R v Geldard - [2020] NZHC 372

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Geldard

Details

AGLC: R v Geldard [2020] NZHC 372
Case: [2020] NZHC 372
Decision Date: 3 March 2020

CaseChat Overview and Summary

The case of R v Geldard involved an application by a Probation Officer to cancel a sentence of 12 months’ home detention imposed on Nadine Geldard. Ms Geldard consented to the application, and the Crown indicated it would not oppose it. The legal issue before the court was whether the sentence of home detention could be cancelled and replaced with a sentence of intensive supervision due to Ms Geldard’s ongoing health issues. The court found that intensive supervision was appropriate given Ms Geldard’s medical condition and her need for ongoing medical treatment and rehabilitation.

The court considered that the sentence of home detention was no longer suitable for Ms Geldard due to her health complications, particularly the risk of further infections and potential amputations. The court accepted that intensive supervision could have been imposed at the time of sentencing and that it would be less restrictive while still allowing for supervision and support. Ms Geldard had already served seven months of her home detention sentence, satisfying the punitive aspect of her sentence. The court concluded that intensive supervision would allow Ms Geldard to attend medical appointments and receive necessary treatment without the risk of exacerbating her health issues.

Accordingly, the sentence of home detention was cancelled and replaced with a sentence of intensive supervision effective until 13 June 2020. The court also imposed additional special conditions, including requirements for Ms Geldard to attend alcohol and drug counselling, refrain from using alcohol or drugs not prescribed to her, avoid contact with certain individuals, and undergo assessments and treatment as directed by a Probation Officer.

Orders