R v Dean HC Auckland CRI-2011-004-21077

[2011] NZHC 1962

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-21077

THE QUEEN

v

MAHARA DEAN

Hearing:         6 December 2011

Counsel:         E McCaughan for Crown

M Pecotic for Prisoner

Judgment:      6 December 2011

SENTENCING REMARKS OF LANG J

[on application to cancel or vary sentence of home detention]

R V DEAN HC AK CRI-2011-004-21077 6 December 2011

[1]      On 13 May 2011 Keane J sentenced Mr Dean to 12 months home detention on drug-related charges.[1]    He ordered Mr Dean to serve that sentence at Roberton Lodge in Avondale.

[1] R v Dean HC Auckland CRI-2010-004-21077, 13 May 2011.

[2]      Mr Dean remained at the Lodge between 13 May and 26 September 2011. At that point the authorities decided that either the Lodge was no longer a suitable environment, or that he was no longer a suitable candidate to remain there.   The circumstances  surrounding  that  decision  are  somewhat  murky.     Importantly, however, it is not formally alleged that Mr Dean breached the conditions of his sentence of home detention.

[3]      Mr Dean then appeared before this Court on 30 September 2011, and has been in custody since that date whilst attempting to find a new address at which to resume serving his sentence of home detention.  He has now found a new address, and the Crown and probation have no issue with it.  For that reason I accept that it is appropriate that he should be permitted to resume serving the sentence that Keane J imposed.

[4]      The real issue for present purposes is the length of the new sentence, given the fact that Mr Dean  spent two months and one week in custody between 30

September and today.   The Crown submits that the original sentence was due to expire on 12 May 2012, and that Mr Dean should serve the resumed sentence until that date.  Counsel for Mr Dean submits that some credit should be given for the fact that Mr Dean has spent some two months in custody, even though no formal breach of his sentence of home detention had been alleged.

[5]      I propose to adopt that submission.  Mr Dean is now to serve a sentence of four months home detention, and is to be subject to the following conditions:

1.He is to travel directly from Court to 189 Avondale Road, Avondale, Auckland  and  is  to  await  the  arrival  of  the  probation  officer  and

monitoring service there.

2.He is to reside at that address throughout the duration of the sentence and is only to leave it with the prior approval of his probation officer.

3.He is not to consume or be in possession of any alcohol or illegal drugs for the duration of his sentence.

4.He is to undertake an assessment for any harmful pattern of alcohol and drug use and, if found suitable, he is to attend and complete any programme  or  counselling  to  the  satisfaction  of  the  programme

provider and his probation officer.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
M Pecotic, Auckland