Harrington v Department of Corrections

[2013] NZHC 3094

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-117

CRI-2013-409-118 [2013] NZHC 3094

BETWEEN

LEANNE HARRINGTON

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	18 November 2013
Counsel:	S G Bailey for Appellant C E Butchard for Respondent
Judgment:	22 November 2013

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

12 pm on the 22nd day of November 2013.

Solicitors:           Serina Bailey Barrister, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent

HARRINGTON v DEPARTMENT OF CORRECTIONS [2013] NZHC 3094 [22 November 2013]

[1]      The  appellant   was   sentenced   to   100   hours   of  community  work   on

13 November 2012, on two charges of failing to answer District Court bail and two charges of driving while her licence was revoked or suspended.   On 15 May 2013 she  failed  without  reasonable  excuse  to  report  to  her  probation  officer.   As  at

27 May 2013 she had completed only 19 hours of the community work sentence.  A charge of breaching a sentence of community work was laid.  She pleaded guilty and was sentenced, on 30 October 2013, to two months community detention and nine months supervision with the special condition that she participate in an alcohol and drugs assessment and complete any recommended intervention to the satisfaction of

the  probation  officer.1      The  probation  officer  had,  in  an  affidavit  filed  for  the

sentencing, applied for the community work sentence to be cancelled and another sentence to be substituted.  The Judge declined the application to cancel the sentence of community work.

[2]      The essential question on this appeal is whether the sentence was manifestly excessive, in the light of the Judge declining to cancel the sentence of community work.

[3]      The appellant presented a difficult sentencing problem for the Judge.   Her record of compliance with community-based sentences, and Court-imposed restrictions, is poor.  She has three prior convictions for breach of community work or equivalent sentence, dating from 1996, 2001 and 2003.  She has one conviction for failing to comply with a prohibition by an enforcement officer in 1999, and three previous charges of failing to answer police and District Court bail in 2002, 2003 and 2010.

[4]      However, her offending has been at the lower end of the scale. Also, much of it is some distance in the past.  In his sentencing remarks, the Judge described the conviction for breach of community work as the “third similar conviction since

2003”.2   As I have noted, the prior convictions for breach of community work were

all prior to 2003.  It appears that the Judge may have had in mind the convictions for failing to answer bail.

1      Probation Service v Harrington DC Christchurch CRI-2013-009-5212, 30 October 2013.

2 At [6].

[5]      The Judge was, rightly, concerned to impose a sentence with a rehabilitative component.    The  sentence  of  nine  months  supervision  was  clearly  designed  to achieve a rehabilitative goal.  That goal was clearly an appropriate one.  However, in the light of the available reports, and in the light of the appellant’s poor record of compliance, the total sentence gives rise to a high probability that the appellant would fail to complete the sentence without further breach.  She remains liable to complete the sentence of community work, which she has already demonstrated an unwillingness or inability to achieve.   Her ability to complete a sentence of community detention  is  also  in  question.    The  Probation  Service  recommended supervision, but also reported on the possibility of community detention.  The report writer doubted the appellant’s ability to comply with such a sentence.

[6]      A stern approach to sentencing was justified.  However, I consider that, if the community work sentence remained in place, the combination of community detention and supervision was excessive, having regard to the criminality involved in the breach of community work charge.   The maximum penalty for that offence is three months imprisonment.   The previous relevant offending does not appear to have been serious.  The appellant was, on two of her previous convictions for breach of a sentence of community work, and on two of her convictions for breach of bail, convicted  and  discharged.   The only previous  penalty imposed  for this  type of offending had been community work.

[7]      I consider that the sentence of community detention and supervision would have been appropriate for the totality of the offending, including that for which the community work had been imposed, if the community work sentence had been cancelled.  There was an application under s 68(2)(b) of the Sentencing Act 2002 to cancel that sentence. The Judge declined to grant that application.

[8]      I consider that the appropriate outcome, to achieve a rehabilitative sentence which is not manifestly excessive, is to uphold the sentence of community detention and supervision, but to cancel the sentence of community work.   The combined sentence of community detention and supervision represents an appropriate penalty for the totality of both the original offending and the subsequent breach of the community work sentence.

[9]      For these reasons, the appeal is allowed, to the extent that the application to cancel the sentence of community work is granted.   The sentence of two months community detention, on the conditions imposed by the Judge, and the sentence of nine months supervision, with the special conditions imposed by the Judge, are upheld.

“A D MacKenzie J”