P v Police

[2023] NZHC 402

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-000021

[2023] NZHC 402

BETWEEN

P

Appellant

AND

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing:

28 February 2023

Appearances:

E J Forster for Appellant

M J M Mitchell for Respondents

Judgment:

6 March 2023

JUDGMENT OF VAN BOHEMEN J

[Appeal against sentence]

This judgment was delivered by me on 6 March 2023, at 3:00 pm

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors: E J Forster, Hastings

Crown Solicitor at Napier

P v NEW ZEALAND POLICE [2023] NZHC 402 [6 March 2023]

[1]                 P appeals the sentence of two years and three months’ imprisonment imposed by Judge R J Collins in the District Court in Hastings1 after P pleaded guilty to four charges of breaching a protection order,2 one charge for threatening to cause grievous bodily harm3 and one charge for breaching community work.

[2]                 The charges of breaching a protection order arose from P contacting his daughter twice and his son once by Facebook messenger and from P entering the home of his former partner and mother of his children.

[3]                 P has also pleaded not guilty to one charge of burglary4 arising from P’s entry into his former partner’s home. No trial has taken place on the burglary charge.

[4]                 Mr Forster, counsel for P, submits that the sentence is manifestly excessive on the grounds that:

(a)the Judge’s initial starting point was too high as it was based on the burglary charge for which P was not being sentenced at the time;

(b)the Judge’s uplifts for concurrent offending amounted to double punishment;

(c)the Judge’s uplift for P’s previous convictions was too high, bearing in mind the sentences imposed for the previous offending; and

(d)P was entitled to a full 25 per cent guilty plea for entering his pleas at the earliest possible opportunity, as opposed to the 20 per cent discount he was given.

[5]The Police oppose the appeal.

1      Police v P [2022] NZDC 23563.

2      Family Violence Act 2018, ss 90(a) and (b) and 112(1)(a). Maximum penalty 3 years’ imprisonment.

3      Crimes Act 1961, s 306. Maximum penalty 7 years’ imprisonment.

4      Crimes Act 1961, s 231. Maximum penalty 10 years’ imprisonment

Background

[6]                 The following account is taken principally from the Police summary of facts, which is the same summary of facts that forms the basis of the burglary charge.

[7]                 P was in a relationship with the victim for approximately 18 years. They have three children together.

[8]                 P and the victim have been separated since February 2022. Since then, the victim blocked P’s phone number and Facebook messenger, in order to prevent him from communicating with her. There have been seven previous family harm incidents between the pair which have been recorded by Police.

[9]                 On 28 February 2020, a final protection order was issued by the Hastings District Court against P. The order listed the victim and his three children as protected persons. P was served the protection order on 13 March 2020.

[10]              On 3 September 2022, at approximately 4:05 pm, P sent a Facebook message to his daughter. The message referred derogatorily to the victim’s new partner, that he hated the victim and that, in reference to the victim, “if i c her anywea I’m gna attack the bitch”. His daughter was concerned about the message and advised her mother, the victim.

[11]              The same day, at approximately 5:59 pm, P sent another Facebook message to his daughter, stating: “I’m goin to find ur mother and bash tf outta her”. As the Police summary of facts explain, the acronym “tf” is short for “the fuck” and is commonly used for messaging. Again, the daughter advised her mother, the victim.

[12]              On 4 September 2022, at approximately 3:30 pm, P was at his Hastings home when he sent his son a Facebook message stating:

“U in Flax, ima smash the blue car up, I don’t give a fuk no more, blame ur slutty mother, she’s gna get a hammer to the head”.

[13]The son told his mother about this message.

[14]              P became angry and drove his car 40 kilometres from his address to the victim’s home in Waipukurau, arriving at approximately 4:00 pm. After realising that no one was home, P walked to the rear of the property and entered the house through an unsecure door. He entered the victim’s bedroom, throwing all of the victim’s belongings off her dresser and onto the ground. He picked up a green whiteboard marker and wrote the words “slut” and “whore” on two of the victim’s bedroom walls. These words were approximately 40 centimetres in length and 15 centimetres in height.

