N v Police HC Rotorua CRI-2010-463-24

[2010] NZHC 716

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-24

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 May 2010

Appearances: Mr H Edward for Appellant

Ms L Owen for Respondent

Judgment:      14 May 2010

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Crown Solicitor, Rotorua
Counsel:

Mr H Edward, Rotorua

N V NEW ZEALAND POLICE HC ROT CRI-2010-463-24  14 May 2010

[1]      Mr N   pleaded guilty in the District Court to a charge of burglary.  On

31  March  2010  His  Honour  Judge  Weir  sentenced  him  to  six  months  home detention.  He now appeals against that sentence on the basis that the Judge ought to have given consideration to the alternative sentence of community detention.

[2]      The offending that gave rise to the charge has some concerning aspects. Police in the Bay of Plenty area had been concerned for some time about thefts from mobile homes and caravan parks.  To that end they established a mobile home in a holiday park and then set up surveillance over it.

[3]      During  the  course  of  the  surveillance  operation,  the  police  observed  Mr N   going into the caravan and looking at items within it.   He then left the caravan for a short period before returning to it.  When he returned to the caravan, the police apprehended him.  He frankly admitted that he had entered the caravan without consent, and said that he was looking for cigarettes or tobacco to steal.

[4]      This is not Mr N  ’ first offending for dishonesty.  He has a significant criminal record, including four convictions for burglary.  He has other convictions involving aggravated robbery and non-aggravated robbery as well as theft.

[5]      The Judge took a starting point of 12 months imprisonment and increased that by six months to reflect Mr N  ’ previous convictions.  He then reduced the sentence by one-third to take into account the early guilty plea.  This left him with an end  sentence  of  12  months  imprisonment.    The  Judge  then  determined  that  a sentence of home detention was appropriate, and ordered Mr N   to serve a sentence of six months home detention.

[6]      On appeal, counsel for Mr N   points out that Mr N   was not represented  when  the  Judge  sentenced  him.     As  a  consequence,  he  had  no opportunity to make detailed submissions in support of a sentence of community detention.  For that reason I consider it appropriate to consider afresh the issue of whether or not a sentence of home detention or community detention is appropriate.

[7]      The sentence of home detention has attractions, because it means that Mr N   will be confined to his home address 24 hours a day.  This will severely limit any temptation that he might have during the period of the sentence to become involved in further offending.  It also has a punitive aspect that is appropriate given his previous history.

[8]      There is, however, one aspect of Mr N  ’ current circumstances that needs to be taken into account.   Counsel for Mr N   has provided me with a letter from Mr N  ’ employer.   The employer confirms that Mr N   has worked  as  a  full-time  employee  for  his  construction  firm  for  approximately 18 months.  He began as a labourer and has worked his way up to the position of being a machine operator.

[9]      The employer says that it has invested approximately $6,000 in training Mr N   during the period with which he has been with the company.  He has also passed compulsory drug tests that the employer requires employees to undertake. The employer says that Mr N   has become an integral part of his company’s team, and that he has gained respect from the company’s customers.  The employer’s view is that Mr N   is a good person and a valuable employee, who should remain in the workplace if at all possible.

[10]     The Court should obviously encourage the efforts that Mr N   makes to gain and retain employment such as this.   The problem with a sentence of home detention  is  that  it  cannot  accommodate  work  of  a  particular  nature  that  this company undertakes because it is impossible to monitor it.

[11]     In considering whether I should allow the appeal I have been greatly assisted by the information given to me by Mr Paul, a very senior probation officer, who also knows Mr N   personally.  His advice to me during the course of the hearing was that home detention is not a viable option if Mr N   wishes to retain his employment.    The  only  realistic  option  is  a  sentence  of  community  detention, coupled with a sentence of intensive supervision.  This will permit Mr N   to retain his employment whilst also being subject to significant oversight by the probation service.

[12]     Having heard from Mr Paul, I have no doubt that community detention is the appropriate sentence for Mr N   in this case.  For that reason I make an order quashing the existing sentence of home detention as from 17 May 2010.  In its place I impose a sentence of community detention from that date for a period of five months.

[13]     Mr N   is also to be subject to intensive supervision for five months. That supervision contains a special condition that he is to undertake such alcohol and/or drug assessments, counselling and programmes as may be directed by his probation officer.  In addition, he is to attend any other assessments or programmes that the probation officer may direct.

[14]     I direct that the curfew hours in the sentence of community detention are to be between 7 pm and 6 am with the first curfew to be on Monday 17 May 2010, being the date on which the sentence of community detention takes effect.   Mr N   is to reside at the address at which he was previously serving his sentence of home detention during those curfew hours.

[15]     Mr N   will remain subject to the existing requirement to comply with electronic monitoring as directed by a probation officer and he is to report to his probation officer as directed.  Mr Nichols is also directed to report to the Rotorua Probation and Psychological Office at 1232 Haupapa Street, Rotorua within 24 hours of this judgment.

[16]     I record that I have advised Mr Paul that I would expect the probation service to ask for the sentence of community detention to be varied or cancelled under s 69(i) of the Sentencing Act 2002 in the event that Mr N   fails to comply with any of the conditions of his sentence.

[17]     The curfew hours shall also remain in place on Saturdays and Sundays.

Postscript

[18]    In my oral judgment I sentenced Mr N   to five months intensive supervision.   It has now been brought to my attention that a sentence of intensive supervision must be for a period of between six and 12 months: s 45(2) Sentencing Act 2002.   For that  reason  I have imposed a sentence of six  months intensive supervision rather than five months as indicated in my oral judgment.

Lang J