Jorgensen v Police

[2012] NZHC 1590

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-14 [2012] NZHC 1590

SIMON JORGENSEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 July 2012

Appearances: J Hannam for the appellant

A W M Britton for the respondent

Judgment:      5 July 2012

JUDGMENT OF CLIFFORD J

[1]      Mr Jorgensen was sentenced by Judge Roberts in the District Court at New Plymouth on 26 January 2012 to 18 months’ imprisonment on charges of possession of cannabis for the purpose of supply, cultivation of cannabis and possession of a Class A controlled drug, namely Magic Mushrooms.  The Judge declined to sentence Mr Jorgensen to home detention.

[2]      Mr Jorgensen  now  applies  for  leave  to  appeal  out  of  time  against  that sentence.  He does so on the basis of what his counsel, Mr Hannam, has described as a change of circumstances: namely that there is now a suitable home detention residence available in New Plymouth in which Mr Jorgensen could serve the balance

of his sentence on home detention.

JORGENSEN v POLICE HC NWP CRI-2012-443-14 [5 July 2012]

Analysis

[3]      At the time of Mr Jorgensen’s sentencing, there was no suitable address to which he might be sentenced to a sentence of home detention.  But the Judge did not decline to sentence him to home detention on that basis.  Rather, the Judge declined to sentence Mr Jorgensen to home detention because, by the Judge’s assessment, Mr Jorgensen was not a suitable candidate for such a sentence.  The Judge reached that conclusion by reference to the offending for which Mr Jorgensen was being sentenced, which pointed unequivocally to commercial activity, and because of his assessment of Mr Jorgensen’s inability to properly comply with the terms of a non- custodial sentence.   That inability was  evidenced particularly when, on the day Mr Jorgensen had been asked to present to his probation officer, he was heavily under the influence of cannabis and showed little or no appreciation of or ability to comply with the terms of a sentence of home detention.

[4]      The Judge concluded in his sentencing remarks as follows:[1]

[1] Police v Jorgensen DC New Plymouth CRI-2011-043-003069, 26 January 2012 at [28] – [29].

For the completeness of this recital I regard the options of home detention and community detention clearly unsuitable.   Home detention would have required abstinence.   Community detention would otherwise have to be combined with community work.   You cannot do that and your eight convictions for breach are testimony enough.

Home  detention  is  out  of  the  options  available  to  me.     It  is  not recommended.   Your offending is serious and I consider that there is no earthly chance of you securing abstinence and retaining it through the period of that sentence.

[5]      I acknowledge the steps taken by Mr Jorgensen’s mother, who has organised the address in New Plymouth to which she is prepared to move and reside with Mr Jorgensen were he to be sentenced to home detention.   I also record that that address has been determined as being physical suitable for home detention, and Mrs Jorgensen has given the necessary consent.

[6]      In my view, however, that such an address may now be available is not a ground on which to grant leave to Mr Jorgensen to appeal his sentence some six

months out of time, nor – on the merits – to allow such an appeal.

[7]      A sentence of home detention is available where a Judge would otherwise sentence an offender to a short-term sentence of imprisonment (ie two years’ imprisonment or less).  In that situation there are likely to be two reasons (broadly speaking) why such a sentence may not be considered appropriate.  First, whilst a suitable  address  may  be  available,  such  a  sentence  may  not  be  considered appropriate  given  the  offending  and  offender  involved.    Alternatively,  such  a sentence may not be available because no suitable address has, at that point, been identified.

[8]      In the latter circumstance, and pursuant to s 80I of the Sentencing Act 2002, if the Court would have sentenced the offender to a sentence of home detention if such a suitable address had been available, the Court must make an order granting the offender leave to apply to the Court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the

offender finds a suitable residence at a later date.[2]   It is in those circumstances that

the “change of circumstances” that Mr Jorgensen seeks to rely on here becomes relevant.

[2] Sentencing Act 2002, s 80I.

[9]      But it is clear that that was not the reason Mr Jorgensen was declined home detention.  The fact that there is now a suitable residence available provides no basis to challenge the substantive decision made by Judge Roberts as to whether or not Mr Jorgensen should be admitted to home detention.   Such a development is not therefore a reason to grant leave to Mr Jorgensen to appeal his sentence, nor a factor which would provide substantive support to such an appeal.   There was no other ground  on  which  Mr Jorgensen  advanced  this  appeal.    There  is,  therefore,  no suggestion that the Judge erred in imposing a sentence of 18 months’ imprisonment instead of home detention.

[10]     Mr Jorgensen’s appeal is therefore declined.

Clifford J

Solicitors:

Hannam & Co, New Plymouth for the appellant.

The Crown Solicitor, New Plymouth for the respondent.