective of whether there was an available address. Further, the letter confirming the address was suitable came from the programme manager. The Corrections’ pre- sentence report writer who found it was unsuitable was better placed to make that assessment.
Should a different sentence be imposed?
[15] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.8 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.9
[16] Section 7(1)(a)–(h) of the Act identify the purposes for which a Court may sentence an offender:
(a)to hold them accountable for harm done to the victim and community;
8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
(b)to promote a sense of responsibility for and acknowledgement of that harm;
(c)to provide for the interests of the victim;
(d)to provide reparation for the harm done;
(e)to denounce the conduct;
(f)to deter the offenders or others from committing similar offences;
(g)to protect the community from the offender; and
(h)to assist in the offender’s rehabilitation and reintegration.
[17] Section 8 sets out the principles of sentencing which include, at paragraph (g), imposing “the least restrictive outcome that is appropriate in the circumstances”. Section 16 of the Act provides:
16 Sentence of imprisonment
(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case
[18] Section 80I of the Act applies if a court sentences an offender to a short term of imprisonment of 24 months or less and would have sentenced the offender to home detention if a suitable resident had been available. If it applies, the Court is required to grant leave to the offender to apply to the court of first instance to substitute the
sentence of imprisonment for a sentence of home detention if the offender finds a suitable residence at a later date. If leave is granted, the first instance court is required to consider, but not necessarily to grant, home detention.10
[19] I consider it was open to the Judge to consider that no address was available that was suitable for home detention. That was Corrections’ advice. But there was evidence suggesting that Mr Hamblin’s efforts to engage with rehabilitation were persistent, genuine and showed promise. Unlike his previous attempts at rehabilitation, Mr Hamblin’s experience at Higher Ground appears to have been more positive. The path of recovery from addiction can be long and involve many setbacks. But, as Mr Borrows suggests, rehabilitation is the only real way to prevent Mr Hamblin’s future offending. It is not clear whether the Judge read the s 27 report that endorsed a community sentence and rehabilitation as the solution to Mr Hamblin’s offending. I do not consider the Judge gave sufficient weight to the evidence before him that indicated Mr Hamblin had made progress with, and recommended, his rehabilitation. I cannot tell what prompted the Judge’s indication that he considered Mr Hamblin was not genuine in his efforts since no reason was given for that view. Accordingly, I consider the Judge erred in declining to grant Mr Hamblin leave to apply for a sentence of home detention if a suitable address became available.
Result
[20] Under s 80J of the Act, I allow the appeal in respect of the Judge’s decision to decline Mr Hamblin leave to apply to convert the sentence to home detention. I grant Mr Hamblin leave to apply to substitute his sentence of imprisonment for one of home detention under s 80K(1) of the Act, if a suitable address becomes available. If that occurs, under s 80K(4), the District Court will need to consider afresh whether it is satisfied that home detention is appropriate under s 80A. Otherwise, I decline the substantive appeal to convert the sentence to home detention.
Palmer J
10 Papa v New Zealand Police [2019] NZHC 1309.