Newman v Chief Executive of the Ministry of Social Development HC Whangarei CRI 2011-488-000028
[2011] NZHC 927
•2 August 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2011-488-000028
TIMOTHY JAMES NEWMAN
v
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Hearing: 26 July 2011
Counsel: M Gardam for the Appellant
M B Smith for the Chief Executive
Judgment: 2 August 2011 at 2:15 PM
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on at
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution: M Gardam
M B Smith
Department of Corrections
T J NEWMAN V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WHA CRI 2011-488-000028 2 August 2011
[1] Mr Newman appeals against a sentence imposed by Judge J L Rota in the
District Court at Kaikohe on 10 December 2010.
Backround
[2] In June 2007, Mr Newman was charged with benefit fraud under s 127 of the Social Security Act 1964 and with using a document dishonestly with intent to obtain a pecuniary advantage under s 228(b) of the Crimes Act 1961. It was alleged that he had defrauded the authorities of $9,644.
[3] The charges were called in the District Court at Kaikohe on 25 September
2007, and again on 14 March 2008. When the matter was called on 14 March 2008, Mr Newman entered guilty pleas to both charges. He was sentenced to 150 hours’ community work.
[4] Over the next 18 months, Mr Newman failed to comply with the sentence. As at September 2009, Mr Newman had completed only nine and a half hours’ community work, and he had a total of 140 and a half hours outstanding.
[5] On 25 September 2009, the Probation Service filed an application under s 68(2)(b) of the Sentencing Act 2002 (the Act), seeking to cancel the sentence of community work, and to substitute that sentence with such alternative sentence as the Court considered appropriate.
[6] A Ms Davis, who is a probation officer, filed an affidavit in support of the application, advising that:
(a) Mr Newman had on various occasions, reported that he was in pain;
(b)Mr Newman asserted that he had aggravated a neck injury which he said he had sustained in a car accident in 2005;
(c) Mr Newman was prepared to approach a sponsor to see if any light duty work could be made available to him;
(d) Mr Newman had made various medical certificates available;
(e) the Probation Department had spoken to his doctor. She was of the opinion that he was able to perform light duties. Indeed, the doctor was of the opinion that it may, in fact, help Mr Newman to do some light work;
(f) Mr Newman had failed to report as instructed on various occasions;
and
(g) Mr Newman had enquired about a possible review of his sentence.
[7] Mr Newman could not be served and, in November 2009, a warrant for his arrest was issued. He appeared in the District Court on 27 July 2010, and he was remanded for sentence. The Court directed that a pre-sentence report should be prepared, together with appendices.
[8] On 14 September 2010, a pre-sentence report was received by the Kaikohe District Court. This report was critical of Mr Newman. The writer noted Mr Newman’s complaints about pain and then made the following comments:
The information supplied is self-reported and caution must be drawn. The writer of this report cut the interview short due to the pain Mr Newman was in. He was then observed leaving the building and got into the driver seat of a vehicle. He then miraculously turned his head, neck and shoulders around to see through the rear window as he reversed. Two minutes earlier whilst in the interview room, Mr Newman would not have been able to turn his head, neck and shoulders.
Due to the alleged severity of his neck pain, one must wonder how he is capable to drive.
The report writer recommended a sentence of community work and home detention.
[9] Mr Newman came before the District Court on 2 December 2010 for sentence. There are no sentencing notes as such. The Court file records that Mr Newman was sentenced to home detention for three months. There is nothing on the Court file to suggest that the Judge Rota expressly allowed the application by the Department of Corrections under s 68 of the Act, or that the sentence of community
work imposed on 14 March 2008 was varied or cancelled. It is implicit that the existing sentence of community work was to continue.
[10] On the same day, Mr Newman filed a notice of appeal. He alleged that the sentence imposed upon him was manifestly excessive, unjust, and unfair in the circumstances. He also asserted that the Judge erred in law by leaving the community work order in place, after substituting that sentence with a sentence of home detention.
[11] The matter came before Judge Rota again on 10 December 2010. On this occasion, Mr Newman was represented by the duty solicitor, a Mr Littlefair, and there was a lengthy discussion between counsel and the Judge. The Judge recorded that he had made a mistake, and that he had had the matter called before him again on his own motion to grant a re-hearing. The Judge indicated that he proposed to leave the three months’ home detention sentence in place, and cancel the community work sentence. Counsel appearing for Mr Newman indicated that there was a difficulty with home detention, because Mr Newman worked every Saturday night as a DJ. Counsel submitted that a sentence of community detention would allow Mr Newman to undertake his Saturday night job. The Court indicated that if it were to impose a sentence of community detention, the community work order would stay in place. The Judge expressed the view that if Mr Newman could go to work on Saturday nights, he could do community work as well. Mr Newman’s counsel confirmed that Mr Newman could do light duties. The Judge then imposed sentence. The sentencing notes record as follows:
I have vacated the sentences imposed on the two informations that I discussed; they are, in effect, a nullity. In respect of the same sentence that was imposed on the application for review, that review is granted. The sentence is vacated. The sentence now is that this defendant undergo three months’ community detention at 4 Ash Grove Circle, Haruru Falls as an address, to begin on 14 December 2010. The curfew period is 7 o’clock at night to 7 o’clock in the morning, every night except Saturday nights.
