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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lomas v Police

Details

AGLC: Lomas v Police [2014] NZHC 2573
Case: [2014] NZHC 2573
Decision Date: 21 October 2014

CaseChat Overview and Summary

In Lomas v Police, the appellant, Jade Lomas, was originally sentenced to six months of home detention for injuring with intent to injure. Lomas removed his ankle bracelet and absconded before completing his sentence, leading to his arrest and subsequent re-sentencing by Judge D J McDonald. Lomas was re-sentenced to eight months' imprisonment for the original charge and three months' imprisonment for breaching home detention, resulting in an effective sentence of 11 months. Lomas appealed against the sentence, arguing it was disproportionate to his breach of home detention.

The High Court was required to decide whether the District Court Judge miscalculated the credit for the period Lomas had already served on home detention and whether this miscalculation affected the appropriate sentence for the original charge. The court also needed to determine if the sentence was proportionate to the breach of home detention and whether alternative sentencing options, such as home detention or a culturally specific programme, should have been considered.

The court found that the District Court Judge had erred in calculating the credit for the period Lomas had already served on home detention, giving him credit for only four months instead of the five months he had served. This miscalculation led to an incorrect total sentence for the original charge. The court quashed the sentence of eight months' imprisonment and substituted it with a sentence of two months' imprisonment, maintaining the cumulative sentence of three months for the breach of home detention. The court also imposed special conditions for Lomas's release, including participation in an alcohol and drug programme, assessment, and any recommended counselling or treatment programmes.

The final orders were that the sentence of eight months' imprisonment on the original charge was quashed and replaced with a sentence of two months' imprisonment. The cumulative sentence of three months' imprisonment for breach of home detention was confirmed. Additionally, special conditions were imposed for a period of six months from the sentence expiry date, including mandatory participation in an alcohol and drug programme, assessment, and any recommended counselling or treatment programmes.

Orders