Newton v Police HC Rotorua CRI-2011-470-000026

[2011] NZHC 1928

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-470-000026

IZAAC ARTHUR NOEL NEWTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 November 2011

Counsel:         T L Te Kani for Appellant

N Belton for Respondent

Judgment:      30 November 2011

JUDGMENT OF ASHER J

Solicitors/Counsel:

Moana Law, DX JP30061, Rotorua 3040. Email:  [email protected]

Crown Solicitor, DX HP40041. Tauranga 3141. Email:  [email protected]

NEWTON V NZ POLICE HC ROT CRI-2011-470-000026 30 November 2011

[1]      This is an appeal lodged by Mr Newton against a sentencing decision of 12

July 2011.   Mr Newton was in breach of his sentence of community work.   For health  reasons  he  was  unable  to  complete  the  48  hours’ community work  then outstanding.  He was convicted and sentenced to a further three months’ community detention, cumulative on an existing sentence of community detention.

[2]      Mr  Newton’s  handwritten  notice  of  appeal  succinctly  and  intelligently highlights the point he wishes to make.   On his behalf Mr Te Kani has accepted instructions  this  morning  to  appear  and  helpfully  and  competently  pursued  the appeal.  He has had discussions with the Crown.  I am grateful to Mr Belton from the Crown Solicitor’s office at Tauranga for appearing on short notice on this matter.

[3]      Mr Te Kani and Mr Belton have had a discussion and it is accepted on behalf of the Department of Corrections that the sentence should be quashed and substituted by a sentence of six weeks’ community detention (which reflects time served).

[4]      It is nevertheless necessary for me to reach a view on the merits of the appeal.  I agree with the assessment of both counsel that this sentence was manifestly excessive.   Community-based sentences of community detention rank third in the hierarchy  of  sentences  and  orders  and  are  more  serious  than  community-based

sentences of community work.1   To equate 48 hours of outstanding community work

with the very considerable infringement on liberty that is suffered by an offender during three months’ community detention was not fair.  The effect was to impose upon Mr Newton a significantly more severe penalty. This was not warranted.

[5]      I make no attempt to make a substantive assessment of what an appropriate sentence of community detention would have been.  What is clear is that it would have been less than the one and a half months already served.   I am therefore

satisfied that the sentence should be quashed and substituted as proposed.

1      Sentencing Act 2002, s 10A.

[6]      The sentence of three months’ community detention imposed on 12 July 2011

is quashed and substituted by a sentence of six weeks’ community detention.

……………………………..

Asher J