R v E HC Wellington CRI 2006-032-3536

[2009] NZHC 1811

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-032-3536

THE QUEEN

v

E

Hearing:         19 June 2009

Counsel:         M Anderson for Crown

L Sziranyi for Accused

Sentence:       19 June 2009

SENTENCING OF SIMON FRANCE J

[1]      This is an application to cancel Ms E  ’s sentence of nine months’ home detention imposed on 24 September 2008 for possession of methamphetamine for supply.  This sentence expiry date is next week, namely, 23 June 2009.

[2]      I sentenced Ms E   following a jury trial.  At the time I identified the appropriate starting point as three and a half years.  However, for the reasons fully set out in my sentencing remarks I stepped outside the normally appropriate sentence and decided upon a sentence that had rehabilitation as its primary focus.

[3]      On 8 May 2009 I heard an application for Ms E  ’s sentence to be cancelled because of persistent breaches of the conditions of home detention.   I

declined that application on the basis that I did not consider the breaches merited

R V E HC WN CRI 2006-032-3536  19 June 2009

cancellation, particularly in light of the short time there was to run on the sentence, and Ms E  ’s otherwise significant achievements during the course of that sentence.

[4]      On  12 June 2009,  Police  conducted  a  search  at  the  address  at  which Ms E   resides pursuant to her home detention sentence.  At the address there was found a small number of snap lock bags, and a large amount of money.  In the kitchen there was a small set of scales, and a bag containing new and used syringes was found in the bedroom.   Also found is what is alleged to be a tick list, and a cell-phone  which,  the  Police  allege,  contains  evidence  of  dealing  in methamphetamine and ecstasy.  The allegations are denied and the alleged presence of methamphetamine traces on some of the located items is not accepted.

[5]      As a consequence of what was found, Ms E   has been charged in relation to the items found at the house.  Regardless of the outcome of those charges it is accepted that the circumstances mean that the address is no longer a suitable address and that the sentence should be cancelled.

[6]      The   issue   which   arises   is   what   should   be   substituted   in   its   place. Section 80G(2) of the Sentencing Act 2002 requires the Court to have regard to the portion of the “original sentence” not yet served.  In the unusual circumstance of this case the issues arises as to whether the original sentence is the one actually imposed, namely home detention, or the one that would have been imposed but for the Court deciding to step outside the normal range of sentencing.

[7]      The matter has arisen at today’s hearing and three factors lead me to conclude that it is not necessary or wise to seek to resolve that debate.  These three matters are that (1) there is only one week left of the home detention sentence, (2) bail on the present charges is improbable and (3) in any event there is a period of seven weeks pre-trial custodial remand on the original charges which will apply to any substituted sentence imposed today.

[8]      Given those factors, I decline to delay matters by researching the correct approach.   Accordingly, the outcome that I reach today is not intended to be a

comment on the correct approach that would be generally be taken or to limit any future consideration of this issue.

Sentence

[9]      Ms E  :

a)        I cancel the term of nine months home detention;

b)in its place I substitute a term of one month imprisonment on the charge of possessing methamphetamine for supply.

Simon France J

Solicitors:

M Anderson, Luke Cunningham & Clere, PO Box 10357, Wellington,

email:  [email protected]

L Sziranyi, Thomas Dewar Sziranyi Letts, PO Box 31240, Lower Hutt email:  [email protected]