R v J HC Invercargill Cri-2008-025-2025

[2009] NZHC 497

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2008-025-002025

REGINA

v

J 

Hearing:         5 May 2009

Appearances: M G Sinclair for Crown

K L McHugh for Prisoner

Judgment:      5 May 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]     J  , on 18 December 2008, you were sentenced  to  five months’  home  detention  in  the  High  Court  on  14  charges  of possession of cannabis plant for supply, and four counts of selling and dealing with cannabis plant.  At that time, you had already spent three or so months in prison.

[2]      In imposing that sentence, the sentencing Judge, Fogarty J, acknowledged that it was a particularly lenient sentence, given that you were at the time of the offending already serving a sentence of home detention.  However, he was prepared to give you an opportunity to put things right.

[3]      The home detention sentence is due to expire on 17 May 2009.

R V J   HC INV CRI-2008-025-002025  5 May 2009

[4]      On  25  April  2009,  an  off-duty  policeman  observed  you  behaving  in  a seemingly suspicious manner on an unoccupied property in McIvor Road, Invercargill.  That led to a charge of burglary and the discovery that you had been using a cellphone to communicate with your girlfriend.  It was a special condition of the sentence of home detention that you were not to possess or use any cellphone for the duration of the home detention sentence.  I note that in his concluding paragraphs Fogarty J stated:

[3]       Kane, I impress on you again that you should be very careful to comply with these conditions. This is your chance to make a new life and not to go to prison and not to enter the criminal fraternity. This is your chance. Your family is still supporting you. That is why I am keeping you out of prison again. I hope that you will merit the trust that your family has in you and that I am showing in you.

[5]      It was also a standard condition of home detention that you must not be absent from the property without the prior approval of your probation officer.

[6]      The events of 25 April led to a charge of burglary, and informations for two charges of breaching the conditions of the home detention sentence (use of cell phone/breach of approved absence).  It also prompted the probation service to apply to  this  Court  for  cancellation  of  the  home  detention  sentence,  and  for  another sentence to be substituted on the grounds that you had failed to comply with the conditions of sentence.

[7]      Today, you have pleaded guilty to the two charges of breaching a condition of home detention.   The third charge of burglary was downgraded to being found without reasonable excuse in a building, and you have pleaded guilty to that charge as amended.

[8]      I am also told that you have spent the last week in custody, bail having been declined.

[9]      There are, therefore, four matters I must deal with this afternoon.

[10]     First is the application to cancel the existing sentence of home detention and substitute it with another sentence.  The other matter is the offence of being found

without reasonable excuse.   Then there are the two charges of breaching home detention conditions.

[11]     In  her  plea  in  mitigation,  Ms  McHugh  told  me  that  you  have  found employment, and that you seem to have managed to get things back on track.  It is therefore particularly unfortunate that these events have occurred.  Ms McHugh also submitted that, while you admit to using a cellphone, you dispute being in possession of the cellphone, which belongs to your mother.  She also submitted the use of the cellphone was limited to communications between yourself and your girlfriend.  Ms McHugh further pointed me to one of those communications, which establishes that you  were  asking  your  girlfriend  to  use  a  landline,  which  would  have  been permissible.

[12]     It is very important for the Court to maintain the integrity of the sentence of home detention.  As Fogarty J said at the time he imposed the sentence, he was being lenient and giving you an opportunity to turn your life around.

[13]     Under the Sentencing Act 2002, when an application is made to cancel a sentence of home detention and substitute it with another sentence, the Court has a residual discretion notwithstanding the fact that the pre-conditions of the exercise of the discretion have been satisfied.

[14]     In this case, I believe the interests of justice and the community would be better served were I not to grant the application, but to maintain the existing sentence of home detention until its expiry date.  That is not in any way whatsoever to be seen as a criticism of the probation service in bringing this application.  I fully understand why they have done so.  It is simply that in the special circumstances of this case, including the fact you have already spent a week in custody, the fact that your sentence is due to expire, and that you have finally obtained employment, I am persuaded not to cancel and substitute with another sentence.

[15]     That leaves me to deal with the three charges.

[16]     Ms McHugh has urged me to deal with them on the basis of imposing another sentence of home detention.  She further submitted that the period should be a short one.

[17]     I have carefully considered those submissions, and am willing to accede to them.

[18]     I have therefore decided that I will sentence you to a further sentence of home detention, for a period of three months on the two charges of breaching a condition of the sentence of home detention.  Those are to be concurrent.

[19]     In addition, you will serve another one-month period of home detention (to commence at the expiry of the three months) in respect of the offence of being found without reasonable excuse.

[20]     In total, there will be four months’ home detention.  The same conditions will apply as currently pertain to the current sentence of home detention.

[21]     The new sentence of home detention will not commence until the expiry date of the existing sentence.   I do not propose to impose any special post-detention conditions, only the standard ones for 12 months, bearing in mind the conditions would have continued anyway from the current sentence.

[22]     I would like to end by thanking counsel for their assistance with this matter.

Solicitors:

Crown Solicitor, Invercargill

McKenzie Gray, Invercargill