Van Den Bogaart v Police HC Auckland CRI 2010-404-250

[2010] NZHC 1794

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-250

GERADUS VAN DEN BOGAART

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 September 2010

Appearances: R Mansfield for the Appellant

Z Johnston for the Respondent

Judgment:      21 September 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 21 September 2010 at 5 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       RM Mansfield, PO Box 2674, Auckland 1140

VAN DEN BOGAART V  POLICE HC AK CRI-2010-404-250  21 September 2010

[1]      On  25  May  2010  Mr  Van  Den  Bogaart  was  sentenced  (inter  alia)  to

12 months imprisonment for various offences under the Animal Welfare Act 1999 and the Animal Products Act 1991. The charges essentially relate to the manner in which he operated a substantial poultry and egg business in the South Auckland region.

[2]      Mr Van Den Bogaart appealed against the sentence of imprisonment (but not against other of the orders made by the learned District Court Judge).  Although he served some 77 days in prison his mental health deteriorated significantly while he was  in  custody.     As  a  result  of  a  clinical  psychologist’s  report  identifying Mr Van Den  Bogaart  as  being  at  high  risk  of  self-harm  should  he  remain incarcerated, he was granted bail subject to a 24 hour curfew on 10 August 2010, pending  the  hearing  of  this  appeal.     It  is  relevant  to  note  that  during  the approximately one and a half months he has subsequently spent on bail there have been no incidents of concern or instances of non-compliance.

[3]      At the time bail was  granted Venning J noted that it appeared from the sentencing notes in the District Court that the learned District Court Judge would have    considered    home    detention    but    felt    unable    to    do    so    due    to Mr Van Den Bogaart’s refusal to engage in the assessment process.  Mr Mansfield advised  the  Court  on  that  day that  Mr Van  Den  Bogaart  was  nonetheless  very interested in pursuing that as an option and accordingly Venning J ordered a home detention report be prepared.

[4]      That report, dated 26 August 2010, supported a substituted sentence of home detention although recommended further psychological and psychiatric reports be prepared in order fully to assess Mr Van Den Bogaart’s suitability for an electronically monitored sentence.  This recommendation was based on a perceived resistance by Mr Van Den Bogaart to the restrictions on his movement that would necessarily form part of such a sentence.  As I have noted, however, he has since

10 August been subject to quite restrictive bail conditions and no difficulties in that regard have emerged.   I record that he has been assessed as being at low risk of reoffending.

[5]      Since  the  report  of  26  August  Mr  Van  Den  Bogaart  has  been  having counselling sessions with a psychologist, Mr Grover, and I was provided with a copy of a positive progress report from him.   Mr Mansfield advised that Mr Van Den Bogaart has also been seeing a psychiatrist and is currently receiving medication, also with positive results.

[6]      The basis for Mr Van Den Bogaart’s present appeal is not, accordingly, that the District Court erred in fact or in law in imposing the 12 month term of imprisonment.  Indeed Mr Mansfield specifically did not take issue with any aspect of Judge McAuslan’s reasoning, the starting point adopted nor the level of discounts applied.  Rather, as Ms Johnston pointed out, the appeal was properly to be regarded as  being  advanced  in  the  terms  contemplated  by  s 121(3)  of  the  Summary Proceedings Act, namely that “substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.  In her very helpful and fair submissions Ms Johnston also referred me to other cases where a sentence of imprisonment has not been regarded as appropriate due to the serious risk it posed to the health and safety of the offender, for example

R v P.[1]

[1] R v P (1993) 10 CRNZ 250.

[7]      Although Judge McAuslan was generally aware of some of Mr Van Den Bogaart’s psychological problems (and indeed quite appropriately took them into account in discounting the final sentence she imposed for the circumstances personal to him) she was not, and could not have been, aware of either the suitability of home detention or the extremely deleterious effect that incarceration would have upon him. Nor could she have taken into account the steps that have subsequently been taken, with the assistance of a psychologist and a psychiatrist while on bail, to address his problems.

[8]      On the basis of the reports now before me I am satisfied that a sentence of home detention would be appropriate in the changed (or possibly clarified) circumstances of Mr Van Den Bogaart’s somewhat unusual case.

[9]      An application of the usual principles would result in the conversion of the sentence of 12 months imprisonment to one of six months home detention.  That six month period should, however, be reduced further to take account of the 77 days spent by Mr Van Den Bogaart in prison and in limited recognition of the time he has spent on restrictive bail.  Again Ms Johnston accepted helpfully that a reduction in term was open to me in these respects.

[10]   Accordingly, and in formal terms I quash the sentence of 12 months imprisonment and impose a sentence of three months home detention which is to commence on Thursday 23 September 2010.  On that date Mr Van Den Bogaart is to await the arrival of a probation officer and security officer at his bail address of

211 Opaheke Road, Papakura, which is also to be his home detention address for the duration of the sentence.   The sentence of home detention is also subject to the following further conditions:

a)       Mr Van Den Bogaart is not to possess or consume alcohol and/or illicit drugs for the duration of the sentence of home detention;

b)He   is   to   attend   and   complete   any   other   programmes   and/or counselling as directed by the probation officer; and

c)       He is not to engage or continue to engage in any employment or occupation in which the probation officer has directed him not to engage in or continue.

[11]     Standard post-detention conditions are to apply for a period of six months.

Rebecca Ellis J