Rogers v Department of Corrections HC Whangarei CRI-2011-488-000023

[2011] NZHC 480

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-488-000023

KIM ROGERS

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         12 May 2011

Appearances: Mr K Johnson for Appellant

Ms K R Thomas for Respondent

Judgment:      12 May 2011

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ROGERS V DEPARTMENT OF CORRECTIONS HC WHA CRI-2011-488-000023 12 May 2011

[1]      Ms Rogers pleaded guilty in the District Court to one charge of breaching the conditions of her community work, and two charges of breaching the conditions of her supervision.  Each of those charges carried a maximum sentence of three months imprisonment.

[2]      On 10 March 2011, His Honour Judge McDonald sentenced Ms Rogers to cumulative sentences of two months imprisonment on each of the charges.  She was therefore required to serve a total end sentence of six months imprisonment.

[3]      Ms Rogers now appeals to this Court against the sentences that the Judge imposed on the basis that, taken together, the end sentence is manifestly excessive. She contends that the Judge failed to have proper regard to totality principles, and that a lesser sentence ought to have been imposed.  She has now served more than two months of her sentence.   For that reason, her counsel submits that she should effectively receive a sentence equivalent to time served.

The facts

[4]      It is clear from reading the Judge’s sentencing notes that he was extremely concerned by the attitude that Ms Rogers has shown to her obligations in the past. She has several previous convictions for breaching the conditions of her community work.  The first of these occurred on 22 March 2010, when she was sentenced to 60 hours community work for breaching the existing conditions of the sentence of community work.  She was at that time serving a sentence of 250 hours community work on a number of driving charges.

[5]      Then, on 11 November 2010, she received a further sentence of 250 hours community work for breaching the sentence of community work.   Her criminal history records that at this time she was advised by the Judge at this time that a harsher penalty was likely to be imposed should she appear again.

[6]      The offending for which Ms Rogers appeared for sentence on 10 March 2011 arose out of three separate incidents, each of which is the subject of a summary of facts.  The earliest in time occurred on 29 November 2010, when she failed, without

reasonable excuse, to report to a probation officer as required.  She had earlier been sent a final warning letter due to her earlier non-compliance with the sentence of community work.

[7]      Then, on 17 December 2010, Ms Rogers breached a condition of her sentence by failing to attend a programme as directed to do so by a probation officer.  This was her second failure to attend the programme.  Finally, on 21 December 2010 she breached a condition of her sentence in that she failed without reasonable excuse to report as directed to her probation officer.  Again, she had earlier been sent a final warning letter for failing to report as directed.

[8]      The situation, therefore, is that as at 21 December 2010, Ms Rogers had performed virtually none of her sentences of community work.  The only occasion in which she had had contact with her probation officer was when the probation officer visited her home address for a short time on 15 November 2010.

Decision

[9]      Ms Rogers’ previous history, together with the facts giving rise to the present offences, makes it clear that Ms Rogers has little interest or motivation in completing sentences of community work and supervision.  She has put forward reasons for this such as an inability to obtain a babysitter, and problems that she has encountered with her whanau.   The fact remains, however, that Ms Rogers takes no steps whatsoever to contact the Probation Service regarding her failure to meet her obligations, and she blatantly disregards all orders that the courts make.  That being the case, it is not surprising that the Judge considered that a stern sentence was required.    That  is  particularly  the  case  given  the  warning  that  the  Judge  who sentenced Ms Rogers on 11 November 2010 gave her at that time.

[10]     Given the fact that the maximum sentence for each charge was one of three months imprisonment the sentences are certainly stern, particularly in light of the guilty pleas that Ms Rogers’ presented.  I perceive, however, that the Judge viewed Ms Rogers as a recidivist offender, and he cannot be blamed for that.  He was also concerned about wider issues of deterrence, because he made several comments in

his sentencing remarks about the effect of this type of offending in the Northland area.

[11]     The Judge did not refer expressly to totality principles, but in the end result I do  not  think  that  the  sentence  that  he  imposed  could  be  said  to  be manifestly excessive.  It does not really matter how the sentence was ultimately structured.  The Judge could well have selected a sentence of one month’s imprisonment on the earliest charge and two months imprisonment on the second charge.  He would then have been justified in imposing the maximum of three months imprisonment on the final charge.   That would produce the same end sentence as that which the Judge selected by another route.  The level of discount to be applied in respect of the guilty pleas could not realistically have been great, either, given the fact that Ms Rogers had no defence, as I perceive anyway, to the charges that she faced.

[12]     Although the sentences can properly be described as being at the upper end of the available range, Ms Rogers’ previous history is such that I cannot say that they were manifestly excessive having regard to totality principles.  For those reasons, the

appeal is dismissed.

Lang J

Solicitors:

Crown Solicitor, Whangarei

Mr K Johnson, Kamo