Loau (aka Ilalio) v Department of Corrections HC Auckland CRI 2009-404-424

[2010] NZHC 443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-424

BETWEEN  PATOLOMEO LOAU

(AKA PHILLIP PATOLOMEO ILALIO) Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:         22 March 2010

Counsel:         Tudor Clee for Appellant

Ms F J Cuncannon for Respondent

Judgment:      22 March 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J.

Appeal against sentence of two months imprisonment imposed for breach of

Orders for community work.

Appeal allowed – in part – sentence of imprisonment reduced to one month.

[1]      On 22 August 2008 Mr Ilalio was sentenced to 210 hours of community work for default in payment of fines.  However on 10 January 2009 and again on 7 March

2009, he failed to complete the required number of hours work.

[2]      An information was laid with the Manukau District Court for two breaches of community Work, namely on 10 January and 7 March 2009 but unfortunately, in the Caption  Sheet  placed  before  Judge  Wade  that  day  the  suggestion  was  that  the

appellant had completed only 10 hours of the 210 hours ordered and accordingly,

PATOLOMEO LOAU (AKA PHILLIP PATOLOMEO ILALIO) V DEPARTMENT OF CORRECTIONS HC AK CRI-2009-404-424  22 March 2010

some 15 months after community work was ordered, there was a large amount outstanding.

[3]      It is now agreed that that information was incorrect and that at that stage 164 hours had been completed.

[4]      Because of the erroneous information given, Judge Wade on 26 November

2009 recounted Mr Ilalio’s history and said (at para [3]):

His performance in relation to community work has been absolutely lamentable.  He has hardly done any at all, I am told.  Furthermore, we do not have the benefit of a full pre-sentence report because Mr Ilalio could not be bothered to attend the interview with the Probation Officer.

As a result of that, the Judge cancelled all community work and sentenced Mr Ilalio to two months imprisonment.

[5]      As mentioned, Mr Clee’s painstaking analysis has now been confirmed by Ms Cuncannon, for Probation, namely that Mr Ilalio had completed some 164 hours of the ordered community work – a difference from that advised to Judge Wade that Ms Cuncannon accepts is substantial.

[6]      The question therefore  is what should be done?   Under s 121(3) of the Summary Proceedings  Act 1957 if substantially incorrect facts are put before a Court, a Court on appeal or review can amend that and vary the sentence within the limits provided by law.

[7]      Prior to appearing before Judge Wade Mr Ilalio had two previous convictions for breaching sentences of community work – in 2008 he was convicted and discharged,  in  2003   he  was  sentenced  to  200  hours  of   community  work. Ms Cuncannon makes the point that the two breaches under consideration in this appeal were within the context of at least 35 failures to report, at least 12 of which followed a final warning given in the Manukau District Court on 28 April 2009.  She also noted Mr Ilalio’s failure to attend for a Probation interview.

[8]      In those circumstances it is reasonably clear that had the correct position been advised to Judge Wade he would not have imposed a sentence of two months imprisonment.  But that does not say imprisonment would not have followed.  It is not going too far to say that Mr Ilalio’s failures in respect of community work are “lamentable” and had been ongoing for quite a period.

[9]      In  those  circumstances,  as  Mr  Clee  effectively  suggests,  the  appropriate position is that the appeal be allowed to the extent of halving the imprisonment imposed on Mr Ilalio.   He is sentenced to one month’s imprisonment to operate concurrently on the two charges and, he being on bail, is required to surrender himself to the Manukau Police Station at 10:00am on Tuesday 23 March 2010.

[10]     As a postscript, it might be added that for a man only born in 1981 Mr Ilalio seems to have some difficulty with alcohol, if his three convictions for driving with excess breath alcohol are anything to go by.  He may well avoid brushes with the law in the future if he addresses what appears to be a problem in that regard.

[11]     Judge Wade cancelled all the hours of community work remaining.   It is appropriate that that order remain in place even though, of course, it applies to a much smaller balance than the Judge had in mind.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Solicitor, PO Box 2213 Auckland 1140

Copy for:

Tudor Clee, Private Bag 92185 Auckland

Email:   [email protected]

District Court Judge R Wade

Case Officer:

Leroy[email protected]