R v Geldard
[2020] NZHC 372
•3 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-277
[2020] NZHC 372
THE QUEEN v
NADINE GELDARD
Hearing: On the papers Judgment:
3 March 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 3 March 2020 at 4.00 pm.
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Counsel: M Ryan, Auckland
Copy To: Probation Service
R v GELDARD [2020] NZHC 372 [3 March 2020]
Introduction
[1] This is an application by Probation Officer Emily Ioane to cancel a sentence of 12 months’ home detention I imposed on Nadine Geldard on 14 June 2019.
[2] Ms Geldard consents to the application and the Crown has advised that it is not a party to the application and does not propose to take any steps on the application.
[3]Accordingly, I will determine the application on the papers.
Background to the sentence imposed
[4] Ms Geldard was charged with one representative charge of supplying 10 to 15 grams of methamphetamine pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975.
The maximum penalty is life imprisonment.1
[5] On 26 March 2019, I gave Ms Geldard a sentence indication of two years’ imprisonment with the possibility of home detention depending on the contents of the Provision of Advice to the Court and any other personal matters raised on her behalf at sentencing.2 Ms Geldard accepted the sentence indication.
[6] Of relevance to the present application are the references in the sentence indication regarding Ms Geldard’s health. I set out those paragraphs below:
[22] A significant personal mitigating factor that is known to the Court at this stage are the health complications arising from your diabetes. This is well documented in a minute of Davison J on 18 August 2017, when he severed your trial. You suffer from type one diabetes and have a history of osteomyelitis which affects both your feet. One of the reports provided to Davison J advises that you were admitted to hospital on 15 August 2017 and on presentation had “severe life-threatening hyperglycaemia” and required an intravenous insulin infusion and specialist hospital-based assessment and management. At that time, you required specialist footwear to aid in the healing of a fracture in your left foot. The doctor said that you “require[d] specialist podiatry input to attend to [your] diabetic foot disease with active ulceration”. It was clear at that time there was a need for on-going treatment.
[23] This morning Mr Ryan has filed a letter from your GP dated 25 March 2019 which reads as follows:
1 Misuse of Drugs Act 1975, s 6(2)(a).
2 R v Geldard [2019] NZHC 576 at [28].
Nadine is an insulin dependent Diabetes Mellitus. She has recently undergone a right leg below knee amputation in late November 2018. This was mainly due to osteomyelitis in her right lower limb secondary to a poorly controlled blood sugar.
Due to the process of the surgery and major life changes that it brings with it in terms of recovery, healing and moving forward in the future. It is in my medical opinion that Nadine should not be considered for a judicial sentence based at a corrections faculty [sic] but rather to be considered for a home dentention [sic], should she be found to be guilty.
There are a few key factors contributing to the recovery of Nadine’s future including her health. These are a stablised [sic] blood sugar control, her better living situation, her ability to attend specialist appointments as required and a few months of intensive physiotherapy/rehabilitation while she prepared to adjust with prosthelic [sic] leg in the future (a long term goal).
[24] At this stage you are in a wheelchair and Mr Ryan advises the Court that there is potential for your left leg to also be amputated.
[25] I accept that some leniency may be shown in sentencing, as prison would constitute a more severe penalty for you due to your medical condition. I would be prepared to give you a discount of six months for your medical condition.
[7]I referred to Ms Geldard’s health again in my sentencing remarks.3
[11] I first turn to your medical condition as a personal mitigating factor. This factor was discussed in my sentence indication. Given that I now have the PAC report along with an updated medical certificate dated 11 June 2019 and a report dated 27 May 2019 from the ADHB (Adult Community Services), both provided by Mr Ryan, I am in a position to consider this factor more fully.
[12] Ms Geldard, you have type one diabetes. In late November 2018, due to your diabetes, you underwent a below-the-knee amputation of your right leg. As a result, you have been attending rehabilitation and psychological counselling. The amputation has had a significant impact on your life. It has limited your ability to leave the house and you are now dependent on your partner.
[13] Accordingly, as foreshadowed in my sentence indication, I allow a discount of six months for your medical condition.
