R v R HC Auckland Cri-2008-029-457

[2009] NZHC 2151

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-029-000457

THE QUEEN

v

R

Hearing:         27 November 2009

Appearances: J L S Shaw for the Crown

M E H R   (Applicant) in Person

Judgment:      27 November 2009

(ORAL) JUDGMENT OF DUFFY J [Re Application for Variation of Sentence]

Solicitors:   Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the Crown

Copy To:     M E H R  199 Pouto Road R D 1 Dargaville 0371

R V R HC AK CRI-2008-029-000457  27 November 2009

[1]      Mr R   was sentenced to 10 months’ home detention on 12 August 2009. The sentence was in relation to three offences, being:

i)One count of possession of a class C controlled drug, namely cannabis for supply, pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975;

ii)       one count of cultivating cannabis, pursuant to s 9(2) of the

Misuse of Drugs Act;

iii)      and one count of selling cannabis, pursuant to s 6(1)(e) of the

Misuse of Drugs Act.

[2]      He was sentenced to home detention for 10 months and, in addition, there were post-sentence conditions imposed.

[3]      The reports on Mr R   since the imposition of the sentence show that he has responded exceptionally well to the sentence of home detention.  A report prepared by his probation officer, Carolyn Martin, says that he has been “very compliant and has displayed appropriate behaviour towards his sentence of home detention.  There have been no issues of violations or re-offending”.

[4]      Today, Mr R   seeks to have the sentence of home detention varied due to a change in his personal circumstances.

[5]      At the time the sentence was imposed, Mr R   was living in Maungaturoto. As part of the condition of his sentence of home detention, he attained a job with Kiwi Electrix Limited.   This employment has proved to be very successful and seemingly   has   assisted   in   Mr   R  ’s   rehabilitation.      However,   the   work commitments  will  now  require  him  to  work  some  distance  from  his  home  as Kiwi Electrix Limited expects to be awarded a substantial contract in Ruakaka and work will begin in the New Year.

[6]      It is unrealistic to expect Mr R   to travel from his present address to work in Ruakaka each day.  This has been recognised by the Department of Corrections,

which has supported a change of address from which a sentence of home detention would be served.   A change of address was likely in any event, as Mr R   is presently living in rented accommodation, which is on the market.   Once sold, he will be obliged to find new accommodation.

[7]      However, Mr R   has something else in mind for his accommodation.  It has become possible for him to purchase a vessel on which he could live at anchorage, close to work at Ruakaka.  He has already entered into a conditional contract, having made a deposit on this vessel.  The information he has provided shows the vessel to be a reasonably good purchase and, although it has a value of $130,000, he has been able to purchase it at $70,000.  From the description of the vessel, it looks as if it could be a realistic proposition for living on board.  The difficulty is that a sentence of home detention cannot be adequately monitored when the person subject to the sentence is living on a vessel at anchorage.

[8]      If Mr R  ’s plans to purchase the vessel and thereby become the owner of his own accommodation are to proceed, the sentence of home detention will have to be set aside and a substitute sentence imposed.

[9]      I am very grateful today for the substantial help that I have received from the Crown.   Mr R   is representing himself and, therefore, he has been somewhat constrained in advancing his case, through his lack of knowledge of alternative options under the Sentencing Act 2002.   However, Mr Shaw, for the Crown, has very  helpfully,  whilst  this  matter  was  stood  down,  been  in  contact  with  the Probation Officer,  and  I  understand  now  that  there  is  an  alternative  proposed sentence, which has the approval of the Probation Officer and the Crown and which Mr R   would welcomely serve.   The proposal is for the Court to set aside the sentence of home detention and post-detention conditions, and substitute it with a sentence  of  200  hours’  community  work  and  12  months’  supervision,  with  a condition  of  the  sentence  of  supervision  that  Mr  R    remains  employed  with Kiwi Electrix Limited.

[10]     This seems to me to be a sensible approach which will assist in the continued rehabilitation of Mr R   and enable him to improve his accommodation prospects,

which up until now have been rental accommodation.  He will now be able to move into something that he owns himself.

[11]     Accordingly,  using  the  powers  available  to  me  under  s  80F  of  the

Sentencing Act, I cancel the sentence of home detention, and I substitute in its place

200 hours’ community work and a sentence of 12 months’ supervision, with the condition that Mr R   remain employed with Kiwi Electrix Limited.

[12]     Both substituted sentences are effective from today.

Duffy J