Scully v Police - [2024] NZHC 3147

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-000022

[2024] NZHC 3147

BETWEEN
JASON THOMAS SCULLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: (On the papers)

Counsel:

L P F Lafferty for Appellant A V Bryant for Respondent

Judgment:

17 September 2024

JUDGMENT OF LA HOOD J

(Reasons decision – appeal against sentence)

Sentence appeal regarding conditional leave to apply for home detention

[1] In a results judgment dated 13 September 2024, I allowed Mr Scully’s appeal against sentence.1 These are my reasons.

[2] Mr Scully was sentenced in the District Court on 18 June 2024 to 21 months’ imprisonment with leave to apply for home detention to a residential alcohol and drug rehabilitation facility.2 The appeal relates solely to the conditional nature of the leave granted to apply for home detention under s 80I of the Sentencing Act 2002.

1 Scully v New Zealand Police [2024] NZHC 2654.
2 New Zealand Police v Scully [2024] NZDC 14410 at [15]–[16].

SCULLY v NEW ZEALAND POLICE [2024] NZHC 3147 [17 September 2024]

The District Court decision

[3] Mr Scully was sentenced on four charges, two relating to a driving incident on 17 February 2024,3 and two relating to a burglary of the Taradale RSA on 23 March 2024.4 The Judge took the burglary charge as the lead charge, and sentenced Mr Scully to 21 months’ imprisonment on that charge.5 The Judge convicted and discharged Mr Scully on one charge of careless use of a motor vehicle, and imposed concurrent sentences of three months’ imprisonment on charges of driving while disqualified and possession of an offensive weapon.6

[4] After concluding that the proposed address was unsuitable for the purposes of a home detention sentence (Mr Scully’s mother’s address), the Judge said:

[16] ... However, I would be prepared to grant leave to apply for home detention to a residential rehabilitation alcohol and drug facility only. So in the event that a place at one of those organisations becomes free, to that extent I grant leave to the defendant to apply for home detention.

The parties’ positions on appeal

[5] Mr Scully appealed the sentencing decision on the basis that the Judge erred in restricting any application for home detention to be to a rehabilitation facility. Mr Lafferty, for Mr Scully, initially submitted that the principle of parity and s 8(e) of the Sentencing Act 2002 required consistent treatment with his co-defendant, who was granted unrestricted leave to apply for home detention.

[6] Mr Bryant, for the respondent, conceded that the appeal should be allowed on the basis of authority to the effect that the Court is not permitted to specify a particular address or type of residence as an express condition of an order granting an offender leave to apply for home detention.7

3 Driving whilst disqualified (3rd or subsequent), s 32(1)(a) and subs (4) of the Land Transport Act 1998 (maximum penalty two years’ imprisonment, $6,000 fine and mandatory one year’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scully v Police

Details

AGLC: Scully v Police [2024] NZHC 3147
Case: [2024] NZHC 3147
Decision Date: 17 September 2024

CaseChat Overview and Summary

Jason Thomas Scully appealed against his sentence imposed by the District Court. The appeal focused on the conditional nature of the leave granted to apply for home detention under section 80I of the Sentencing Act 2002. Scully was sentenced to 21 months' imprisonment for burglary, with leave to apply for home detention to a residential alcohol and drug rehabilitation facility. The appeal argued that the Judge erred in restricting any application for home detention to such a facility.

The court considered whether the Judge could impose conditions on the leave to apply for home detention. The relevant statutory provision, section 80I, mandates that if an offender is sentenced to a short-term imprisonment and the court would have sentenced them to home detention if a suitable residence was available, the court must grant leave to apply for cancellation of the imprisonment sentence and substitution of a home detention sentence. This provision is directory, not discretionary. The court reviewed authorities which held that the Judge cannot impose conditions on the leave to apply for home detention, such as specifying a particular address or type of residence. The authorities held that the Judge can only indicate that a suitable residential programme would be viewed favourably, but cannot make it a condition of the grant of leave.

The court accepted the respondent’s submission that the Judge could not impose the condition that leave to apply for home detention is conditional on the proposed address being a rehabilitation facility. The court found that such a condition was ultra vires the statutory provision. The appeal was allowed and the order that the grant of leave to apply for home detention was conditional upon the proposed address being a residential drug and alcohol rehabilitation facility was quashed.

Orders