O v Police CRI 2009-483-15 HC Wanganui

[2010] NZHC 1006

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2009-483-15

BETWEEN  O

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 March 2010

Counsel:         D Goodlet for Appellant

J Woodcock for Respondent

Judgment:      31 March 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr O   appeals against a sentence of seven months home detention for breaching a protection order.  It was his fourth such offence since 2008.

[2]      The facts were that on 10 September 2009 he called the victim at 9am and asked if he could visit.  She said no.  At 2.30pm on the same day he turned up at the house, asked to see her, and refused to leave.  He remained sitting on a chair by the front door until the police arrived.  He was moderately intoxicated.

[3]      The Judge sentenced Mr O   to home detention, noting that but for the availability of that sentence he would have been imprisoned for something like 18 months  in  light  of  his  history  of  breaching  the  protection  order.    He  warned Mr O   that he would likely be sentenced to imprisonment if he offended again.

[4]      In  aid  of  the  appeal,  counsel  cites  a  Corrections  Department  document indicating that a home detention sentence of six months or more is a long sentence

O V NEW ZEALAND POLICE  HC WANG CRI 2009-483-15  31 March 2010

and is only appropriate in exceptional cases.  While I recognise that home detention is onerous, I do not think that that can be correct, as a matter of sentencing policy, because the Sentencing Act imposes no such constraint.

[5]      However, the respondent agrees that the sentence was manifestly excessive. The information was laid summarily and the maximum penalty available to the Judge was six months imprisonment, not the two years available indictably.   The Judge appeared to have had in mind a starting point of 18 months, which obviously exceeds  the  maximum  sentence  available  to  him.    However,  because  this  was Mr O  ’s  fifth  breach  a  term  of  imprisonment  was  available.     Further, Mr O   was entitled to a twenty per cent discount for his guilty plea, and some allowance  might  be  made  for  a  short  period  spent  subject  to  restrictive  bail conditions.   The respondent invites me to substitute a term of four months home detention.

[6]      As it happens, that corresponds to Ms Goodlet’s submissions.

[7]      Having regard to Mr O  ’s history, four months home detention is appropriate.  The appeal is allowed.  The sentence is set aside and a sentence of four months home detention substituted.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for Respondent