The current term of community work to which this application refers is to continue.
Submissions
[12] Mr Gardam for Mr Newman submitted that once he had granted the Probation Service’s application on 2 December 2010, the District Court Judge had the following disposition options pursuant to s 68(3) of the Act:
(a) Vary the sentence by reducing the number of hours of work to be done;
(b) Cancel the sentence; or
(c) Cancel the sentence and substitute any other sentence.
Counsel submitted that the District Court did none of these things on either
2 December 2010 or 10 December 2010. Rather, he argued that on both occasions the Judge added an additional penalty to the existing sentence of community work. Specifically he submitted that the Judge had no jurisdiction to impose a sentence of community detention in conjunction with the existing sentence of community work on 12 December 2011. He submitted that the District Court ought to have cancelled the previous sentence of community work, and imposed an alternative sentence. He argued the District Court had simply added to the original sentence. He submitted that the appropriate outcome now would be cancellation of the current outstanding community work hours. Counsel advised that his client had already served the sentence of three months’ community detention. He pointed out that it is open to the Court to impose additional community detention in lieu of the community work hours if it considers that that is appropriate.
[13] Ms Henderson for the respondent referred to the relevant statutory provisions. She acknowledged that the Judge erred on 2 December 2010, because he failed to record that he had granted the Department’s application, and because he appears to have held that the then current sentence of community work was to continue. She acknowledged that the Judge could not do this without granting the review sought by the Department. Counsel submitted, however, that the Judge had not erred on
10 December 2010, but rather that the Judge acknowledged his earlier error, vacated
the earlier sentences, and then proceeded to re-sentence Mr Newman and impose a new sentence of three months’ community detention and 150 hours’ community work. She submitted that this decision was both appropriate, and within the Judge’s powers. She submitted that there is nothing in s 68 to prevent a Court imposing a sentence of greater severity in such circumstances, and noted that increased sentences are not unusual where an application under s 68(2)(b) asserts that there has been a breach of the original sentence imposed by the Court. She accepted that the Judge’s wording on 10 December 2010 in relation to the sentence of community work was not particularly clear, but submitted that the Judge was merely referring back to the previous sentence to set the length of the new community work sentence (i.e. he was not saying that the original sentence itself continued).
Analysis
[14] Section 68 of the Act permits the Probation Service to apply to have an existing sentence of community work varied or cancelled in various circumstances. Relevantly, it provides as follows:
68 Variation or cancellation of sentence of community work
...
(2) A probation officer may apply in accordance with section 72 for an order under subsection (3) of this section—
...
(b) on the grounds that the offender has behaved in a manner described in any of paragraphs (a) to (j) of section 71(1).
[15] Section 71 makes it an offence to breach a sentence of community work.
[16] Section 68 then goes on to give the Court a discretion in the event that it is satisfied that the application is made out. Section 68(3) provides as follows:
(3) On an application under subsection (1) or subsection (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
(a) vary the sentence by reducing the number of hours of work to be done; or
(b) cancel the sentence; or
(c) cancel the sentence and substitute any other sentence (including another sentence of community work) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
[17] Where the ground on which application is made is that the offender behaved in a manner described in any of the paragraphs (a) to (j) of s 71(1), it will be unusual for the Court to exercise its power under s 68(3)(a) to vary the sentence by reducing its length, because the application is based on the offender’s breach of the earlier sentence imposed.
[18] Where a Judge is faced with an application under s 68(2)(b), he or she must first be satisfied that the offender has behaved in a manner described in any of paragraphs (a) to (j) of s 71(1). If the Judge is so satisfied, he or she should expressly grant the application. If the application is granted, then the Judge can move on to consider whether to vary, cancel or cancel and substitute, the sentence previously imposed.
[19] Here, Judge Rota did not expressly record either on 2 December 2010, or
10 December 2010, that he was satisfied that the grounds on which the application was based had been established. In his sentencing notes issued on 10 December
2010, he recorded that the “review” was granted. Presumably, this was a reference to the application. He then went on to vacate the sentence which had been imposed in March 2008. The Judge then imposed a sentence of community detention, and recorded that the current term of community work to which the application referred was to continue.
