Harnett v Police no.2
[2012] NZHC 1225
•1 June 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2012-463-12 [2012] NZHC 1225
BETWEEN AARON GRANT HARNETT Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 1 June 2012 (by telephone) Counsel: M Hine for Appellant
C Macklin for Respondent
Judgment: 1 June 2012
(ORAL) JUDGMENT (NO. 2) OF HEATH J
Solicitors:
Crown Solicitor, Rotorua
Counsel:M Hine, Rotorua
HARNETT V NEW ZEALAND POLICE HC TAU CRI 2012-463-12 [1 June 2012]
[1] Mr Harnett appeals against a sentence of community work imposed by Judge Moore in the District Court at Rotorua on 14 December 2011.[1] A period of 75 hours’ community work was imposed, on a single charge of common assault.
[1] Police v Harnett DC Rotorua CRI 2011-063-5578, 14 December 2011.
[2] In sentencing Mr Harnett, Judge Moore expressed concerns about the Court’s ability to deal adequately with people who come often before a criminal Court with a background of mental health problems.[2] It is clear that the Judge saw little option but to impose a sentence of community work, in the circumstances with which he was faced. The Judge said:
[2] Ibid, para [1].
[2] Mr Harnett comes from a family in which there are others who have the same sort of health issues as he is. In other words, there is likely to be a genetic component. The circumstances which gave rise to this case and from what counsel has told me, I suspect which have given rise to many of the other charges he has faced over the years, point to the need for him not to be living in an institutional situation but to be living in a supervised community and one in which there is a measure of oversight to ensure that people keep taking their medication when they could and get help when the signs become apparent that they are starting to get unstable. In the absence of that sort of structure which is really a half way house between the way the mental health system used to be and the way it is now. Inevitably people with his problems, from time to time are going to interact with other members of the community in ways that cause community concern.
[3] Mr Harnett is a man with a long history of trouble that has got him before the Court. Counsel complains that the police do not waste much time in bringing him to Court but when I look at his list I would think they get publicly criticised to a very high degree if they took any other approach because he has now got a list that runs into the ninth page. It is full of violence, threatening behaviour, breaching protection orders, trespass; a lot of that. He got a suspended sentence in April of last year for breaching a protection order. I am asked to repeat that message. Before that, he was on intensive supervision for male assaults female and breaching a protection order. He has had community work and there are convictions for breaching that.
[4] He has pleaded guilty to a Crimes Act assault, the circumstances of which illustrate the problem I started off by referring to. There was a family dispute. It started off with an argument that seemed to involve his mother and his aunt. He has got the strongest voice and quite clearly a neighbour became concerned and rightly so. So initially they tried to tell him not to yell at his mother. Although I doubt that anything specific was said on the topic, really not to break the peace of the community. So then there is a challenge and he goes inside and gets a knife and threatens the neighbour
with it. She locked the door and called the police. He denied producing a knife but he admitted confronting her. ...
[3] This appeal was first called before me on 23 April 2012. At that stage it was, at least in form, an appeal against a subsequent decision by Judge Weir that refused to vary the sentence of community work.[3] Mr Harnett’s position had been that his existing medical condition rendered a sentence of community work, such that he could not fulfil its terms adequately.
[3] Harnett v Police [2012] NZHC 751 at para [8].
[4] I adjourned the appeal to obtain more information about Mr Harnett’s medical condition. The same concern about the inadequacy of such information had been expressed earlier by Simon France J, when the appeal came before him on 14
March 2012.[4]
[4] Harnett v Police HC Rotorua CRI 2012-463-12, 14 March 2012
[5] I called for a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, for the purpose of determining the type and length of sentence that might be imposed. In response, I have had the benefit of an extremely helpful report from Dr Rees Tapsell, who examined Mr Harnett on 7 May 2012.
[6] The psychiatric report confirms that Mr Harnett has been diagnosed with bi- polar mood disorder. He is currently on medication to manage that condition. Notwithstanding the nature of the disorder and the medication taken by Mr Harnett to manage it, Dr Tapsell did not believe that it was of sufficient intensity or severity to impair seriously Mr Harnett’s ability either to care for himself or to cause him to be a serious risk of harm to himself or otherwise. Nevertheless, Dr Tapsell expressed the view that it would be helpful for Mr Harnett to be referred back to secondary mental health services for further review; in particular a review of his current regime of medication.
[7] Dr Tapsell, on the basis of his findings, accepted that the Court may see no obvious reason as to why Mr Harnett could not complete a sentence of community work. However, it is clear from his report that some form of sentence that would
enable Mr Harnett’s underlying mental health problems to be addressed more
specifically might better suit the needs both of Mr Harnett and the community.
[8] I am satisfied that a rehabilitative sentence is required in the circumstances. In those circumstances, I do not consider that the sentence of community work is appropriate to deal with the underlying nature and reasons for the offending. In my view, given the information provided by Dr Tapsell, a sentence of intensive supervision is more appropriate.
[9] For the purposes of s 54C of the Sentencing Act 2002, I have formed the view that a sentence of intensive supervision would reduce the likelihood of further offending through Mr Harnett’s rehabilitation and reintegration into the community. I have also reached the view that the nature of Mr Harnett’s rehabilitative needs require the imposition of conditions for a period longer than 12 months.
[10] While Mr Hine, for Mr Harnett, has expressed some concern about the length of any term of intensive supervision, due to the fact that Mr Harnett may wish to relocate to another city in the future, one of the standard conditions of intensive supervision allows a person to change residential address and move to a place in another probation area, as long as there is prior written consent from a probation
officer.[5]
[5] Sentencing Act 2002, s 54F(1)(d).
[11] In my view, the needs of Mr Harnett and the community are best served by a sentence of intensive supervision of two years. That sentence will be served on the standard conditions set out in s 54F of the Act. In addition, there will be a special condition imposed that Mr Harnett attend any psychiatric or other counselling or assessment that maybe recommended by the probation officer.
[12] I impose the special condition because I am satisfied that there is a significant risk that Mr Harnett will reoffend. Also, I am satisfied that standard conditions alone would not adequately reduce that risk but the undertaking of the programme would likely do so.[6] In reaching those conclusions, I have formed the view that
[6] Ibid, s 54G
Mr Harnett’s previous convictions evidence a risk of reoffending that is higher than
that appearing on the face of Dr Tapsell’s report.[7]
[7] See para [6] above.
[13] The application for leave to extend time to appeal is granted. The appeal against sentence is allowed. The sentence of community work is quashed. A sentence of two years’ intensive supervision is imposed, on standard conditions and
the special condition to which I have referred.[8]
[8] See para [11] above
P R Heath J
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