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R v Ondra

R v Ondra

Case [2009] NZCA 489 20 October 2009

Appeal

Sentencing

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA468/2009
[2009] NZCA 489
THE QUEEN
v
MAREK ONDRA
Hearing:11 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ
Counsel:M W Ryan for Appellant

M D Downs for Crown

Judgment:20 October 2009 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
B The sentence of imprisonment is quashed with effect from 9 am on 22 October 2009.
CIn substitution therefor, the appellant is sentenced, with effect from 9 am on 22 October 2009, to:
(a)home detention for six months at apartment 7A, 54 Liverpool Street, Auckland Central; and
(b) 100 hours’ community work.

DThe sentence of home detention is subject to a special condition that the appellant surrenders all passports he holds to the Chief Executive of the Department of Labour for the duration of the term of home detention.

REASONS OF THE COURT
(Given by Fogarty J)
[1] On 28 July 2009 Mr Ondra was sentenced to 16 months’ imprisonment after pleading guilty to one charge of cultivating cannabis. His co-offender was sentenced to seven months’ home detention and 200 hours’ community work on the same charge.
[2] Mr Ondra appeals against his sentence. He contends it should have been a sentence of home detention. Home detention had been indicated as a possible sentence at a sentence indication hearing, but the sentencing Judge thought that she could not impose it. Judge Cunningham said in her opening paragraph:
I am going to make it a 16-month imprisonment term in the end which means that you will only serve half, so it will be eight months. You have been mucked around by the system Mr Ondra and I am sorry about that. If I felt that I could properly do my job and give you home detention, I would, but I feel that I cannot, in view of the law.

[3] The reason why she felt she could not sentence the appellant to home detention was that Mr Ondra was, and had been at the time of the offending, in New Zealand unlawfully. She said:
The Court of Appeal has indicated that people who are not allowed to be lawfully in the community should not receive a community-based sentence.

[4] That was an error of law. It appears to have been based on her interpretation of a remark in a judgment of this Court in R v Hassan [2008] NZCA 402, where giving the decision of the Court of Appeal Ronald Young J commented at [34]:
There can be no question of this sentence being served by way of home detention. The appellant is not entitled to be resident in New Zealand and can expect to be deported immediately upon the completion of the sentence.

[5] Bashire Hassan was a Swedish citizen who had pleaded guilty to using a forged document, his birth certificate, and making a false declaration and attempting to pervert the course of justice to the Refugee Status Appeals Authority. Most of the judgment is an analysis of…

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 Ondra

Details

AGLC: R v Ondra [2009] NZCA 489
Case: [2009] NZCA 489
Decision Date: 20 October 2009

CaseChat Overview and Summary

In the case of R v Ondra, the appellant, Marek Ondra, was convicted of cultivating cannabis and sentenced to 16 months' imprisonment by Judge Cunningham of the High Court at Auckland. Ondra appealed against his sentence, contending that it should have been a sentence of home detention rather than imprisonment. The Court of Appeal allowed the appeal and substituted the original sentence with a term of home detention for six months, along with 100 hours of community work. The sentence of home detention was subject to a special condition that Ondra surrender all passports he held to the Chief Executive of the Department of Labour for the duration of the term of home detention.

The legal issues in the case were whether the sentencing judge erred in her interpretation of the law concerning the imposition of home detention sentences on individuals unlawfully in New Zealand and whether the Court of Appeal should substitute the original sentence with a term of home detention. The Court found that the sentencing judge had erred in her interpretation of the law based on a remark in a previous judgment, R v Hassan, and that it was open to the sentencing judge to consider the sentence of home detention that she had considered appropriate.

The Court of Appeal considered the appropriate duration of home detention and community work for Ondra, taking into account the time he had already spent in prison and the need for consistency in sentencing. The Court also considered the possibility that Ondra might attempt to leave the country early, and imposed a special condition requiring him to surrender all passports he holds for the duration of the term of home detention. The start of the substitute sentence was deferred to 9 am on 22 October 2009 to allow time for the proposed home detention residence to be ready, and in the meantime, Ondra was to remain in prison.

Orders