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 licence disqualification); Careless driving, s 37(1) of the Land Transport Act 1998, s 37(1) (maximum penalty $3,000 fine).

4      Possession of an offensive weapon, s 202A(4)(a) of the Crimes Act 1961 (maximum penalty three years’ imprisonment); Burgles (other property) (over $5,000) by night, s 231(1)(a) of the Crimes Act (maximum penalty 10 years’ imprisonment).

5      Scully v New Zealand Police, above n 1, at [15].

6 At [15].

7      Oltaches v Police [2021] NZHC 908; and McNoe v R [2023] NZHC 2801.

[7]                 Upon my review of the parties’ submissions and the authorities, I issued a minute proposing to deal with the appeal on the papers unless the parties wished to be heard orally.8 The parties filed a joint memorandum dated 12 September 2024 agreeing that the appeal should be allowed on the basis set out in the respondent’s submissions and indicating they did not wish to be heard orally.

Assessment

[8]                 Having reviewed the authorities, I accept the respondent’s submission that the most the Judge can do is indicate whether or not a particular type of address or residence is likely to be viewed favourably if an application for home detention is made, but cannot give conditional leave to apply for home detention.

[9]                 The issue turns on the interpretation of s 80I of the Sentencing Act, which provides:

80I      Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[10]Once the requirements of s 80I(1) are met, the Court is obliged to grant leave.

The provision is directory not discretionary.9

[11]             In Oltaches v New Zealand Police, the sentencing Judge imposed a sentence of imprisonment with leave to apply for home detention under s 80I, and in doing so, stated “the only way that that will happen is if you apply to be released into a

8      Scully v Police CRI-2024-441-22 (Minute of La Hood J, 12 September 2024).

9      McNoe v R, above n 7, at [25].

residential drug and alcohol programme.”10 Mr Oltaches appealed on the basis that he ought to have been sentenced to home detention to the address he had proposed.11 Venning J dismissed the appeal on the basis that the proposed address was unsuitable.12 In the course of interpreting s 80I, Venning J held:

[20]      The only qualification the section contemplates is that the proposed residence must be “suitable”. The further qualification the Judge sought to impose as a condition, namely that home detention would only be granted to a residential drug and alcohol programme, however well intentioned, does not appear to be permitted by the legislation.

[21]      It seems to me that it may be a matter of how the point is expressed. I note that in the case of Sands v New Zealand Police this Court granted leave to apply for home detention should a properly supervised position become available. Rather than fixing it as a condition as the District Court Judge sought to do in this case, the Judge could have indicated, when granting leave to apply for home detention, that a suitable residential programme would be looked at favourably, but I do not consider she was entitled to make it an express condition of a grant of leave. Of course, any proposed address that did not enable Mr Oltaches’ specific needs to have been addressed would not be likely to be assessed as suitable.

[12]             In McNoe v R, Harland J applied Oltaches and held that conditional leave to apply for home detention, only for the purpose of entering a residential rehabilitation facility after six months of serving a sentence of imprisonment, was ultra vires.13 The Judge observed:

[27] It makes sense for there to be no discretion for judges to impose conditions in respect of an application to convert a sentence to one of home detention as s 80I applies only if, at the time of sentencing, the court would have sentenced the offender to home detention if a suitable residence was available. This is because the appropriate sentence in this situation has been determined to be a sentence of home detention subject to a suitable address being available at sentencing. In such a case, there would [be] no scope for the judge to sentence an offender to a period of imprisonment followed by a period of home detention, and therefore it would be incongruous if a judge could achieve that outcome by attaching a condition that a period of imprisonment should be served before an application to convert the sentence to home detention could be made.

(Footnote omitted)

10     Oltaches v Police, above n 7, at [1].

11 At [2].

12     At [22]–[23].

13     McNoe v R, above n 7.

[13]             Accordingly, I considered that the appeal ought to be allowed on the basis that the condition imposed on the grant of leave to apply for home detention was ultra vires. Of course, a residential drug and alcohol rehabilitation programme is likely to be viewed favourably by the Court over alternatives, but leave to apply is not conditional on that being a feature of an application for home detention.

[14]             Given this finding and the appellant’s acceptance that the appeal should be allowed on the basis set out in the respondent’s submissions, it is unnecessary to deal with the issues raised regarding the parity principle and s 8(e) of the Sentencing Act.

[15]             For these reasons, I allowed the appeal and quashed the order that the grant of leave to apply for home detention is conditional upon the proposed address being a residential drug and alcohol rehabilitation facility.

La Hood J

Solicitors:

Leo Lafferty, Napier for Appellant Crown Solicitor, Napier for Respondent