R v Knauf HC Auckland CRI 2009-090-7494

[2009] NZHC 2619

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-7494

QUEEN

v

QUENTIN KNAUF

Hearing:         27 October 2009

Counsel:         J Cagney for Applicant

R Reed for Respondent

Judgment:      27 October 2009

JUDGMENT OF ASHER J

Solicitors:

JL Cagney, Barrister, PO Box 576, Kumeu 0841

Meredith Connell, Crown Solicitor, PO Box 2213, Auckland

R V QUENTIN KNAUF HC AK CRI-2009-090-7494  27 October 2009

[1]     Haami Anderson, a probation officer, applies to cancel the sentence of community detention imposed on Quentin Charles Knauf on 8 September 2009.  The sentence was imposed for a period of five months and expires on 7 February 2010. The curfew address was in Te Atatu.

[2]      On 16 October 2009 the probation officer sent a warning letter to Mr Knauf relating to non-compliance with curfew hours on 15 October 2009.  On that occasion he was 11 minutes overdue on his return from curfew.   On 22 October 2009 there was a report indicating tampering with the monitoring equipment.  Further, on that date the curfew record shows that Mr Knauf was two minutes late in meeting his curfew obligation.

[3]      The probation officer’s affidavit also records that Mr Knauf can no longer stay at the Te Atatu address.   The landlord of the property considers that his attendance there on occasions with his two children is a breach of the tenancy agreement.

[4]      In  the  circumstances,  Probation  seeks  a  cancellation  of  the  community detention order and a substituted sentence of community work.   Mr Cagney, who appears for Mr Knauf, advises that a new address has been arranged, and seeks a change of the curfew address.  That address is 42A Starforth Road, Henderson.  The occupant  is  Mr Paul Meyrick.    Ms Reid,  who  appears  for  the  Crown,  has  been advised by Probation that the address and occupant are suitable.   I am grateful to Probation for making the effort to check these matters at short notice.

[5]      The basic position of Probation has been that the sentence of community detention should be cancelled.  However, Mr Cagney has explained that the alleged tampering with the monitoring equipment was in fact an occasion where the functioning  of  the  equipment  must  have  been  affected  by Mr Knauf’s  furniture moving activities at the time.   He states that there was no deliberate tampering. Certainly  Probation  has  not  suggested  that  there  is  evidence  (apart  from  the electronic report) that the bracelet or monitoring equipment have been interfered with.

[6]      In the circumstances, I view the breach as being confined to the two breaches of  curfew.     Although  Mr Knauf  needs  to  appreciate  that  he  must  under  no circumstances  do  anything  which  may  interfere  with  the  functioning  of  the equipment, I am prepared to deal with this matter by varying the curfew address rather than cancelling the sentence of community detention.

[7]      The probation officer’s concern relating to Mr Knauf’s observance of his obligations has a proper basis, and I formally give Mr Knauf a last warning.  Subject to the discretion of the Judge who hears any further matter, any breach of curfew or other breach of the terms of community detention is likely to lead to the sentence being cancelled and a new sentence being imposed.  Amongst the options that will arise in such a situation will be imposing a period of imprisonment.

[8]      The  order  I  make  is  that  the  curfew  address  is  varied  and  is  now

42A Starforth Road, Henderson.

[9]      For the avoidance of doubt I make it clear that the varied curfew address applies from today as that will be the address that Mr Knauf goes to at 8:00 pm tonight.

………………………….

Asher J