Lomas v Police

[2014] NZHC 2573

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-36

CRI-2014-488-37 [2014] NZHC 2573

BETWEEN

JADE LOMAS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 October 2014
Appearances:	NS Leader for Appellant MB Smith for Respondent
Judgment:	21 October 2014

ORAL JUDGMENT OF TOOGOOD J

LOMAS v NEW ZEALAND POLICE [2014] NZHC 2573 [21 October 2014]

[1]      On 21 November 2013, Jade Lomas was sentenced to six months’ home detention for one charge of injuring with intent to injure.  He almost completed the sentence but on 20 April 2014, he removed his ankle bracelet and absconded.  He was finally arrested on 26 July 2014 and was remanded in custody.

[2]      On   17 September   2014,   without   opposition   from   Mr   Lomas,   Judge D J McDonald cancelled the original sentence of home detention.  He re-sentenced Mr  Lomas  to  eight  months’ imprisonment  on  the  original  charge  and  added  a cumulative sentence of three months’ imprisonment on the charge of breaching home detention.  The effective result was that Mr Lomas received a sentence of 11 months’ imprisonment for having failed to complete the final month of his original sentence of home detention.

[3]      Such a sentence is entirely disproportionate to Mr Lomas’s breach.   The Probation Service had prepared a sympathetic report recommending that a further sentence of home detention should be ordered for both the breach and the completion of the original sentence.  That possibility does not appear to have been given any serious consideration by the Judge, who considered that a sentence of imprisonment should be imposed instead to mark the breach and act as a deterrent.   Given that Mr Lomas had spent some two months in custody since his arrest, a sentence of home detention may no longer have been appropriate.

[4]      Be that as it may, I consider the District Court Judge fell into error.  First, he miscalculated the period already served by Mr Lomas on home detention – he gave him credit, as he was required to do, but only for four months rather than the five months  which  had  been  served.    On  occasions  there  had  been  problems  with Mr Lomas meeting the terms of his home detention, but they were relatively minor issues and he had not been charged with any breach until the time he absconded. I take Mr Smith’s point that even minor breaches of the home detention regime should not be condoned by the Court but, to the extent that Mr Lomas failed fully to honour his obligations, that can be addressed in the sentence properly imposed for the breach of home detention.  On that basis he should have been given the full five months’ credit for the period of home detention which he had already served.

[5]      The Judge’s error was regrettably compounded when the Judge, in giving credit, deducted only four months from what he had assumed would have been a sentence of 12 months’ imprisonment for the original offending, had home detention not been ordered.   The credit for serving five months’ home detention, however, should have been the equivalent period of 10 months’ imprisonment.  Re-sentencing Mr Lomas to imprisonment on the original charge should have resulted in a sentence of only two months’ imprisonment rather than the eight months imposed.

[6]      On behalf of Mr Lomas, Mr Leader does not argue with the cumulative sentence  of  three  months’  imprisonment  for  the  one-month  breach  of  home detention, and Mr Smith, with characteristic fairness, does not dispute the outcome which results.

[7]      In the circumstances, I intend to allow the appeal in part.  The sentence of eight months’ imprisonment imposed in substitution for the cancelled sentence of home detention will be quashed and in its place a sentence of two months’ imprisonment imposed.  The cumulative sentence of three months’ imprisonment for the breach of home detention remains, meaning that Mr Lomas will be sentenced to an effective total period of five months’ imprisonment.  Given the time served since he was arrested on 26 July 2014, I estimate that Mr Lomas is due for release, if not immediately then very soon.

[8]      I am concerned about this young man’s future, however, and I propose to add

special conditions to apply upon his release.  I will explain why.

[9]      Mr  Lomas  grew  up  in  Whangarei  as  one  of  six  children.    His  parents separated when he was young and he told a probation officer he could recall meeting his father only “once or twice”.  He and his siblings were raised by his mother but it cannot have been easy for her, and I see that Mr Lomas’s twin is currently in custody at the Mt Eden Correctional Facility.   Sadly, Mr Lomas’s mother died of breast cancer a few years ago.  He reported to the Probation Service that he has no support other than from a sister aged in her early 20s.

[10]     Mr Lomas has a Ngapuhi whakapapa.  The probation officer, in supporting a re-sentence of home detention, suggested that a culturally specific programme (such as the Specialised Maori Culture Assessment or Tikanga Programme) might assist Mr Lomas to look to a cultural pathway as a means for remaining offence-free. Although Mr Lomas said at that stage he was not motivated to attend such a programme, I consider he should give that further thought and the Probation Service should do so also.  Mr Lomas has only intermittent work experience and I consider he would benefit from the assistance of a programme such as the Medium Intensity Rehabilitation Programme which is designed to help prevent re-offending.  Such a programme might assist to counter any adverse effects of Mr Lomas, at the age of just under 20, having spent nearly three months in a prison environment for the first time.

[11]     It is clear also that Mr Lomas has a drinking problem and that he would benefit from intervention in that respect.

[12]     The result is that the sentence of eight months’ imprisonment on the original charge is quashed and replaced by a sentence of two months’ imprisonment.  The sentence of three months’ imprisonment, cumulative, for breach of home detention is confirmed.  I impose the standard release conditions and in addition the following special conditions are imposed under s 93(1) of the Sentencing Act 2002 for a period of six months from the sentence expiry date:

(a)      Mr Lomas shall attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer.   The specific details of the appropriate programme are to be determined by a probation officer.

(b)Mr Lomas shall undertake and complete appropriate assessment or counselling  as  directed  by  and  to  the  satisfaction  of  a  probation officer.

(c)      Mr Lomas shall attend an assessment for a departmental programme as directed by a probation officer.  He shall attend and complete any

counselling,  treatment  or  other  programme  recommended  by  the assessment as directed by and to the satisfaction of a probation officer.

…………………………..

Toogood J