Irwin v The Queen

[2016] NZHC 2677

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-37 [2016] NZHC 2677

BETWEEN

RODERICK IRWIN

Appellant

AND

THE QUEEN Respondent

Hearing:	8 November 2016
Counsel:	T Epati and J C Mathieson for appellant (by AVL) M J M Mitchell for respondent
Judgment:	8 November 2016

JUDGMENT OF DOBSON J

[1]      On 2 November 2016, the appellant (Mr Irwin) was sentenced to two years and two weeks’ imprisonment in the Gisborne District Court by Judge Cathcart, having pleaded guilty to two charges of supplying methamphetamine.

[2]      Counsel are agreed that in constructing the sentence, the Judge made an arithmetical error in calculation.  The Judge adopted a starting point of two years and eight  months’ imprisonment,  which  was  discounted  by  one  month  for  lack  of relevant convictions and then subjected to a 25 per cent discount for the guilty pleas. The  Judge  calculated  that  as  an  end  sentence  of  two  years  and  14  days’ imprisonment.   Consequently,  the Judge did  not  consider home detention  as  an alternative to a prison sentence of short duration.

[3]      The correct calculation of the 25 per cent discount from two years and seven months is 23 months and seven days.  In those circumstances, the Court was asked to bring an appeal on promptly, given that the Crown accepted that home detention

would be an appropriate substitute sentence for a prison term of short duration.  The

IRWIN v R [2016] NZHC 2677 [8 November 2016]

Judge’s sentencing notes had not been transcribed, but I was prepared to deal with the matter on counsel’s agreement that the ground for the appeal was the arithmetic error, with the consequent ability to consider a substitute sentence.

[4]      The  Department  of  Corrections’  provision  of  advice  to  the  Court  on sentencing  confirmed  the  suitability  of  Mr Irwin’s  home  address  for  serving  a sentence of home detention.   That prospect was complicated because his partner, Ms Miringaorangi was a co-defendant, living at the same address, and also likely to be sentenced to home detention at that address.

[5]      Ms Epati had arranged for the responsible Corrections officer to be present in the AVL suite in Gisborne from which she appeared on argument of the appeal.  The officer confirmed Ms Epati’s advice to the effect that, because two defendants could not be monitored for home detention sentences in the same property, arrangements had  previously  been  made  for  Ms Miringaorangi  to  serve  her  sentence  at  an alternative address in Gisborne.   That change to the terms of her sentence can be done administratively, and I was assured that arrangements were in place to effect that change in the event that Mr Irwin’s appeal succeeded and he was sentenced to home detention.

[6]      For the Crown, Ms Mitchell confirmed that the respondent had no objection to Mr Irwin serving a sentence of home detention at his home address, and that the logistics  of  moving  his  partner  to  serve  her  sentence  at  another  address  were accepted as appropriate.

[7]      The offending involved low level methamphetamine dealing.   The starting point adopted by the Judge was clearly within range and the discount given was appropriate. Where the personal circumstances of an offender render home detention appropriate, it is a sentence that can send sufficient signals for denunciation and deterrence.  I was therefore persuaded that a sentence of home detention should be substituted.

[8]      As to the length of any such sentence, Ms Epati submitted that the only means of giving Mr Irwin credit for his period in custody pending sentence was to

treat it as time served on his sentence.  Mr Irwin has been in custody for two months. Recognising  that  that  is  the  equivalent  of  serving  four  months’  imprisonment, Ms Epati contended for a period of between eight and nine months’ home detention. Ms Mitchell did not dispute that as an appropriate range.

[9]      I accept that a measure of credit should be granted for time served.

[10]     Accordingly, I have allowed the appeal.  The prison sentence is quashed and substituted with a sentence of nine months’ home detention.

[11]     I do so in reliance on counsel’s agreement that the sentencing Judge made a purely arithmetical mistake, and their agreement on the extent of that mistake, which reduced the length of the prison sentence from a little more than 24 months to

23 months and a week.

[12]     I also impose the home detention sentence as a substitute in reliance on assurances from Ms Epati in the presence of the responsible Corrections officer that the   home   detention   sentence   being   served   by   Ms Miringaorangi   can   be administratively substituted for a home detention sentence of the same length to be served at another address, so as to avoid compromising the ability of monitoring Mr Irwin’s home detention sentence at the family home.

[13]     The conditions of the substituted sentence are that Mr Irwin is:

(a)       to travel directly to [the home detention address] and wait there until his home detention connection is completed;

(b)to reside at that address, and not move to any new residential address without the prior written approval of a Probation Officer;

(c)       to remain at that address at all times unless an absence has been authorised by a Probation Officer;

(d)not to possess, consume or use any alcohol or drugs not prescribed to him;

(e)      to attend an assessment for an appropriate Departmental programme as directed by a Probation Officer;

(f)      to attend and complete any counselling, treating or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer;

(g)      to  attend  any  other  counselling  or  programmes  as  directed  by  a

Probation Officer.

Dobson J

Solicitors:

Rishworth, Wall & Mathieson, Gisborne for appellant

Crown Solicitor, Gisborne for respondent