[15]              Using a craft knife, P slashed several photographs of the victim that were on her side table, targeting the victim’s face. The defendant then exited the house and proceeded to get back into his vehicle.

[16]              The victim and their children returned home while P was reversing out. The victim drove up the driveway to get herself and the children inside the house, locking the door behind them. Once inside, the victim observed the damage caused by P. Through her bedroom window, she observed P’s car parked across her driveway. After calling out to him to ask why he had trashed her room, he replied “you know what you are bitch” and drove off.

The District Court decision

[17]              Judge Collins began by noting that the Court would have to be cleared in a few minutes so he would have to be quick. However, he said he did not want to be seen to have rushed P’s sentencing.5

[18]              Judge Collins set out the elements of P’s offending as described in the summary of facts. He said the offending earlier on 3 September 2022 was “serious enough” and what followed was “even far more serious”. P had gone “in a rage” to the victim’s house and had entered the property. The Judge was disturbed that P had a key to the property of someone who had a protection order against him, which suggested coercion or control. But the Judge then said that was neither here nor there. One way

5      At that time, the Public Service Association was involved in a dispute with the Ministry of Justice. Court staff who were members of the Association were working to rule.

or another P had entered the victim’s house. The Judge said it defied belief that P might have thought he had authority to enter the home.

[19]              The Judge noted that community-based sentences had been imposed on three occasions in January, June and October 2020 for breaches of the protection order, as well as assaults on a person in a family relationship. The Judge also noted that it was clear from the pre-sentence report and the submissions of P’s counsel that methamphetamine use played a material part in P’s offending

[20]              In setting a starting point for the sentence the Judge referred to P’s intrusion into the victim’s home as follows:

[16]      I regard the entry into the home on 4 September as the absolute equivalent to a burglary. Now I appreciate there is a charge of burglary out there to which you have pleaded not guilty, and you have heard the discussion between Mr Neumegen and myself about that. Burglary involves entering someone’s home without authority with the intention of committing a crime or having entered someone’s home without authority, staying in the home and then deciding to commit an imprisonable offence.

[17]      So even if you did not intend to deface her photographs and write “slut” and “whore” on the wall when you went in, when you were in the home you decided to do that at some point. To me there is no difference between the protection order charge on that and a charge of burglary.

[18]      Now the Court of Appeal which obviously sits a lot higher in the scheme of things than I do has observed that the normal range for a burglary of someone’s home is between 18 months’ imprisonment and two and a half years. Now in some ways this could be seen to be a really serious case of burglary because of the emotional damage that has been inflicted on the victim. But I will take the point most favourable to you as I can and take the lowest part of that range and set the starting point for that offence, that protection order where you cut up the photographs and wrote those words on the wall as being one of 18 months’ imprisonment.

[21]              The Judge applied a nine-month uplift for the other three breach of protection order charges, a further uplift of six months for P’s threat to cause grievous bodily harm, a further one-month uplift for his breach of community work, and a six-month uplift for P’s previous seven convictions for violence and breaching protection orders against the victim. This resulted in a final adjusted starting point of three years and four months’ imprisonment.6

6      Police v P, above n 1, at [19]-[20].

[22]              The Judge then applied a 20 per cent discount for P’s guilty pleas, which he assessed as the worth of the pleas, and a five per cent discount to take account of P’s “drug abuse”. This resulted in an end sentence of two years and three months’ imprisonment. Accordingly, a sentence of home detention was unavailable.

Approach on appeal

[23]              An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.7

[24]              Section 251 of the CPA provides that if a Court allows an appeal against sentence it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.

[25]              The Court of Appeal has confirmed that, in applying s 250(2) of the CPA, the Court should continue to apply its long-established approach to reviewing sentences.8 An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.9 Unless there is a material error in the end sentence, the Court will not intervene.10 There will be a material error if the end sentence is manifestly excessive or wrong in principle.11 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.12 However, there may be cases where there has been error that requires correction, even if the sentence imposed is within range.13

7      Criminal Procedure Act 2011, s 250(3).

8      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14].

