R v Hopper

[2012] NZHC 256

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-003665 [2012] NZHC 256

THE QUEEN

v

KERETI EDEN-DEHL HOPPER

Hearing:         23 February 2012

Counsel:         R B Annandale for Crown

J Bell for Prisoner

Judgment:      23 February 2012

(ORAL) JUDGMENT OF WOOLFORD J

Solicitors:

Crown Solicitor, Hamilton;  [email protected]

Counsel:

Public Defence Service, 32 Clarence Street, Hamilton.

R V HOPPER HC HAM CRI-2011-019-003665 [23 February 2012]

Introduction

[1]      The  Department  of  Corrections  applies  to  cancel  the  sentence  of  home detention imposed on Mr Hopper by Keane J on 3 November 2011.

[2]      The ground relied upon is the finding of one gram of cannabis and a bong at the home detention address when the police executed a search warrant there on 4

February 2012.  This was a breach of one of the conditions of home detention which required Mr Hopper not to possess or consume alcohol or illicit drugs.

[3]      The  Department  of  Corrections  submits  that  Mr  Hopper  should  be  re- sentenced on the original charges to a term of imprisonment.

Sentence of Keane J

[4]      On  3  November  2011,  Mr  Hopper  was  sentenced  to  12  months  home detention on seven charges:

(a)       Possession of a 12 gauge pump action shotgun on 6 February 2011; (b)           Possession of a sawn off shotgun on 8 February 2011;

(c)       Possession of seven shotgun shells on 8 February 2011;

(d)      Possession of cannabis for the purpose of sale or supply on 8 February

2011;

(e)       Possession of cannabis for his own use on 8 February 2011; (f)           Possession of a bong on 8 February 2011; and

(g)      Receiving a laptop computer, also on 8 February 2011.

[5]      The lead offence was the possession of cannabis for sale or supply.   The police found 18 grams of cannabis in his car and 423 grams of cannabis in a storage unit leased by him. They also found $29,480 cash and two tick lists.

[6]      Keane J noted that Mr Hopper had only one previous conviction for a minor offence in respect of which he had been convicted and ordered to come up for sentence  if  called  upon.    He  also  noted  that  Mr Hopper  had  suffered  a severe depressive episode and never had the benefit of any structured assistance or family support.   He thought Mr Hopper’s offending could, in part, be explained by his depression.

[7]      Keane J was also impressed with the support of Mr Hopper’s family and thought that the opportunity to live with his sister and hopefully to reconnect with his family was a much more positive way to wean him away from offending rather than imprisoning him.

[8]      In the end, instead of sentencing Mr Hopper to a sentence of two years imprisonment, which would otherwise have been appropriate, Keane J sentenced him to 12 months home detention at his sister’s address.

Discussion

[9]      I agree with the views expressed by Keane J when he stated in the case of R v

Piper,[1] cited to me by the Crown:

[31]     The intent of a sentence of home detention is to rehabilitate and to reintegrate. The purposes that the sentence of imprisonment that would be imposed otherwise serves, to denounce and to deter, take second place. It is a sentence that must then be strictly complied with. Otherwise it will not begin to serve its purpose. Any breach must be viewed seriously.

[1] R v Piper (High Court, Auckland, CRI-2007-004-798, 22 February 2008, Keane J).

[10]     I do view the breach seriously, but in all the circumstances, I do not think that cancellation of the sentence of home detention is warranted at this stage for the

following reasons:

(a)      Mr Hopper has already served three months of the 12 month sentence without incident;

(b)The offence with which Mr Hopper is now charged relates to the personal consumption of cannabis and not to its sale or supply.  I am advised that the police found inconclusive evidence of any sale or supply when the search warrant was executed;

(c)      There is no evidence that Mr Hopper is, once again, associating with gang members in Hamilton.   The pre-sentence report writer thought home detention rather than imprisonment should be imposed so that Mr Hopper could disassociate himself from gang influences;

(d)The offences relate to one incident only unlike the case of  Piper where there were a number of different types of breaches on different days, which demonstrated a continued refusal to abide by home detention conditions;

(e)      Mr Hopper has only recently commenced the drug and alcohol counselling or programme that forms part of the sentence.  One of the conditions of Mr Hopper’s sentence is that he was to undertake an alcohol and drug assessment at the Cambridge Community Network Trust at 193 Shakespeare Street, Cambridge, and if suitable attend and complete ongoing counselling to the satisfaction of the supervising probation officer and treatment provider.  Mr Hopper has not yet had the full benefit of the rehabilitative aspect of his home detention sentence.  I am advised today by his counsel that he has attended just two sessions of counselling; and

(f)      The other facts that Keane J thought favoured home detention, such as Mr Hopper’s age, health and family situation, remain important and support the continuation of the home detention sentence.

[11]     I, therefore, decline the application and make no changes to the existing conditions  but  Mr  Hopper  should  be  aware  that  any  further  breaches  of  the conditions of his home detention sentence may not be viewed in the same light.  He must realise that imprisonment is a real option if there are any further breaches.  The home detention sentence is a chance to turn his life around.  He needs to grab that chance.

[12]     Finally, I thank all the family in Court today for their continued support of

Mr Hopper.  Please do everything possible to make sure he stays out of prison.

……………………………….

Woolford J