Rivers v Department of Corrections HC Dunedin CRI 2011-412-44
[2011] NZHC 1916
•25 November 2011
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2011-412-44
CRI 2011-412-45
REBECCA RICHALEEN MARTHA RIVERS
Appellant
v
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 25 November 2011
Appearances: S A Saunderson-Warner for the Appellant
M J Grills for the Respondent
Judgment: 25 November 2011
ORAL JUDGMENT OF WHITE J
Solicitors: Aspinall Joel, Dunedin: [email protected]
Crown Solicitors, Dunedin: [email protected]
RIVERS V DEPT OF CORRECTIONS HC DUN CRI 2011-412-44 25 November 2011
[1] Ms Rivers appeals against her sentence of nine weeks’ imprisonment imposed in the District Court at Dunedin on 10 November 2011 on the following three charges:
Offence Section/Act Maximum Penalty
Driving with excess breath alcohol (level: 923)
S 56(1) Land Transport Act
1998
Three months imprisonment or a fine no exceeding $4500 and six months or more
disqualification
Breach of intensive
supervision
S 70(a) Sentencing Act 2002 Six months imprisonment or
a fine not exceeding $1500
Breach of community work S 71(1)(a) Sentencing Act
2002
Three months imprisonment or a fine not exceeding
$1000
[2] Ms Rivers had previously been sentenced on the excess breath alcohol charge in the District Court at Dunedin on 7 June 2011 to a sentence of 200 hours community work and intensive supervision. As she had failed to comply with the conditions of her intensive supervision sentence, the sentence of community work and intensive supervision was cancelled and she appeared for re-sentencing on the excess breath alcohol charge on 10 November 2011.
[3] After referring to this background and the submissions on behalf of
Ms Rivers, District Court Judge S J Coyle said in his Sentencing Notes:
[10] To your credit, you have completed half of the sentence of community work. Thus, you have completed in part the punitive aspect of the sentence that I imposed back in June. However, you certainly have not completed the rehabilitative aspects.
...
[15] On the drink driving matter and looking at the culpability of your offending, I fix a starting point of six weeks’ imprisonment. It is uplifted by one week for your previous conviction, arriving at a provisional sentence of seven weeks’ imprisonment. You are entitled to a full credit of 25 percent for your guilty plea, arriving at an end sentence of five weeks’ imprisonment.
[16] In relation to the breaches of intensive supervision and breaches of community work, assessing your culpability, I fix a starting point of six weeks’ imprisonment. There are no aggravating features in my view. You are
again entitled to a credit for your guilty plea of two weeks, arriving at an end sentence of four weeks’ imprisonment. That offending is quite distinct and different and occurred subsequent to the previous offending. It is different in kind and it does not in my view offend against the totality principle to impose a cumulative term of imprisonment.
[17] Thus, the sentence of four weeks’ imprisonment in relation to the probation matters is cumulative on your sentence of five weeks for the driving matter. In total you are therefore sentenced to nine weeks’ imprisonment. The community work had already been cancelled.
[4] Ms Rivers appeals on the ground that, while the District Court Judge referred to the completion of half of the sentence of community work (in fact some 80 hours), he did not give her any credit for it, at least expressly, as required by s 54K(5) of the Sentencing Act 2002.
[5] For Ms Rivers, Ms Saunderson-Warner submitted that:
(a) At least two weeks credit should have been given for this. The appropriate sentence for the resentencing on the charge of driving with excess breath alcohol would be a starting point of six weeks imprisonment, no uplift for aggravating factors, a discount of two weeks for the portion of the sentence already completed and a twenty five percent credit for guilty plea resulting in a sentence of three weeks imprisonment.
(b)The sentencing process had miscarried and, accordingly, the sentence on driving with excess breath alcohol should be reduced.
[6] For the Crown, Mrs Grills accepted that, while the Court, at paragraph [10] of the Court’s decision, acknowledged the appellant was entitled to credit for having completed half of the sentence of community work, no specific credit was referred to when setting the term of imprisonment. But Mrs Grills also submitted that, given the view the Court took of the importance of the intensive supervision sentence as a component of the sentencing, the portion of community work served would not justify a credit of two weeks as sought on behalf of the appellant. The sentence of five weeks imprisonment imposed on re-sentencing was not out of proportion to the original sentence imposed. In all the circumstances there had been no miscarriage in
the sentencing process and the sentence of five weeks’ imprisonment imposed at re- sentence was appropriate.
[7] Under s 54K(5) of the Sentencing Act 2002:
When determining a substitute sentence under subsection (3)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
[8] As the Crown accepted, the District Court Judge does not appear to have complied with this provision because no specific credit has been given for the 80 hours of the community work sentence completed by Ms Rivers.
[9] I therefore accept the submission for Ms Rivers that credit should be given and that on re-sentencing for the excess breath alcohol charge there should have been a sentence of four weeks’ imprisonment.
[10] The appeal is therefore allowed and under s 121(3)(b) of the Summary Proceedings Act 1957 the sentence of five weeks’ imprisonment on the excess breath alcohol charge is quashed and a sentence of four weeks substituted. In all other respects the District Court Judge’s decision is confirmed so that an end sentence of
eight weeks’ imprisonment is imposed.
D J White J
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