9      Tamihana v R [2015], above n 8, at [14] and [29]–[30].

10     Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 8, at [14].

11     Tamihana v R, above n 8, at [14].

12     Tutakangahau v R , above n 8, at [36]; Tamihana v R , above n 8, at [14].

13     Tutakangahau v R , above n 8, at [36]

Submissions for P

[26]              P’s appeal is advanced essentially on four grounds: the starting point was too high; the uplift for concurrent offending amounted to double punishment; the uplift for relevant previous convictions was too high and the discount for the guilty plea was insufficient.

The starting point

[27]              Mr Forster says the Judge erred because he effectively set a starting point based on a charge for burglary, despite the fact that P was not for sentencing on that charge. As a consequence, the initial starting point was too high because it was based on the burglary charge, which carries a maximum penalty of ten years’ imprisonment, rather than the breach of protection order, which carries only a maximum penalty of three years’ imprisonment.

[28]              Mr Forster says the Judge’s focus on the burglary and his negative observations about P’s having a key and entering the house do not take into account the reality that P and his former partner share custody of their children and have to see each other from time to time, despite the protection order. Mr Forster says the Judge also failed to take into account that P has pleaded not guilty to the burglary charge, which has yet to be tried and disputes the Police summary of facts as it relates to that charge.

[29]              Mr Forster says he drew attention in his submissions at sentencing to the fact the burglary charge had still to be dealt with. The defence had not been sure it would proceed. However, if P was to be sentenced on the basis of the summary of facts as it related to the burglary charge, at the least there should have been a disputed facts hearing before sentence. However, Mr Forster did not propose that the sentence should be set aside and remitted back to the District Court for reconsideration.

Other grounds of appeal

[30]              In support of his second ground, Mr Forster refers to Orchard v R, where the Court of Appeal accepted that an uplift for a breach of a protection order that involved the same actus reus, or physical act, as another charge which had already been taken

into account in setting a starting point was not justified.14 Mr Forster submits that the threat to cause grievous bodily harm involved the same physical act as the breach of protection order charges, the Judge’s uplift was unjustified.

[31]              On the third ground, Mr Forster says that, although the Judge referred to seven breaches of the protection order, they really related to three discrete incidents. In any event, he submits that the uplift for P’s relevant convictions was disproportionate to the original community-based sentences imposed on him for these offences.

[32]              On the fourth ground, Mr Forster submits that the Judge did not give a sufficient discount for P’s early guilty plea. He says P entered his guilty pleas at the earliest reasonable opportunity and should be entitled to a 25 per cent discount as directed by the Supreme Court in R v Hessell.15 Mr Forster says to depart from Hessell and provide no reasons is itself an error.

Submissions for Police

[33]              Ms Mitchell, counsel for Police, submits that the Judge did not err in setting the initial starting point, nor in the uplifts that resulted in the Judge’s final starting point. Ms Mitchell submits that the Judge adopted P’s fourth charge of breaching the protection order (which arose from the 4 September 2022 intrusion) as the lead offence and that the Judge simply drew a parallel with the offence of burglary, given the elements for each offence were the same. Ms Mitchell submits that the circumstances of that particular breach of protection order which involved planning and premeditation, an unauthorised entry into the victim’s home, and damage to the victim’s property all make the offending particularly serious. In this light, Ms Mitchell submits that the Judge cannot have erred in adopting a starting point for that offending that was just over half of the maximum penalty for that offence. Referring to Cull J’s analysis of  similar  breach  of  protection  order  cases  in  Thompson  v  Police,16  Ms Mitchell submits that the gravity of P’s offending exceeds that in the cases referred to by Cull J, and that this further demonstrates that the starting point the Judge adopted was justified.

14     Orchard v R [2019] NZCA 529 at [40].

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, (2010) CRNZ 966.

