McNally v Department of Corrections

[2012] NZHC 1991

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000057
CRI-2012-409-000058

CRI-2012-409-000059 [2012] NZHC 1991

BETWEEN  DANIEL ANDREW MCNALLY Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:         9 August 2012

Appearances: R Glover for Appellant

D J Orchard for Respondent

Judgment:      9 August 2012

JUDGMENT OF FOGARTY J

Solicitors:

Raymond Donnelly, PO Box 533, Christchurch Mail Centre, Christchurch 8140

Copy to:

R Glover, Griffin Chambers, PO Box 13699, Christchurch 8141

MCNALLY V DEPARTMENT OF CORRECTIONS HC CHCH CRI-2012-409-000057 [9 August 2012]

[1]      This is an appeal against a sentence in the District Court of Judge Doherty on

2 July 2012.

[2]      The appellant was appearing for re-sentence on a number of matters.  He had been sentenced to community work on various dates, but had been unable to do that because of his alcohol  issues.   The Probation  Service had  applied to  have that sentence reviewed.

[3]      The  Judge  recognised  that  the  appellant  had  a  severe  alcohol  addiction problem and that the appellant had made efforts in the past to beat this addiction. The Judge was intent on imposing a rehabilitative sentence.  He said in paragraph [8]:

... I think rehabilitation is what you need but I think we have got to take a different approach to the one that has been taken to date.  You have been unable to abstain from alcohol and maybe you will be unable to do that in another environment but I am going to try it, and I am concerned as much for you as I am for anyone else.

[4]      He then said in paragraph [10]:

So I think that a combination of sentence which has its only aim at rehabilitation, is the way I am going to go.  I am going to try and see whether a term of imprisonment where you will not be able to get alcohol, is at least a starting point to get you off it, and then to enable the programme that I am going to impose, is of help.

[5]      He then went on to  grant the application for review of sentence,  cancel community work and then re-sentence the appellant on two shoplifting charges, two trespass charges, one charge of assaulting a police officer and a breach of community work.   On each of these sets of charges he imposed a sentence of two months’ imprisonment cumulative, so that the maximum sentence was eight months’ imprisonment.

[6]      The second rehabilitation aspect is that he then imposed standard conditions of release and a special condition set out in the probation report that the appellant was undertake an alcohol and drug assessment and if found suitable, to undertake any treatment,  counselling or programmes  including residential  treatment  to  the

satisfaction of the programme faciliator and a probation officer, all of which conditions will continue until six months after his sentence expiry date.

[7]      Mr Glover’s argument on appeal before me is that the Judge made a mistake in  that  the  sentence  he  had  imposed  went  beyond  rehabilitation  because  the utilisation of a term of imprisonment as a means of ensuring detoxification did not require a maximum sentence of eight months’ imprisonment. That detoxification can be achieved in a much shorter period than the normal length of imprisonment against such a maximum sentence, which would be of four months.

[8]      It is apparent from the last paragraph of the decision which I have quoted, that there was no certainty that the appellant would qualify and that there would be a place in Odyssey House for him on release from prison.   The Judge had earlier acknowledged that on the appellant’s release from imprisonment he might have an incentive to “grab the first bottle you can see when you come out”.

[9]      I have difficulty with the concept that Judge Doherty may have made a mistake.  I think that the notes of the Judge reveal a careful attention to the needs of the appellant.  The Judge may simply may not have taken the opportunity to explain his reasoning to set a sentence which was likely to involve a term of actual imprisonment of four months.

[10]     Mr Glover had to acknowledge that on general sentencing principles under the Sentencing Act he could not argue that a maximum sentence of eight months’ imprisonment was excessive.  Rather, he was being forced to argue that given that the Judge imposed on himself a limited objective of sentence of rehabilitation that in that sense the judgment contained a mistake which this Court ought to rectify.  In the course of his argument Mr Glover and I explored the possibility of a sentence of imprisonment which ensured that its duration would entry into Odyssey House, but I have two difficulties with that.  Firstly, I am not sure that I have the jurisdiction to do it and secondly, it would involve completely changing Judge Doherty’s decision.  I am simply not satisfied at the end of argument and from, of course, hearing from Mrs Orchard that there has been any error in this decision and I certainly do not think it is manifestly excessive.

[11]     One also takes into account that it is an oral decision and a close scrutiny of the expressions of reasons often does not do justice to an overall reading of the judgment.

[12]     For these reasons I have not been persuaded that there is any error in the decision or that it is manifestly excessive and so I am not satisfied there is a basis for intervening. Accordingly, the appeal is dismissed.