McNoe v The King - [2023] NZHC 2801

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-22

CRI-2023-425-23 [2023] NZHC 2801

BETWEEN
CODIE JAMES BENJAMIN MCNOE

Appellant

AND

THE KING

Respondent

Hearing: 5 October 2023

Appearances:

J A T Ross for the Appellant

M Brownlie for the Respondent

Judgment:

6 October 2023

JUDGMENT OF HARLAND J

[1] Codie McNoe appeals against a sentence of 18 months’ imprisonment imposed on him in the Invercargill District Court on 11 July 2023.1 In his notice of appeal, he contended he ought to have been sentenced to a term of home detention as opposed to imprisonment. The appeal now relates to the conditions the Judge imposed when he granted Mr McNoe leave to apply for home detention. Both counsel now ask the Court to grant the appeal as it relates to the conditions.

[2] When the appeal was called before me, I indicated I would allow the appeal as it relates to the conditions and quash them. The Judge’s grant of leave to apply for home detention is not affected by this outcome.

[3]I indicated to counsel I would reserve my reasons. I now provide them.

1 R v McNoe [2023] NZDC 14566.

MCNOE v R [2023] NZHC 2801 [6 October 2023]

Background

[4] Mr McNoe appeared before the District Count Judge for sentence on two sets of charges, which I will refer to as the January 2021 and July 2022 offending.

The January 2021 offending

[5] The first set of charges comprise one charge of driving while disqualified, being his third or subsequent such offence,2 and one charge of, having been required to do so, refused to permit a blood specimen to be taken,3 this also being his being his third or subsequent such offence. These charges arose out of what happened on 10 January 2021. They were laid in the Dunedin District Court on 14 January 2021.

[6] On 9 February 2021, Mr McNoe pleaded not guilty to both charges and elected trial by jury.

The July 2022 offending

[7] On 3 July 2022, when he was at Invercargill, Mr McNoe was apprehended and charged with driving with an excess breath alcohol level, being a third or subsequent offence, and driving contrary to a zero alcohol licence, also being a third or subsequent offence. In respect of these charges, Mr McNoe pleaded not guilty and elected trial by jury.

Progress of both sets of charges

[8] On 14 November 2022, the morning of his jury trial for the January 2021 offending, Mr McNoe pleaded guilty to both charges. The Court record notes that he was further remanded on EM bail for sentence on 23 March 2023, but his attendance, should he be accepted on the Right Track programme, was noted to be an approved absence.

[9] On 9 December 2022, the Court was advised that Mr McNoe had been accepted on the May 2023 Right Track Programme. A sentencing date was allocated for 21 June 2023.

2 Land Transport Act 1998,…

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 McNoe v The King

Details

AGLC: McNoe v The King [2023] NZHC 2801
Case: [2023] NZHC 2801
Decision Date: 6 October 2023

CaseChat Overview and Summary

Codie McNoe appeals against a sentence of 18 months’ imprisonment imposed on him in the Invercargill District Court. The appeal focuses on the conditions attached to the leave to apply for home detention. McNoe argues that the conditions imposed by the Judge, requiring him to serve six months imprisonment before applying for home detention, are ultra vires. The Crown concedes that the conditions are indeed beyond the powers of the court. Both counsel agree that the appeal should be granted, clarifying that the leave to apply for home detention should remain, but the conditions attached to it should be quashed.

The legal issue before the court is whether the conditions imposed by the Judge were within the powers of the court. Section 80I(2) of the Sentencing Act 2002 places an obligation on judges to grant an offender leave to apply to the Court to convert their sentence to home detention if the requirements of s 80I(1) are met. The Judge’s imposition of conditions, such as requiring McNoe to serve six months imprisonment before applying for home detention, goes beyond the statutory obligation and is therefore ultra vires.

The court agrees with McNoe that the conditions imposed by the Judge were beyond the powers of the court. The only qualification the section contemplates is that the proposed residence must be “suitable.” The further qualification the Judge sought to impose, namely that home detention would only be granted to a residential drug and alcohol programme, is not permitted by the legislation. It makes sense for there to be no discretion for judges to impose conditions in respect of an application to convert a sentence to one of home detention as s 80I applies only if, at the time of sentencing, the court would have sentenced the offender to home detention if a suitable residence was available.

The court allows the appeal and quashes the conditions imposed in the District Court attached to the granting of leave to apply for home detention. The grant of leave to apply for home detention remains. McNoe has filed an application in the District Court seeking to have his sentence of imprisonment converted to home detention but the District Court is awaiting the determination of this appeal prior to setting it down for a hearing.

Orders