16     Thompson v Police [2020] NZHC 20 at [20].

[34]              Ms Mitchell further submits that the Judge did not err in uplifting that starting point to account for the additional offences. The other breaches were targeted at the children who were different victims. The fact that the abuse was levelled against their mother was a further aggravating  factor  which  justified  the  nine-month  uplift.  Ms Mitchell also says there was no double counting in applying a further uplift for P’s threatening to cause grievous bodily harm when this threat was included in the communications that form the basis of the charges of breach of the protection order that relate to P’s children. The threat to cause grievous bodily harm to the children’s mother was separate from the fact of those communications.

[35]              Ms Mitchell submits that although P entered his plea early, the discount of 20 per cent is warranted, bearing in mind that the Supreme Court in Hessell v R said that any credit given must truly reflect all the circumstances of the case, including the strength of the prosecution’s case.17 Ms Mitchell submits that the discount must be seen in light of the strength of the prosecution’s case which included an independent record of P’s messages and that he was seen leaving the victim’s house by the victim and their children. Ms Mitchell also says the five per cent discount given because P was under the influence of drugs at the time of his offending can be considered generous.

Analysis

Initial Starting Point

[36]              While the conventional approach for sentencing involving multiple offences is to set an initial starting point by reference to the most serious offence and then to apply uplifts to reflect the other offending, this is not an iron clad rule.18 In the context of the offending for which P was being sentenced, it was appropriate to set the starting point for the sentence by reference to the breach of the protection order involving the physical entry into the victim’s house, rather than by reference to the threat to cause grievous bodily harm, which was made indirectly in text messages sent to P’s children.

17     Hessell, above n 15, at [74].

18     Maihi v R [2016] NZCA 205 at [22].

[37]              As the Judge observed, that breach of the protection order involved actions that may also constitute burglary, bearing in mind that, as provided in s 231 of the Crimes Act, burglary can involve entering a building without authority with intent to commit an imprisonable offence. While P had pleaded not guilty to burglary, he had pleaded guilty to the charge of breach of the protection order on the basis of a summary of facts that established conclusively that he was in the victim’s house without authority and had caused damage to the victim’s property. That is so, regardless of the basis on which P had possession of a key.

[38]              For that reason, I see no error in the Judge drawing attention to the fact that the entry into the home in breach of the protection order was equivalent to burglary.

[39]              It is unusual that the Judge apparently set the initial starting point by reference to the range of starting points for burglary. However, I consider that he intended to underline to P the seriousness of what he had done rather than to set a sentence as if P was guilty of burglary. This is supported by the fact that the Judge expressly noted that he appreciated that P had not pleaded guilty to the burglary charge and that, when setting the initial starting point, the Judge said he was setting it for the breach of the protection order.

[40]              The important question is whether the starting point of 18 months’ imprisonment was appropriate for that offence.

[41]              There is no tariff for breach of a protection order. Sentencing has to follow first principles. That involves consideration of the purposes and principles of sentencing, and any aggravating and mitigating factors of the offending and the offender, as set out in ss 7, 8 and 9 of the Sentencing Act 2002. Regard must also be had to decisions concerning comparable offending.

[42]As Wylie J observed in Morris-Stewart v Police:19

[15] The Court of Appeal has stated that the Courts should uphold the integrity of protection orders and respond sternly to those who flout their force and effect. Orders are intended to ensure that the recipient of the protection order is secure and inviolate. Repeated breaches of protection orders call for

19     Morris-Stewart v Police [2016] NZHC 1030 (footnotes omitted).

a condign sentencing response. Where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.

[43]              As Judge Collins made clear in his discussion of P’s breach of the protection order with respect to his former partner, P’s offending was serious. It was considerably more serious than in any of the decisions discussed by Cull J in Thompson v Police.20

[44]              Of those decisions, the highest starting point was 15 months’ imprisonment as adopted in Crean v Police.21 Brewer J considered that starting point appropriate where the appellant had pleaded guilty to two charges of breach of a protection order, both arising from occasions when the appellant had been at the victim’s house apparently with the victim’s consent, but had then refused to leave despite the victim’s repeated requests. On one occasion, the victim had had to leave their house to get away from the appellant, eventually hiding in a public toilet a kilometre away to get away from him.22

