R v M HC Palmerston North CRI 2007-054-2084

[2009] NZHC 1634

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2007-054-2084

THE QUEEN

v

M

Hearing:         On the papers

Appearances: E J McCaughan for Crown

F D Steedman for prisoner

Judgment:      7 April 2009 at 3pm

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 3pm on the 7th day of April 2009.

RESERVED JUDGMENT OF MACKENZIE J

[1]      On 4 February 2009, I sentenced Mr M   to home detention for a period of nine months, on one court of methamphetamine for supply.   Application has now been made by the probation officer responsible for Mr M  , pursuant to s 80F of the Sentencing Act 2002, for the cancellation of that sentence and the substitution of a sentence of intensive supervision.

[2]      Mr M   is in a precarious state of health.  I described his situation in my sentencing remarks in these terms:

R V M HC PMN CRI 2007-054-2084  7 April 2009

[3]The task of sentencing you is a difficult one, to which I have given very anxious and careful consideration, because of the state of your health.   The position can only be described as grim.   As the pre- sentence report indicates, your life is currently dominated by your very poor health.  You suffer from end stage renal failure secondary to diabetic nephropathy.   Your additional diagnoses are primarily line sepsis and long term Hypertension, DM Type II, Hypercholesteroaemia and  Asthma.    You  require  11  medications daily and dialysis every second day.  Your medical condition renders you barely mobile and your ability to undergo a prison sentence must be affected by that and indeed your ability to undertake any electronically monitored sentence is restricted by the fact that you cannot wear an anklet due to the swelling of your legs and the leg ulcers.  Your current general practitioner expresses the opinion that you would be too ill with very high medical needs to be able to undertake a sentence of imprisonment unless admitted and kept in hospital while doing your sentence.

[3]      By application dated 24 February 2009, the probation officer responsible for the supervision of Mr M  ’s sentence has made application to cancel the sentence of home detention.  The application is based on the grounds that Mr M   is unable to undertake a sentence of home detention due to his ill health, and that he cannot be electronically  monitored  on  the  sentence  which  makes  the  sentence  of  home detention unmanageable.  The application seeks cancellation and substitution.  The application does not suggest what sentence should be substituted, but in the supporting affidavit the probation officer requests the substitution of a sentence of intensive supervision.

[4]      When this application was received, I issued a minute dated 6 March 2009 requesting memoranda from counsel as to the appropriate procedure for dealing with this application.  In that minute, I expressed a preliminary view in these terms:

[3]It may be of assistance to counsel in preparing those memoranda if I were to indicate a tentative preliminary view on this application. The application seeks cancellation of sentence and substitution of another  sentence,  under  s 80F(4)(d).    That  necessarily  raises  the question of what substituted sentence might be imposed.   In my sentencing remarks I indicated that I had reached the conclusion that the imposition of a sentence of imprisonment would be inhumane. On the information presently before me I remain of that view.  I also expressed the view that a sentence of imprisonment would be impractical.  Despite a request in my minute of 5 November 2008 for a report addressing the ability of the Department of Corrections to provide appropriate care in prison, no specific material to that effect was made available to me at sentencing.  As the application is based on the grounds that Mr M   is unable to take a sentence of home

detention  due  to  his  ill  health  and  that  the  sentence  of  home detention  is  unmanageable  I  am  of  the  view  that,  a  fortiori, Mr M     would   be   unable   to   undertake   a   sentence    of imprisonment.   It does not appear to me that any other sentence would  be  a  realistic  alternative.     Accordingly,  I  am  of  the preliminary view that I will need to consider whether the appropriate course would be to simply cancel the sentence, under s 80F(4)(c).

[5]      Counsel for Mr M   submits that it is appropriate for the Court to deal with this matter either by the cancellation of the existing sentence or by the imposition of a sentence of intensive supervision as suggested in the probation officer’s affidavit. Counsel for the Crown submits that the only appropriate sentences available are home detention or imprisonment.  Counsel refers to the Court of Appeal decision in R v Luce [2007] NZCA 467, in which the Court of Appeal reduced the otherwise appropriate sentence of imprisonment in order to recognise the prisoner’s health concerns. Counsel submits that:

From the Crown’s perspective, the important point is that Luce’s kidney condition was able to be treated in a Prison environment.  Counsel cannot see why a similar approach could not be followed here.

[6]      Counsel also referred to the comments by the Court of Appeal at paragraph [23] of Luce to the effect that compassionate remedies would be available by statute if required.  Counsel for the Crown therefore opposes the cancellation of the home detention sentence where no sentence will be substituted but acknowledges that the Court has jurisdiction to adopt such an approach under s 80F(4)(c) and that the discretion appears to be unfettered.  Counsel indicates that counsel does not wish to be heard further on the matter and is content for the matters to be dealt with on the papers.

[7]      Having given further consideration in the light of these memoranda, I remain of the view which I expressed in my minute of 6 March 2009.  As I noted in that minute, I had indicated prior to sentencing that I would require a report from the Department of Corrections addressing the ability of the department to provide appropriate care.   No such report was obtained.   The probation officer’s affidavit records  that  Mr M    attends  Waikato  Hospital  every Tuesday,  Thursday,  and Saturday for up to six hours a day for dialysis treatment.   Clearly, that treatment could not be provided in the prison environment.   If a sentence of imprisonment

were imposed, I consider that logistical difficulties, at least as great as those involved under the sentence of home detention, would be involved in ensuring that Mr M   receives  the  treatment  which  he  needs.     I  am  accordingly  not  satisfied  that Mr M  ’s condition can be managed in a prison environment.

[8]      In sentencing Mr M  , I rejected imprisonment as an appropriate sentence. There has been nothing placed before me which would cause me to reconsider that view.  Accordingly, I am not prepared to accede to the submission of counsel for the Crown that a sentence of imprisonment should be substituted.   It appears on the information  available  to  me  that  Mr M  ’s  condition  would  require  full  time hospitalisation if he were sentenced to imprisonment.  The situation would be similar to, if not more serious than, that which was considered by the Court of Appeal in R v Riri [2008] NZCA 441. There, an inmate who required 24 hour care could not have these needs met in the prison environment. That was held to justify the substitution of a sentence of home detention. That decision was influential in my sentencing decision here. Home detention has now been found to be unmanageable in this case.

[9]      An  overriding  consideration  in  sentencing  must  be  considerations  of humanity.   I do not consider that it would be humane to impose a sentence in the knowledge that appropriate care cannot be provided in the prison environment.  I do not consider that it would be an appropriate exercise of the judicial function to impose such a sentence, leaving it to others to invoke compassionate grounds.   I consider that the appropriate course is for the judgment on compassionate grounds to be made at this stage.

[10]   The probation officer proposes substitution of a sentence of intensive supervision.  In my sentencing remarks, I considered and rejected the possibility of a sentence of supervision or intensive supervision, on the grounds that those sentences are specific sentences designed to address specific circumstances relating to the reduction of the likelihood of further offending through rehabilitation and reintegration.   That is not the situation here.   The need to cancel the sentence of home detention does not arise from any fault on the part of Mr M  .  A strained approach to a substituted sentence is not justified.  Accordingly I do not consider that it is appropriate to substitute another sentence.

[11]     For these reasons, the application to cancel the sentence of home detention is granted, but the application for substitution of an alternative sentence is declined. There will accordingly be an order under s 80F(4)(c) of the Sentencing Act 2002 cancelling the sentence of home detention.

“A D MacKenzie J”

Solicitors:         Crown Law Office, Palmerston North

F D Steedman for prisoner