Hemingway v Department of Corrections

[2025] NZHC 3283

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2025-485-78

[2025] NZHC 3283

BETWEEN

GARY MARTIN HEMINGWAY

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

30 October 2025

Appearances:

C A Brook for Appellant

S C Carter and F J Beaton for Respondent

Judgment:

30 October 2025

JUDGMENT OF McQUEEN J

[1]                 Mr Hemingway was sentenced to 14 days’ imprisonment on a single charge of breaching community work.1 He appeals against that sentence on the basis it is manifestly excessive, and a different sentence should be imposed.

Background

[2]                 Mr Hemingway was sentenced to 70 hours community work on 3 February 2025 following conviction for breach of community work. He failed to report to his probation officer as required. A charge under s 71(1)(a) of the Sentencing Act 2002 was laid against him. The matter progressed through the District Court. In May 2025, a pre-sentence report was ordered by the Court.

[3]                 The pre-sentence report records that as at 27 June 2025, Mr Hemingway had started doing community work and had about 64 hours still to complete (which

1      Department of Corrections v Hemingway [2025] NZDC 24712.

HEMINGWAY v DEPARTMENT OF CORRECTIONS [2025] NZHC 3283 [30 October 2025]

Mr Hemingway had indicated he would complete). The report notes Mr Hemingway struggles with substance abuse and this may have contributed to him being unable to attend community work. The report recommended a short remand period to allow  Mr Hemingway to complete the remaining community work hours and allow an EM address to be canvassed. In the alternative, the report proposed a supervision order with a special condition to complete an assessment for alcohol and drug treatment.

[4]                 After appearances in the District  Court  in  July,  August  and  September,  Mr Hemingway appeared in the Wellington  District Court before Judge Greig on   23 October 2025. At this point, Mr Hemingway had completed 50 hours of the sentence of 70 hours community work.

[5]                 The Department of Corrections (Corrections) were seeking cancellation of the sentence of community work and possible substitution with a sentence of community detention  but  agreed  to  the  matter  being  adjourned  for  two  weeks  to  allow  Mr Hemingway  one  final  opportunity  to  complete   the   remaining   20 hours.  Mr Hemingway was committed to completing the remaining hours within the next week.

[6]                 Judge Greig  declined  to  adjourn   the   matter   and   instead   sentenced   Mr Hemingway, who was represented only by a duty lawyer (Ms Brook, who has since been assigned as counsel for this appeal), to 14 days’ imprisonment. The Judge did not cancel the sentence of community work, advising Mr Hemingway that he would still have to complete the final 20 hours on release.

[7]                 A notice of appeal  to  this  Court  was  filed  immediately.  On  the  same  day Gendall J granted Mr Hemingway bail pending appeal by consent, on the papers.2

Relevant law

[8]                 Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. Specifically,

2      Hemingway v Department of Corrections HC Wellington CIV-2025-485-78, 23 October 2025 (Minute of Gendall J).

this Court may only allow an appeal against sentence if it is satisfied there has been an error in the imposition of the sentence, and a different sentence should be imposed.3

Discussion

[9]                 Counsel for Mr Hemingway and for Corrections filed a joint memorandum in anticipation of the hearing. Corrections does not dispute that in the circumstances the sentence is disproportionately severe, and a different sentence should be imposed. The parties proposed that the appropriate disposition of the appeal would be to remit the matter to the District Court for resentencing.4

[10]              At the hearing, counsel for the parties proposed two alternative options for the Court if it was minded to grant the appeal. The first was to remit the matter to the District  Court  for  re-sentencing  in  two  weeks’  time,  with  the  intention  that  Mr Hemingway would have completed the outstanding 20 hours of community work by that time. The second was that this Court deal with the matter today, setting aside the sentence of 14 days’ imprisonment and imposing a sentence of supervision with special conditions.

[11]              While Mr Hemingway’s compliance with the sentence of community work has undoubtedly been poor, it is apparent that his addiction issues underpin this. Corrections accept that a more constructive approach in these circumstances is supervision with special conditions to respond to these issues.

[12]              In the circumstances, I am satisfied that a sentence of 14 days’ imprisonment for a breach of community work is manifestly excessive given the underlying offending only warranted a sentence of 70 hours community work.

[13]              I am also satisfied that I should set aside the sentence of imprisonment and impose another sentence. Such an approach brings finality to this matter and avoids requiring further engagement of busy counsel and District Court Judges by remitting the matter back to the District Court.

3      Criminal Procedure Act 2011, s 250(2) and subs (3).

4      Section 251(2)(c). I issued a Minute dated 28 October 2025 asking that counsel be prepared to address me on whether this course of action was necessary at the appeal hearing.

Result

[14]The appeal is allowed.5

[15]              I set aside the sentence given by Judge Greig on 23 October 2025 of 14 days’ imprisonment and impose a sentence of twelve months’ supervision on standard conditions and with the following special conditions:

(a)To attend an assessment for alcohol/other drugs (AOD) as directed by a Probation Officer. To attend and complete any counselling, treatment, or programme, including residential rehabilitation, as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(b)To undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.

[16]              I record for completeness that Mr Hemingway is to complete the 20 hours of community work that remain outstanding in relation to the sentence of 70 hours community work imposed on 3 February 2025. As I indicated to Mr Hemingway (who was present at the hearing), it would be prudent for him to do this promptly.

McQueen J

Solicitors:

Luke Cunningham & Clere, Wellington for Respondent

5      I indicated at the hearing that the appeal was allowed and a sentence of supervision on special conditions would be imposed, with the reasons for granting the appeal and the special conditions to be set out in my written judgment.