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 drug addiction.  In the sentencing notes I observed that a sentence of home detention which involved Mr McLaren completing the rehabilitation programme at Odyssey House would impose a greater restriction on his movements than would a sentence of imprisonment. At [20] I specifically stated:

The sentence of home detention I am going to impose will have a more stern impact on you than what would have happened if I had imposed a sentence of 27 months imprisonment.

[6]      I  recognised  that  the  sentencing  of  Mr  McLaren  presented  a  unique combination of circumstances.  The sentence of 11 months’ home detention and the post detention conditions were designed to give Mr McLaren the best opportunity to rehabilitate himself and to overcome his drug addiction.  This addiction was seen as a major contributing factor in his previous offending.   Further, Mr McLaren had indicated he wanted to  do all he could to overcome his drug addiction and he recognised that continuing with the drug addiction programme at Odyssey House that was a term of his bail was his best opportunity to overcome the addiction.  For this reason he was agreeable to receiving a sentence of home detention that restricted his freedom of movement for some time rather than a sentence of imprisonment which would have had little practical impact upon him.

[7]      In  sentencing  Mr  McLaren  I placed  great  emphasis  on  his  rehabilitation because had I imposed a sentence of imprisonment the term of that sentence, when measured against the time he had spent in custody, would have led to his immediate release and that would have brought the support he was receiving from Odyssey House to an end. At [19] of the sentencing notes I stated:

If, on the other hand, I were to sentence you to home detention the outcome would be that you could remain at Odyssey House and complete their rehabilitation programme.   You would be required to remain at Odyssey House for a number of months and would be more restricted in your movements for a greater period of time than if I were to sentence you to imprisonment, only for you to be released on parole after a few weeks.

[8]      I have now learnt that 11 days short of the end of the sentence of home detention Mr McLaren absconded.  I understand there is a warrant for his arrest, but

he is yet to be located by police.   I have no explanation from him as to why he decided to abscond.

[9]      The probation officer who made the application before me seeks to have a sentence of imprisonment substituted for the sentence of home detention.   In the circumstances it would be futile for me to impose a sentence of imprisonment on Mr McLaren.   First, he is 11 days short of completing the 11 month sentence of home detention, so any term of imprisonment would be short.   Secondly, had I sentenced him to imprisonment at the outset he would have been eligible for release soon thereafter. Any substitute sentence of imprisonment I might now impose would have to take into account the fact Mr McLaren was close to the end of the sentence of home detention and that in sentencing Mr McLaren I had reached an end sentence of 2 years’ imprisonment.  Mr McLaren was close to the end of the sentence and I could not now increase that end sentence.  Insofar as his breaching the sentence of home detention is an adverse factor against him, that seems to me to be relevant to the penalty he might receive should the probation officer decide to lay a charge against him for that breach.  I do not see the breach as something that would justify an uplift in the term of imprisonment that I would otherwise have imposed upon him at the time of sentencing.  Given the 14 months’ he had spent in custody it is clear that any sentence of imprisonment of 2 years or less that I might now impose would have no practical effect on him.

[10]     Accordingly, I decided the best thing to do in the unique circumstances of Mr McLaren’s case was to cancel the sentence of home detention and not to impose a substitute sentence.