Probation v McLaren - [2017] NZHC 1134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-004-3439 [2017] NZHC 1134

BETWEEN
JASMIN CAIRNS OF AUCKLAND,

PROBATION OFFICER Applicant

AND

RYAN MCLAREN Respondent

Hearing: 26 May 2017

Appearances:

Heeni Hawe for Applicant
No appearance of Respondent

Judgment:

26 May 2017

Reasons:

29 May 2017

REASONS JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 29 May 2017 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

PROBATION v MCLAREN [2017] NZHC 1134 [26 May 2017]

[1] On 26 May 2017 I heard an application from Jasmin Cairns, probation officer, seeking an order pursuant to s 80F of the Sentencing Act 2002 (the Act) cancelling a sentence of home detention imposed on Ryan McLaren and substituting in its place a sentence of imprisonment. Pursuant to s 80F(4)(c) of the Act I cancelled the sentence of home detention. However, I refused to substitute a sentence of imprisonment or any other sentence. My reasons now follow.

[2] This judgment should be read together with my sentencing notes of 28 June

2016 which record the imposition of a sentence of home detention on Mr McLaren.1

[3] The sentencing notes set out the background to and the reasons for Mr McLaren receiving a sentence of 11 months’ home detention. The following sentencing facts are particularly relevant to the probation officer’s application. First, for the reasons set out in the sentencing notes I reached an end sentence of 2 years’ imprisonment2 which is why Mr McLaren became eligible for a sentence of home detention. I then considered whether I should impose a sentence of home detention.

[4] At [18] of the sentencing notes I recognised that Mr McLaren had spent

14 months in custody. The Crown had contended the appropriate sentence was one of 27 months’ imprisonment. Mr McLaren would have been immediately eligible for parole if I had imposed a sentence of 27 months’ imprisonment.3 I reached an end sentence of 2 years’ imprisonment, which as a short sentence of imprisonment meant Mr McLaren would have been eligible for release after serving half of that sentence.4 Given Mr McLaren had spent more than 12 months in custody a two year sentence of imprisonment meant he would have been eligible for immediate release. Whilst time spent in custody is not to be taken into account when deciding the length of sentence to be imposed, I considered that its effect was relevant to the decision of whether to impose home detention or imprisonment, as there is nothing in the Act
that precludes that consideration.

1      R v McLaren [2016] NZHC 1431.
2      See discussion at [14] to [17] of R v McLaren, above n 1.
3      Parole Act 2002, s 84(1).
4      Parole Act, s 86(1).

[5] By the time Mr McLaren was before me for sentence he had been released from custody and was on bail on terms that required him to reside at Odyssey House and receive treatment for his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Probation v McLaren

Details

AGLC: Probation v McLaren [2017] NZHC 1134
Case: [2017] NZHC 1134
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Jasmin Cairns, a probation officer, applied for an order cancelling a sentence of home detention imposed on Ryan McLaren and substituting a sentence of imprisonment in its place. The case was heard on 26 May 2017, with Heeni Hawe representing the applicant, while the respondent did not appear. The court was required to decide whether the sentence of home detention should be cancelled and substituted with a sentence of imprisonment due to McLaren's breach of the home detention conditions. The primary legal issue was whether the court should impose a substitute sentence of imprisonment given McLaren's near completion of the home detention sentence and the potential futility of such a sentence.

The court considered the unique circumstances of McLaren's case, including his lengthy pre-sentence custody, his drug addiction, and his agreement to a sentence of home detention to facilitate his rehabilitation. The judge had previously imposed a sentence of home detention, believing it would be more impactful on McLaren than a sentence of imprisonment, which would have led to his immediate release. However, McLaren absconded 11 days before the end of his home detention sentence. The court concluded that imposing a sentence of imprisonment at this stage would be futile, as any term of imprisonment would be short and have no practical effect on McLaren. The judge decided that the best course of action was to cancel the sentence of home detention without substituting a new sentence.

Orders