[45]              A starting point of 15 months’ imprisonment was also adopted in Narayan v Police, where the appellant had committed two breaches of a protection order, one of which involved taking a machete to the victim’s house and threatened to kill himself if she would not take him back.23

[46]Starting points of 18 months’ imprisonment were adopted in Woods v Police

and Waterman v Police: 24

(a)In Woods, the appellant was sentenced on 10 charges of breaching a protection order and three charges of wilful trespass. The breaches involved sending emails, unsolicited gifts, text messages and telephone calls which included references to death and suicide, and approaching the protected person while she was shopping and prevailing upon an associate to approach her. On appeal, a starting point of 18 months’ imprisonment was adopted.25

20     Thomson v Police, above n 16, at [20].

21     Crean v Police [2015] NZHC 3203

22 At [20].

23     Narayan v Police [2014] NZHC 1241.

24     Woods v Police [2015] NZHC 305; Waterman v Police [2015] NZHC 305.

25     Woods v Police, above n 24, at [56].

(b)In Waterman, the appellant was sentenced, in part, on four breaches of a protection order which involved going to the victim's address several times in the night, refusing to leave and taking items of the victim's property as a form of intimidation. On appeal, a starting point of 18 months’ imprisonment was adopted.26

[47]              Although Narayan, Woods and Waterman involved multiple breaches of a protection order with respect to the same victim, I consider the levels of culpability in those cases was broadly equivalent to that of P, whose single breach was individually serious for the reasons given by the Judge. Given these decisions, I am satisfied that the starting point of 18 months’ imprisonment adopted by the District Court Judge was available to him given the seriousness of the intrusion into the victim’s property and given that the offending clearly involved premeditation. That is apparent from the fact that P drove some 40 kilometres to the victim’s home. This cannot be considered a spur of the moment event, despite Mr Forster’s assertion on behalf of his client that P had only “lost it” when he got inside the house.

[48]              I am satisfied, therefore, that the Judge made no error in adopting a starting point of 18 months’ imprisonment.

Uplifts for other concurrent offending

[49]              I am satisfied the Judge did not make an error when applying a separate uplift for the charge of threating to cause grievous bodily harm. The actus reus of the breaches of the protection order relating to the children was the fact of contacting the children, aggravated by, as the Judge noted, saying highly harmful and hurtful things about their mother. The threat to cause grievous bodily harm to the mother, although contained in those messages, was distinct from the actions that made up the breaches of the protection order.

26     Waterman, above n 25, at [25].

Uplift for previous offences

[50]              I consider the Judge’s uplift for P’s prior offending to be problematic in two respects.

[51]              First, as the Court of Appeal said in Mitchell v R, sentencing for breach of a protection order can and should take account of past offences involving breaches of the protection order.27 That observation was made in the context of upholding a sentence where the sentencing judge took into account past offending when assessing the gravity of the offending for the purposes of setting the initial starting point. In that case, the 80 previous convictions for breaching or attempting to breach a protection order were a large part of the reason for the starting point adopted of two years and six months’ imprisonment. No separate uplift was added with respect to the past breaches.

[52]Brewer J took a similar approach in Crean v Police¸ where he said:28

… the breaching of Court orders, including protection orders, is one of the types of offending where prior convictions are integral to the assessment of the gravity of the index offending. This is because a history of previous breaches is directly relevant to the assessment of the gravity of the most recent offending and to the culpability of the offender. But care must be taken to ensure there is no double counting of previous convictions when aggravating personal circumstances are assessed at the second stage of the sentencing exercise.

[53]              It is common ground that Judge Collins did not take account of P’s previous breaches of the protection order when setting the initial starting point. As already discussed, the Judge set the starting point by reference to the range of starting points applicable for burglary. Had the Judge taken P’s prior convictions for breach of the protection order into account at that stage, I doubt he would have adjusted the starting point appreciably, given that 18 months’ imprisonment is already higher than starting points adopted in many cases for breaches of protection orders. In any event, I am confident the Judge would not have adopted a starting point of two years, which is the effect of his separate uplift.

