Robinson v Police HC Dunedin CRI-2011-412-000029

[2011] NZHC 1164

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-412-000029

TONY JAMES ROBINSON

v

POLICE

Hearing:         29 September 2011

Appearances: F Ross for Appellant

R Smith for Crown

Judgment:      29 September 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Mr Robinson was brought before the District Court on an application to cancel a sentence of community work.

[2]      The Judge granted the application, and substituted a sentence of five months’ community detention, with a curfew between 7 p.m. and 7 a.m. Friday to Monday. Mr Robinson now appeals the sentence.

Factual background

[3]      The factual background of this case is rather unusual.   The history is as follows.

ROBINSON V POLICE HC DUN CRI-2011-412-000029 29 September 2011

[4]      Mr Robinson was originally sentenced to 150 hours’ community work on 24

March 2011 for driving while disqualified (third or subsequent) and for making a false statement.

[5]      In addition to the community work sentence, he was sentenced to intensive supervision.

[6]      On 9 April 2011, as instructed, Mr Robinson duly reported for induction into his community work sentence.  He advised the probation service he was on ACC but thought he could complete the hours at a community placement as he had previously done so.

[7]      He was excused reporting until 13 April, and requested to provide his most recent ACC medical certificate.   He duly did so, the certificate indicating he was unable to resume any duties at work from 25 January for 90 days.  A further medical certificate dated 18 April was provided, this time indicating Mr Robinson was unable to resume any duties at work from 18 April for 90 days.

[8]      The ACC medical certificates relate to injuries Mr Robinson sustained as the result of a serious workplace accident in early February 2010.  While removing iron from a roof, he accidentally hit some powerlines and was electrocuted.  He suffered serious injuries and is still under specialist care.  He continues to experience pain and remains on ACC.

[9]      Although Mr Robinson was confident he was fit to perform community work, Community Probation did not have suitable work available to safely accommodate his  limitations.    It  formed  the  view  he  was  unable  to  comply  with  all  of  the conditions and requirements of community work, and accordingly filed the application.

[10]     The pre-sentence report told the Judge that Mr Robinson is 24 years of age, with a significant number of previous convictions.

[11]     Regarding  his  health  problems,  the  report  noted  that  in  addition  to  his ongoing physical pain, he also now suffers from a fear of electricity.  Although he was prepared to endure the anxiety that an electronically monitored sentence would generate for him rather than face prison, the report writer’s assessment was that he was unsuitable for an electronically monitored sentence.

[12]     As   regards   the   intensive   supervision,   the   report   writer   noted   that Mr Robinson  was  doing  well,  engaging  with  the  Department  psychologist  and demonstrating good compliance with all conditions.

[13]     The report concluded by noting that Mr Robinson posed no risk to himself or the community and stated that the writer was unable to recommend a community- based sentence.   The view of the Service was that the most appropriate course of action was to cancel the community work sentence and not replace it with any other sentence.

The District Court decision

[14]     The case was called in a busy list, and the sentencing notes are brief.

[15]     In imposing a sentence of community detention, the Judge had this to say:

[2]       You are at grave risk of being sentenced to imprisonment.  Like all too many people, you seem to have a proclivity towards not doing your community work.   You have four prior breaches of that sentence between

2005 and March 2010.  You are also on a sentence of intensive supervision. It seems sensible that continue.  You seem to have some form of disability

that prevents you from doing community work, although you have done

community work previously.

[3]       I think sentencing objectives are met, just, by imposing a sentence of community detention.  You have come within a whisker of being sentenced to imprisonment.

[4]       You are sentenced to five months’ community detention. The curfew starts on Thursday 8 September 2011.  The address is the one referred to in the appendix.  The curfew will be from Fridays to Mondays from 7.00 pm until 7.00 am.

[16]     As the Judge’s comments make clear, his chief concern was to uphold the integrity of the community work sentence.  Understandably, the District Court takes

a strong view that people who fail to comply with community work sentences need to understand that significant consequences will follow.

[17]     On appeal, counsel however agree that it is clear the Judge has overlooked the information contained in the pre-sentence report, in particular Mr Robinson’s phobia about electricity and also importantly the fact that this was not a situation of a wilful breach of community work.  Although Mr Robinson had been dilatory in the past, that was not the case on this occasion.  He in fact was wanting to undertake his community work sentence.  He had proved willing, but it was simply impractical and impossible because of his genuine health situation.

[18]     After hearing from counsel, I have decided that I should consider the matter afresh.

[19]     I am reluctant to cancel the community work sentence altogether, leaving nothing in its place.

[20]     On the other hand, I accept this is a most unusual situation.  I also accept that Mr Robinson’s criminal record does tend to confirm Ms Ross’s submission that since the accident he has changed his ways and realises the importance of being a law- abiding citizen.

[21]     A fine is not a practical solution.  There are outstanding fines.  He is making payments, but the amount outstanding is such that an additional fine would not be appropriate.

[22]     All in all, having regard to counsel’s submissions and the circumstances of this case, I have come to a clear view that the most appropriate course of action is for me to allow the appeal, to quash the sentence of community detention, to confirm the cancellation of the community work sentence and substitute it with an order under s

110 of the Sentencing Act 2002 requiring Mr Robinson to come up for sentence if called on to do so within 12 months.  I order accordingly.

[23]     That means the Court is still imposing a penalty for the original offence.  It also gives Mr Robinson an opportunity to demonstrate that he is indeed a reformed person, as his lawyer has said.

[24]     Finally, I would like to conclude by thanking both counsel for the assistance they have given me today.

Solicitors:

F Ross, Invercargill

Crown Solicitor’s Office, Invercargill