Rippin v The Queen

[2014] NZCA 177

IN THE COURT OF APPEAL OF NEW ZEALAND

     CA94/2014
[2014] NZCA 177

BETWEEN	PATRICK EUAN RIPPIN Appellant
AND	THE QUEEN Respondent

Hearing:	28 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	D W Grove for Appellant M D Downs for Respondent
Judgment:	9 May 2014 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

1. Patrick Euan Rippin was found guilty in the Auckland District Court on one charge of concealing property from the Official Assignee as an undischarged bankrupt.[1]  The amount involved was $277,709.22.  The offending occurred over a two year period.  Judge Claire Ryan sentenced Mr Rippin to five months’ home detention.[2]  Mr Rippin appeals against his sentence on the ground that the sentence is, as a result of his deteriorating mental condition, manifestly excessive.

   [1]R v Rippin DC Auckland CRI-2012-004-5351, 6 November 2013.

   [2]Ministry of Economic Development v Rippin DC Auckland CRI-2012-004-5351, 26 February 2014.

2. Mr Grove, for Mr Rippin, acknowledged that the sentence imposed was a lenient one and that there was no error by the Judge.  The appeal was advanced on the basis that Mr Rippin’s mental condition had deteriorated since sentencing so that the sentence of home detention was no longer appropriate.  Mr Rippin seeks to have the sentence of home detention quashed and one of community detention and community work substituted.

3. Mr Rippin has suffered from depression for some time and there was evidence of that before Judge Ryan at the time of sentencing in the form of an affidavit from Mr Rippin’s doctor, Dr McCartie.  Although the Judge reached a provisional starting point of 18 months’ imprisonment she considered that home detention was the appropriate sentence, largely in recognition of Mr Rippin’s depression and other medical problems.  She rejected community detention and community work (recommended by the Probation Service) not only because they did not carry the necessary deterrent factor, but they would, in any event, be beyond Mr Rippin’s capabilities in light of his health issues.[3]

   [3]At [64]–[65].

4. In fixing the sentence the Judge did, however, go to some lengths to ensure that Mr Rippin would not be constrained in a way that could aggravate his condition. She specifically signalled that there ought to be a degree of flexibility by the Probation Service in terms of approving Mr Rippin’s departure from his home:

   [67]      The provisions of the home detention are as follows:

   …

   (c) You will not be able to undergo any employment or charitable works without the consent of the probation officer but, given your history of involvement in charity and your willingness to continue such work, I ask the probation officer particularly to take into account the need, for your own sake and your mental and physical health, to be able to continue charitable works, if possible, and for you to have approved absences from home detention to be able to do so.  That is, of course, a matter for Corrections but I ask them to be sensitive to that.

   (d) I ask them, also, to take into account your need for medical treatment and medical attention, your need to visit your doctor, the neurology department and any psychiatric services on a regular basis and to approve home leave from that.

   (e)Lastly, I ask Corrections to be compassionate in approving other home release for you as necessary so that you can live a life that is not entirely housebound.

   (Emphasis added.)

5. Mr Grove put before us an affidavit from Dr McCartie updating the Court as to Mr Rippin’s current mental condition.  Dr McCartie deposed to his concern about Mr Rippin’s condition having deteriorated since being placed under home detention and his risk of suicide having significantly increased.  Dr McCartie annexed a copy of a letter from Dr Rhona Sommerville, a community old age psychiatrist, who also referred to the increase in his risk of suicide since being placed on home detention and her belief that he would benefit from a sentence of community service. Mr Grove advised that Mr Rippin was suffering from the inability to leave his house and do simple things such as go to a swimming pool or have coffee out so as to provide some relief from the pressures of home detention.

6. However, the deterioration in Mr Rippin’s condition does not render the sentence imposed by Judge Ryan manifestly excessive.  It is evident from the Judge’s thoughtful approach that the sentence was intended to accommodate changes to Mr Rippin’s condition.  Flexibility in home release arrangements was contemplated and provided for.  Even if it had not been, such an approach is provided for by s 80C(3)(c)(vi) of the Sentencing Act 2002, which allows a probation officer to approve an offender leaving the home detention residence for any specifically approved purpose.

7. The appeal is accordingly dismissed.

Solicitors:
Ellis Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent