P v Police HC Gisborne CRI 2010-416-3

[2010] NZHC 425

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-416-3

P

Appellant

v

POLICE

Respondent

Hearing:         5 March 2010

Appearances: J Owers for appellant

S Manning for respondent

Judgment:      5 March 2010

ORAL JUDGMENT OF ALLAN J

Solicitors:

Woodward Chrisp, Gisborne

Crown Solicitor Gisborne

P V POLICE HC GIS CRI 2010-416-3  5 March 2010

[1]      Mr P   appeals against a sentence of six months home detention imposed upon  him  in  the  Wairoa  District  Court  on  14  January 2010  by Judge  Adeane. Mr P   had pleaded guilty at an early stage to a charge of attempted burglary.  The learned Judge characterised the circumstances as unusual, an accurate description of what occurred.

[2]      Mr P   was in central Wairoa at night, accompanied by some associates.  He admits he had a little earlier consumed some P on an experimental basis and was affected  by it.    One  of  his  associates  suggested  he  could  raise  some  funds  by breaking a window in a pharmacy and helping himself to a display television set. Mr P   did exactly that.   He made two unsuccessful attempts to break the front window of the pharmacy and succeeded on the third occasion.   It appears that the television set itself was damaged as a result.  Perhaps for that reason Mr P   did not ultimately  help  himself  to  the  television  set.    He  was  therefore  charged  with attempted burglary and not burglary itself.

[3]      The next  day Mr P    handed  himself  in  to  the police and  admitted  the offending.  The current charge followed.

[4]      In  the  District  Court  Judge  Adeane  referred  to  the  circumstances  of  the offending and of Mr P   only very briefly.   In particular he referred to the pre- sentence report in which the probation officer noted that Mr P   has some admitted mental health difficulties, but said he is in need of immediate rehabilitative training and oversight.  The Judge immediately proceeded to impose a sentence of six months home detention, without taking the conventional route of first considering whether a short term sentence of imprisonment was otherwise appropriate.   The Judge noted Mr Owers’ submission to the effect that community detention was the appropriate sentence, but considered that home detention presented a number of reformatory opportunities which community detention did not.

[5]      The ultimate sentence of six months home detention was imposed on the conditions set out in the pre-sentence report.   Reparation of $3,410 was sought. Mr P   had agreed to pay reparation through restorative justice initiatives.  He had

offered to pay the sum at $50 per week, the whole of his discretionary weekly income.  The Judge made a reparation order accordingly.

[6]      Mr Owers submits this morning that the Judge was wrong in several respects. First, it is said the Judge had no jurisdiction to impose a sentence of home detention without identifying a short term sentence of imprisonment that would otherwise have been appropriate.  I do not propose to discuss that submission.  There is something in Mr Manning’s argument that this very experienced Judge must be taken to have identified a short term sentence without articulating it, but the appeal can be approached on another basis, which does not require detailed consideration of the jurisdictional point.

[7]      Mr Owers refers also to the fact that Mr P   effectively handed himself in, and  that  he  admitted  to  a  course  of  conduct  which  resulted  in  the  charge  he ultimately faced.   Mr Owers submits that had Mr P   not self-reported then the police may never have identified the offender.  Moreover, he submits, the admission made by him resulted in a charge more serious than the wilful damage charge which the obvious damage to the premises would have supported.

[8]      Mr  Owers  also  points  to  Mr P  ’s  participation  in  restorative  justice initiatives and to his early offer to pay reparation in the full amount of the damage suffered by the pharmacy.

[9]      There is also the circumstance of Mr P  ’s own mental health.  It is common ground that he suffers from schizophrenia for which he is under medication.  By and large, that is sufficient to control his behaviour and enable him to live in the community in the ordinary way.  He has several convictions but they are not relevant for present purposes.

[10]     The writer of the pre-sentence report considered that home detention was desirable  as  a  means  of providing the  degree  of  oversight  and  supervision  that Mr P   needed over the current period.

[11]     The Crown’s position is that the Judge was well justified in adopting the pre- sentence report recommendations, because it is plain Mr P   will benefit from the conditions attached to the sentence of home detention.

[12]     In my view however, there is another side to this appeal.  Mr Owers is correct to identify significant mitigating features which I have already noted;   namely his self-reporting,   his   admission   of   an   intention   to   commit   burglary,   and   his preparedness to pay reparation in full.

[13]     Home  detention  is  of  itself  a  significant  restrictive  penalty just  below  a sentence of imprisonment in the hierarchy.  I accept a conviction for burglary will often attract a custodial sentence, even for a first offender, but a charge of attempted burglary is  lower  in  the scale.    Here  we have  several  features  which  limit  the culpability of this appellant, in the somewhat curious circumstances in which the offending  occurred.    It  does  not  seem  that  Mr P    had  any  logical  or  serious intention of taking the television set and disposing of it for commercial gain.  Rather, he was simply reacting to encouragement from associates, while under the influence of P, to which he was not accustomed.  The degree of culpability here is not as high as is usually encountered in burglary cases.

[14]     The Judge was quite right to identify the need for conditions which assist the authorities in aiding the appellant, but in my view most of the conditions imposed in respect of the sentence of home detention could also have been imposed as part of a sentence of community detention combined with an order for supervision.   The difference between them is essentially that Mr P   is confined to his home under a sentence of home detention on a permanent basis until the sentence expires.  On a sentence of community detention he would normally observe a night time curfew, but would be free to leave the house during the day.  That is an important matter to someone in Mr P  ’s position.

[15]     The conditions which may be imposed in respect of a sentence of supervision are sufficient in my view to achieve all the objectives which the probation officer and Judge Adeane wished to achieve.  The question is whether the substitution of a sentence  of  community  detention,  coupled  with  an  order  for  supervision  would

simply amount to tinkering with what the Judge wished to do.  Mr Manning submits it would.

[16]     I have concluded that the Judge must really have accorded primacy to the issues raised in the pre-sentence report to the effective exclusion of the mitigating factors to which Mr Owers refers today.  I do not think allowing the appeal would amount to tinkering.   It would be the result of a different approach, noting the mitigating factors Mr Owers relies upon.

[17]     For those reasons I propose to allow the appeal.   The sentence of home detention is quashed, and I substitute a sentence of six months supervision combined with five months community detention, upon the following conditions:

a)       Mr P   is to reside at his present address and is to be curfewed at that address between the hours of 7 pm–7am nightly;

b)He is to undertake and complete the alcohol and drug programme administered by the Manaaki House Addiction Centre, Wairoa, or any other suitable provider, and is to abide by the rules of the programme to the satisfaction of the probation officer and the provider;

c)      He is to undertake and complete the Tikanga Maori programme administered  by  Putaki  Marae  at  Wairoa  or  any  other  suitable provider;   he is to abide by the rules of the programme to the satisfaction of the probation officer and the provider;

d)He is to refrain from the consumption of, and not be in possession of, alcohol or illicit drugs for the duration of the sentence of community detention.

C J Allan J