[20] There can be no objection to a sentence of community detention and community work being imposed together. This combination is expressly permitted under s 19(5) of the Act.
[21] There is, however, a difficulty with the Judge’s observation that the current term of community work was to continue. Under s 68(3), the Court has a discretion
to do one of three things. It cannot maintain the original sentence and in addition impose a further penalty.
[22] Here, the Judge expressly vacated the sentence earlier imposed, but then went on to say that the term of community work was to continue. The two statements are at odds. The Judge, having “vacated” or cancelled the earlier sentence, should have substituted a new sentence of community detention, together with community work, if that is what he considered was the appropriate sentence to impose. This process was not followed. Nor is it clear how the new sentence was reached.
[23] In re-sentencing under s 68(3)(c), a Judge must form his or her own view as to the appropriate sentence for the offence or offences in question. The subsection focuses upon the time the original sentence was imposed, and therefore the Court should be concerned to impose a sentence that could have been imposed on the offender originally.1 As was noted by the Court of Appeal in R v Morgan, a substituted sentence should not include any element of sanction for the failure to comply with the community work sentence. Section 71 creates the specific offence of breach of a community work sentence, and it is the appropriate mechanism to deal with that issue.2 Where an offender with the benefit of a less restrictive alternative, for example a community work sentence, breaches that sentence, then it may well be appropriate to substitute a firmer sentence. In such cases there will inevitably be a greater degree of hardship for the offender. That is not inappropriate because the offender has failed to take advantage of the less restrictive alternative.3 Accordingly, while there must be some proportionality between the sentence originally imposed and the substituted sentence, it is not necessary that there be any strict correlation between them, much less some mathematical formula.4 The essential point is that the substituted sentence must be one that could properly have been imposed initially, and it must be imposed against the background that a sentence of community work
was originally thought to be appropriate.
1 R v Phillips CA 379/90, 22 May 1991 at 3; White v Police HC Hamilton CRI 2006-419-44,
6 April 2006 at [13]; R v Morgan [2008] NZCA 232 at [13].
2 R v Morgan at [13]; R v Phillips at 3.
3 R v Morgan at [14].
4 R v Morgan at [15].
[24] Here, it seems to me that the sentencing process has miscarried. The substituted sentence had to be imposed against the background to the sentence of
150 hours’ community work, which was initially seen as the appropriate sentence. The substituted sentence should also have acknowledged that Mr Newman had already served nine and a half hours of the original sentence. Rather than set aside the original sentence, and reconsider the appropriate sentence, the Judge simply added an additional sentence of three months’ community detention to the existing sentence of community work. The result was that the end sentence imposed on
10 December 2010 was one which was not available to the Court. Moreover, the total sentence was manifestly excessive, given that a sentence of 150 hours’ community work was initially seen as the appropriate sentence.
[25] Accordingly, I allow the appeal and I quash the sentence of community work imposed by Judge Rota.
[26] Mr Newman has already served part of the sentence imposed by the Judge, namely three months’ community detention. That is a more restrictive sentence than the community-based sentence of community work.5 Nevertheless, it is difficult to escape the conclusion that Mr Newman is simply trying to pick a sentence which has minimum inconvenience for him and which he is happy to serve. The Judge clearly formed the view that there was no reason why Mr Newman should not serve a
sentence of community work. I agree with him, and it is hard to escape that conclusion. Mr Newman himself says that he can undertake light duties. So does his doctor. He is able to work part-time as a DJ. There is no good reason why Mr Newman should not serve a short sentence of community work in addition to the sentence of community detention he has already served. In my view, Mr Newman should complete an additional sentence of 70 hours’ community work and I pass sentence accordingly. In reaching that figure, I have taken into account the sentence originally imposed, the fact that he has completed nine and a half hours of that sentence, the fact that he has served a sentence of three months’ community detention, and the pre-sentence report. If Mr Newman breaches this additional
sentence, it will be open to him or to the Probation Service to apply afresh under
5 Sentencing Act 2002, s 10.
s 68, and for the Probation Service to charge Mr Newman with an offence under s 71.
[27] The start date of this additional sentence of community work is Wednesday,
3 August 2011. Mr Newman is to report to a probation officer in the probation area in which he resides as soon as practicable, and not later than 72 hours after 3 August
2011. During the course of his sentence, Mr Newman must comply with the terms of the sentence. He must report to a probation officer at any time that he is directed to do so, and he must work as directed by his probation officer until completion of the sentence. The sentence must be served within six months of 3 August 2011. The
provisions of ss 58, 60, 64, 66A, 66D and 67 of the Act apply.
Wylie J
0