[8] The sentence of 12 months’ home detention was subject to the standard conditions and special conditions.4
3 R v Geldard [2019] NZHC 1351.
4 At [38].
Application and affidavit
[9] Ms Ioane applies under s 80F(4)(d) of the Sentencing Act 2002 to cancel the sentence of home detention and substitute a sentence of intensive supervision. In her affidavit in support of the application, Ms Ioane states that Ms Geldard asked if her ankle bracelet could be moved to her wrist for medical reasons. Ms Ioane notes that Ms Geldard’s GP raised concerns with the bracelet on Ms Geldard’s ankle causing skin irritation and blisters leading to infection and possibly another amputation. On 16 July 2019 the ankle bracelet was moved to Ms Geldard’s wrist.
[10] Subsequently, on 19 July 2019, Ms Ioane received a letter from Jenny Luke, a podiatrist at the Auckland Diabetes Centre at Greenlane Clinical Centre advising that, based on a clinical assessment, Ms Luke supported Ms Geldard’s application to move the ankle bracelet to her arm. Ms Luke’s letter recorded that Ms Geldard attended the High Risk Food Clinic (HRFC) regularly to review her left foot wound. At the previous appointment it had been noted that Ms Geldard had evidence of rubbing on the inside of her ankle from the bracelet. Ms Luke stated that sustaining wounds on her foot or leg, from any cause, is a major risk for infection, chronic ulcers and possible amputation. Ms Luke mentioned the previous right below knee amputation, a left big toe amputation and said Ms Geldard currently had a chronic wound on her left second toe.
[11] Ms Ioane later received a further report dated 25 September 2019 from a doctor at the Auckland Diabetes Centre which records: “Osteomyelitis of the left 2nd toe with amputation 2nd toe and MT head and partial Amputation 3, 4, 5 toes in August 2019”.
[12] Ms Ioane says that on 12 January 2020, Ms Geldard was admitted to Auckland Hospital due to concerns relating to her left foot and it appears she had an operation. Ms Geldard was discharged from hospital on 18 January 2020. Ms Ioane says that given Ms Geldard’s appearance and current circumstances, Community Corrections would be concerned that subjecting Ms Geldard to the remainder of her home detention sentence may exacerbate her health issues causing further distress, anxiety and safety issues. She says the substitution of Intensive Supervision would allow Community Probation to have prolonged oversight of Ms Geldard to assist with her
rehabilitation needs, while supporting her with being able to freely attend further medical appointments, counselling and programs. She recommends that special conditions, which she specifies, be imposed.
Discussion
[13] Supervision is designed to reduce the risk of further offending through supervised rehabilitation and reintegration of the offender. Intensive supervision is more restrictive than supervision, but less restrictive than home detention or imprisonment. A Court may only substitute a sentence of intensive supervision if such sentence could have been imposed on Ms Geldard at the time she was convicted of the offence for which the sentence of home detention was imposed.5
[14] I accept that the Court could have imposed a sentence of intensive supervision on Ms Geldard at the time of sentencing having regard to her rehabilitative needs. I referred to Ms Geldard’s efforts at rehabilitation in my sentencing remarks.6 She has now served seven months of the home detention sentence. To that extent, the punitive aspect of her sentence has been met.
[15] The substituted sentence is also appropriate having regard to Ms Geldard’s continuing medical issues. A sentence of intensive supervision would enable her to freely attend further medical appointments.
Result
[16] The sentence of home detention is cancelled as from the date of this judgment and substituted with a sentence of intensive supervision; such sentence to be effective until 13 June 2020 (the date on which the sentence of home detention would have expired).
[17] As well as the standard conditions of intensive supervision, I impose the following special conditions:
5 Sentencing Act 2002, s 80F(4)(d).
6 R v Geldard [2019] NZHC 1351 at[21].
(a)To continue attending Alcohol and Drug counselling if directed by a Probation Officer;
(b)Not to possess, consume or use any alcohol or drugs not prescribed to Ms Geldard;
(c)Not to associate with or contact Toni Clare Nikora without the prior written approval of a Probation Officer; and
(d)Undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.
Gordon J
0