Hopkins v Department of Corrections HC Auckland CRI-2011-404-000319

[2011] NZHC 1900

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000319

BETWEEN  BRIAN STUART HOPKINS Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:         7 November 2011

Appearances: J J Corby for Appellant

J M Blythe for Respondent

Judgment:      9 November 2011 at 3:00 PM

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 November 2011 at 3:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date......................................

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – J Blythe

Counsel:             J J Corby, P O Box 105105495, Auckland 1143

Fax: [phone] – Email: [email protected]

HOPKINS V DEPT OF CORRECTIONS HC AK CRI-2011-404-000319 9 November 2011

[1]      The appellant, Brian Stuart Hopkins, appeals the sentence imposed by Judge Everitt of three months detention and 100 hours community work for breach of home detention conditions.   The grounds of the appeal are that the District Court Judge relied on matters that were not directly relevant to the breach and that the sentence is manifestly excessive.

[2]      Mr Hopkins’ appeal is brought under s 121 of the Summary Proceedings Act

1957, under which this Court may confirm, quash or vary a sentence if the sentence is (amongst other things) clearly excessive.  In determining whether this criterion is satisfied it is the end result that matters.  A minor error by a judge which has no effect on the appropriateness of the ultimate sentence will not affect the sentence.

[3]      At the time of the breach Mr Hopkins was serving a term of six months home detention for a variety of offences, mostly involving dishonesty.  In March 2011 he received a written warning for leaving his property and a subsequent final written warning for failing to follow a lawful direction.  The breach that ultimately led to his conviction related to his failure to report to the Community Probation Service on 16

May 2011 as directed.

[4]      In sentencing, the Judge said:

[2]       Mr Hopkins is one of the most experienced persons at breaching Court orders that has come before the Court for some time.   I am extremely surprised that he should ever have been given home detention when having been sentenced to a term of imprisonment for breaching home detention in March last year or thereabouts.

[3]       Again  he  has  manipulated  the  system  with  absences  from  his certified address as set out in page 3 of the probation officer’s report.  He told the probation officer that he had been undergoing treatment at Wai Health but when the probation officer contacted that organisation Mr Hopkins’ account of his attendance was fudged by that organisation.  That is how we all read that remark of the probation officer and I found that somewhat disturbing …

[5]      The reference to the attendance at Wai Health relates to incidents that post- dated the offending.  These were incidents in which Wai Health’s confirmation as to his  attendance  at  counselling  sessions  did  not  match  his  known  departures  and returns as recorded by the electronic monitoring company.  They were drawn from a pre-sentence  report  which  referred  to  these  incidents  and  commented  that  “No

charges have been laid in regards to the above matters; however this could be taken

into consideration when canvassing sentence options”.

[6]      Clearly,  the  Judge  should  not  have  taken  these  matters  into  account. Although highly suspicious they had not been properly investigated, had not resulted in any charge and were unrelated to the offending for which Mr Hopkins had been convicted.  The real issue is whether the sentence imposed was manifestly excessive. Ms Blythe, for the Department, submitted that it was within the range open to the Judge and, indeed, looking at other similar cases could actually be regarded as

lenient.[1]

[1] Nash v Police HC Christchurch CRI-2008-409-000107-109, 17 July 2007; Pahi v Police HC Christchurch CRI-2008-409-000102, 10 July 2008.

[7]      Mr Hopkins’ breach occurred only days before the completion of his home detention sentence.  He offered as an explanation for the offending the fact that he was tired from the night before when an electronic monitoring representative had been working on the monitoring unit late into the previous evening.  This is a fairly lame excuse for breaching a condition of home detention.   On the other hand, it could hardly be described as a completely blatant instance of offending.  Of some significance is the probation officer’s recommendation of community work as an appropriate response to the offending.

[8]      A review of the cases relied on by the Department do suggest that they were concerned with much more serious offending.  Whilst it is clear that the Judge was influenced in part by Mr Hopkins’ previous unwillingness or inability to comply with previous court orders, neither that history or the circumstances of his offending on this occasion justified quite so stern a response.  I accept Mr Corby’s submission that the further sentence of home detention was manifestly excessive.

[9]      The appeal is allowed and the sentence imposed is substituted with one of

150 hours of community service.

P Courtney J