IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000230 [2013] NZHC 306
RODNEY JAMES JOHNSTONE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2013
Counsel: Appellant in Person
S Pidgeon for the Respondent
Judgment: 25 February 2013
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 25 February 2013 at 3:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland.
JOHNSTONE V POLICE HC AK CRI-2011-404-000230 [25 February 2013]
Introduction
[1] On 25 May 2010, in the Auckland District Court, Rodney James Johnstone, the appellant in this case, pleaded guilty to a charge of burglary and was sentenced to five months’ home detention.[1] He was also ordered to pay reparation of $13,010 at the rate of $25 per week.
[1] Police v Johnstone DC Auckland CRI-2010-004-1904.
[2] On 22 June 2010, Mr Johnstone filed an appeal against sentence. The grounds of the appeal related solely to the reparation order.
[3] On 9 August 2010, Mr Johnstone breached his sentence of home detention by leaving his home detention residence without approval from a probation officer. He was located that day at another address and admitted to Probation staff that he had consumed alcohol and cannabis earlier in the day. The Probation Service charged Mr Johnstone with breach of home detention. It also applied to cancel the home detention sentence and substitute a sentence of imprisonment.
[4] On 12 August 2010, Mr Johnstone pleaded guilty to the charge of breach of home detention and did not oppose the application to cancel the sentence of home detention and substitute it with a sentence of imprisonment. He was accordingly remanded in custody until 2 September 2010 for a pre-sentence report and sentence.
[5] On 2 September 2010, Mr Johnstone was sentenced to two months imprisonment for breach of the sentence of home detention. However, Court staff told the Probation Service and Mr Johnstone’s lawyer that the application to cancel the sentence of home detention could not be heard because Mr Johnstone still had an active appeal lodged against the sentence. Accordingly, the application was put off to the next day to enable the Papakura District Court to seek advice on how to load the application into their system as at that stage an appeal was still pending.
[6] On 3 September 2010, on advice from the Probation Service and his lawyer, Mr Johnstone filed a handwritten notice of abandonment of his appeal in the High
Court at Auckland. The Court then advised the parties that the application to cancel the sentence of home detention could now be determined. Mr Johnstone was accordingly sentenced to two months’ imprisonment in substitution for the sentence of home detention to run concurrently with the two month term of imprisonment that he had received the previous day in relation to the charge of breach of the sentence of home detention.
[7] On 27 June 2011, Mr Johnstone filed a further appeal in the Auckland District Court against…
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