Hamblin v Police - [2022] NZHC 3055

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamblin v Police

Details

AGLC: Hamblin v Police [2022] NZHC 3055
Case: [2022] NZHC 3055
Decision Date: 22 November 2022

CaseChat Overview and Summary

Nathan Allan Hamblin appeals against his sentence for multiple drug supply and driving offences. The District Court sentenced Hamblin to 18 months’ imprisonment, disqualified him from driving for 12 months and ordered him to pay reparation of $500. Hamblin appeals against the decision not to convert his sentence to home detention. He submits the Judge erred in declining to convert the sentence to home detention and did not give enough weight to the recommendation of home detention in the pre-sentence report. The Crown submits the Judge’s decision was correct, in light of Hamblin previously being sentenced to home detention for similar offending, his concerns about whether Hamblin’s engagement with rehabilitation was genuine and his multiple previous breaches of sentences.

The Court considers it was open to the Judge to consider that no address was available that was suitable for home detention. But there was evidence suggesting that Hamblin’s efforts to engage with rehabilitation were persistent, genuine and showed promise. Unlike his previous attempts at rehabilitation, 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 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 Hamblin’s offending. I cannot tell what prompted the Judge’s indication that he considered 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 Hamblin leave to apply for a sentence of home detention if a suitable address became available.

Under s 80J of the Act, I allow the appeal in respect of the Judge’s decision to decline Hamblin leave to apply to convert the sentence to home detention. I grant 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.

Orders