27     Mitchell v R [2022] NZCA 159 at [50].

28     Crean v Police, above n 21, at [16].

[54]              Secondly, as the Court of Appeal observed in Orchard v R, any uplift for previous offending must be proportionate to the sentence imposed for the original offence and is unlikely to be proportionate if it exceeds the prior sentence.29 In Orchard, the Court of Appeal considered a six-month uplift to take account of prior offending which had attracted sentences of five months’ home detention and one month’s imprisonment constituted a “considerable degree of further punishment”, warranting reduction.30

[55]              In the present case, the Judge imposed a six-month uplift in respect of previous convictions on which P had been sentenced to community work, intensive supervision and supervision. I consider that too constitutes a considerable degree of further punishment that warrants reduction.

[56]              Given that the previous sentences were non-custodial and given my assessment that no significant increase over 18 months would have been applied if the previous convictions had been considered when the initial starting point was set, I am satisfied there should be no separate uplift for the prior convictions for breaches of the protection order and related offending. I set aside, therefore, that aspect of P’s sentence. This reduces the adjusted starting point to two years and 10 months’ imprisonment.

Discount for guilty plea

[57]              It is accepted that P entered his guilty pleas at an early stage. However, it is not the case that every early guilty plea will attract a 25 per cent reduction or that any plea entered later than the first available opportunity will not attract a full 25 per cent reduction. That was effectively the approach adopted by the Court of Appeal in R v Hessell,31 which was set aside by the Supreme Court in its decision in Hessell v R.32

[58]              As the Supreme Court said in its decision in Hessell, to adopt an approach that the maximum discount must be given where a plea is entered promptly, even in the

29     Orchard v R, above n 14, at [41].

30 At [41].

31     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

32     Hessell v R, above n 15.

face of a very strong prosecution case, would treat as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility.33 On the other hand, that approach would also not allow for a reduction where a plea is entered only after resolution of disputed facts.34

[59]As the Supreme Court said:35

Overall, the sentencing task remains one of evaluation that leads to what the judge is satisfied is the right sentence for offending in light of the offender's acknowledgement of guilt and all other relevant circumstances.

[60]              As is clear from the above passage, each sentence is a matter of individual evaluation by the sentencing judge. It follows that there can be no expectation of an automatic discount of 25 per cent just because P entered an early guilty plea.

[61]              The Judge stated only that he assessed the worth of P’s guilty pleas as 20 per cent. The Judge did not say why he selected that level of discount. However, he did make it clear it was the result of specific assessment. While some additional detail would have been desirable, the Judge was under considerable pressure to vacate the Courtroom, as he recorded at the beginning of his sentencing.

[62]              Judge Collins is an experienced Judge and 20 per cent is close to the maximum discount available. In these circumstances, and given that it is clear the Judge turned his mind to the appropriate level of discount, I see no basis for concluding that he erred in setting the discount at 20 per cent.

Net effect of above findings

[63]The effect of the above findings is that I have:

(a)upheld the starting point of 18 months’ imprisonment for the breach of the protection order involving entry of P’s former partner’s home;

33     At [60]

34 At [61].

35 At [65].

(b)upheld the uplift of nine months’ imprisonment for the other breaches of the protection order involving P’s messages to his children;

(c)upheld the uplift of six months’ imprisonment for the charge of threatening to cause grievous bodily harm;

(d)set aside the uplift of six months’ imprisonment for P’s prior convictions for breaches of the protection order and related offending; and

(e)upheld the discount of 20 per cent for P’s guilty plea.

[64]              These findings, together with the uplift of one month’s imprisonment for the breach of community work and the discount of five per cent for P’s drug abuse which have not been challenged, result in:

(a)an adjusted starting point of two years and 10 months’ imprisonment; and

(b)an end sentence of two years and one month’s imprisonment.

[65]Accordingly, P is not eligible for home detention.

Result

[66]I allow P’s appeal in part.

[67]              I quash the sentence imposed by Judge Collins of two years and three months’ imprisonment and substitute a sentence of two years and one month’s imprisonment.

G J van Bohemen J