Mitchell v The Queen

[2014] NZCA 362

IN THE COURT OF APPEAL OF NEW ZEALAND

CA720/2013
[2014] NZCA 362

BETWEEN	GORDON MARCUS MITCHELL Appellant
AND	THE QUEEN Respondent

Hearing:	28 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	S K Green for Appellant F Pilditch for Respondent
Judgment:	31 July 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

1. On 23 October 2013, Mr Mitchell filed a notice of appeal against the sentence of six months community detention and 150 hours community work imposed in the Auckland District Court on 27 September 2013,[1] following his having pleaded guilty to a charge of possessing cannabis for sale.  The conditions of the sentence of community detention included that he was to reside at a specified address and not leave the address without prior written approval of a probation officer, and was subject to a curfew at that address between the hours of 6 pm and 6 am.

   [1]R v Mitchell DC Auckland CRI-2012-004-11026, 27 September 2013.

2. The essence of Mr Mitchell’s appeal (which he prepared without the benefit of legal advice) was that a bracelet which he is required to wear for the purpose of electronic monitoring causes discomfort and has aggravated swelling and pressure sores he suffered following a motor vehicle accident in 2001.  He submitted that this prevents him from attending a rehabilitation centre he would otherwise attend three to four times a week.

3. Although Mr Mitchell filed detailed submissions in support of his appeal, he was represented by Ms Green at the appeal hearing.  Ms Green conceded that there is a fundamental jurisdictional bar to Mr Mitchell’s appeal.  This arises from s 69E(1)(e) of the Sentencing Act 2002 which provides:

   69E     Conditions of community detention during sentence term

   (1)An offender sentenced to community detention is subject to the following conditions during the sentence term:

   …

   (e)the offender must, when required to do so by a probation officer, submit to the electronic monitoring of compliance with the conditions of his or her sentence, which may require the offender to be connected to electronic monitoring equipment throughout the sentence term and not just throughout the curfew period;

4. Thus, it is not the District Court that imposes the condition as to electronic monitoring; the probation officer may require an offender to submit to electronic monitoring.

5. This Court has no jurisdiction to revisit the probation officer’s requirement that Mr Mitchell submit to electronic monitoring.  It has no appellate jurisdiction in respect of the probation officer’s decision.

6. Accordingly, Mr Mitchell’s appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent