R v Elliot

[2012] NZHC 1162

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2009-016-3799 [2012] NZHC 1162

THE QUEEN

v

RODNEY ELLIOT

Hearing:         28 May 2012

Counsel:         CR Walker for Crown

JG Krebs for Prisoner

Judgment:      28 May 2012

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:          Elvidge & Partners, P O Box 609, Napier for the Crown

(Email:  [email protected] )
JG Krebs, P O Box 754, Napier 4140 for Prisoner

(Email:  [email protected] )

R V RODNEY ELLIOT HC GIS CRI-2009-016-3799 [28 May 2012]

[1]      The Department of Corrections applies, under s 80F of the Sentencing Act

2002, to cancel Mr Elliot’s sentence of nine months home detention.  That sentence was imposed for cannabis dealing offences in October 2011.  The commencement of the sentence of home detention was deferred to 28 December 2011.  It subsequently transpired that the address at which Mr Elliot was to serve his sentence was unsatisfactory  for  electronic  monitoring  purposes.    When  this  was  established, manual monitoring was implemented but that involved an onerous obligation to make frequent trips to the address.

[2]      Mr Elliot then took steps to find a residence which would be suitable for electronic monitoring purposes.  However, regrettably, his partner suffered a stroke and is unable to easily move from the address at which the home detention sentence was  being  served.   There is,  accordingly,  an  acceptance  on  both  sides  that  the application should be granted and the issue becomes what sentence should be substituted for that of home detention.

[3]      Mr Elliot has served five months of the nine months home detention.  It is proposed that a sentence of community work is now imposed, together with a period of supervision.  The Crown proposes 200 hours of community work which Mr Krebs realistically  feels  unable  to  resist.     I  consider  it  to  be  appropriate  in  the circumstances.  Similarly, I agree with what is proposed by both counsel as to the term of supervision.  It should be 16 months which will equate to the period of time that Mr Elliot will have been subject to post-release conditions had he completed his sentence of home detention.

[4]      Accordingly,  the application to cancel the sentence of home detention is granted.  In its place I sentence Mr Elliot to 200 hours of community work and to

16 months of supervision, subject to the conditions:

(a)       That  he  attend  and  complete  alcohol  and  drug  counselling  to  the satisfaction of the probation officer and service provider; and

(b)That  he  attend  and  complete  any  other  counselling,  treatment  or programme as may be directed by the probation officer.

Addendum

[5]      Since the decision was delivered, counsel have pointed out that a sentence of supervision cannot exceed 12 months: s 45(2) Sentencing Act.   The sentence is accordingly amended to substitute a sentence of 12 months supervision.