Hilton v Police

[2013] NZHC 60

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-59 [2013] NZHC 60

KELLY GRACE HILTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February 2013

Appearances: K L McHugh for the Appellant

M Mika for the Respondent

Judgment:      5 February 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence of District Court Judge M J Behrens QC, delivered on 15 November 2012.   He was sentencing two prisoners on charges of possession of cannabis for supply, selling cannabis x 2 and a charge of cultivation.  It is not necessary to get into the detail of the gravity of the offending because, as I have indicated to counsel, I have no difficulty with the analysis of the Judge who took a starting point of 2 years and 6 months, gave credit for remorse, and arrived at an end sentence of 22 months.  Then, in respect of both defendants, he imposed a sentence of home detention for 11 months.   He took into account that in the case of the appellant, she would be living with her brother and his wife with two young

children.

HILTON V NEW ZEALAND POLICE HC INV CRI-2012-425-59 [5 February 2013]

[2]      Although the Judge did not explain, it is obvious that he applied a common practice of dividing the indicative end sentence of 22 months in two to reduce it to

11 months.   This is a practice which the Courts have said needs to be done in context.   Certainly it is a practice that I regularly follow.   But in each case it is important to have regard to the particular circumstances.  When a division into two produces a home detention sentence of somewhere between say 7 and 9 months, the sentencing Judge is usually reasonably comfortable.

[3]      I regard a home detention sentence of 11 months as a very difficult sentence. Neither counsel before me were able to recall a home detention sentence of 11 months.  In these circumstances, I think that 11 months is too long.  It is going to be a particular strain on the family relationships of her brother and his wife with young children in the house.   For that reason, I think that, agreeing with the sentencing Judge that  there ought to be a sentence of home detention, I can intervene on the grounds that he has not taken sufficient account of the difficulty of serving that sentence on all concerned.

[4]      For these reasons, I am intervening on appeal, and substituting a sentence of

9 months.

[5]      There was also a condition that the appellant was not to consume or be in possession of alcohol or drugs for the term of home detention.  There is no evidence that alcohol had in any way contributed to this offending.  It is important that home detention is not some form of solitary confinement, or confinement to an extremely small social range, so visitors are obviously going to be able to come to the house.  I do not see any difficulty in alcohol being served in the house, and the appellant being able to have a glass of wine with a guest.  So I am amending that condition to: “You are not consume or be in possession of drugs for the term of the home detention.”

[6]      The other conditions continue.

[7]      The sentence of home detention has been suspended pending this appeal.

[8]      Allowing for the imminence of Waitangi, you are to travel on Thursday to the address of 20 Hanning Road, Alexandra, and await the arrival of the probation officer and security officer.   You are to live there and not move address without permission of the probation officer.

Solicitors:

AWS Legal, DX YA90008, Invercargill –  [email protected]

Preston Russell Law, PO Box 827, Invercargill