Van Helmond v Community Probation Service

[2013] NZHC 990

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-054-2380 [2013] NZHC 990

HENRICUS GERADUS VAN HELMOND

Applicant

v

COMMUNITY PROBATION SERVICE

Respondent

Counsel:         H G Van Helmond in person

B D Vanderkolk for Respondent

Judgment:      7 May 2013

REVIEW OF SENTENCE OF WILLIAMS J

[1]      Mr Van Helmond applied on 13 February 2013, to review his sentence of 200 hours community work imposed in respect of one charge of blackmail and following a sentence indication.  He is both physically unwell and aggrieved at his treatment by the court.   His co-mingling of these two very different issues has made this application more difficult to address than it needed to be.

[2]      As I record in my minute of 9 April 2013, when the application came before me at Palmerston North, Mr Van Helmond put to the court a lengthy letter of complaint making it clear that he was unhappy with his lawyer’s advice and my sentencing  remarks,  regretted  having  pleaded  guilty and  now  wished  to  appeal. When I addressed him face to face however, he focused not on his complaints of

unfairness but on his ability to carry out the sentence.   He made it clear that he

HENRICUS GERADUS VAN HELMOND V COMMUNITY PROBATION SERVICE HC PMN CRI-2012-

054-2380 [7 May 2013]

would accept a sentence of community detention if offered and make no further complaint.

[3]      I adjourned the matter at that point inviting Mr Van Helmond to withdraw his rather intemperate letter so that I could review his sentence without feeling that the remedy he really sought was to revisit his guilty plea.

[4]      I also invited Mr Vanderkolk to provide background from the Community Probation Service (CPS) in relation to Mr Van Helmond’s physical ability to carry out the original sentence imposed.

[5]      Mr Vanderkolk provided his memorandum on 15 April 2013.   It was made clear by CPS that due to the health difficulties Mr Van Helmond suffers, he is now unable to carry out his sentence.  Mr Vanderkolk invited me to review the sentence and to substitute a new sentence of community work.

[6]      Yesterday, Mr Van Helmond filed a new letter.   It is, once again, largely a letter of complaint, saying very little about his physical frailties.   He complained about his lawyer, he complained about me, alleging that I called him a “cyber-bully” (I did not), he complained about others cyber-bullying him and pointed out that he now had suicidal ideation. We were, as they say, back to square one.

[7]      Having reflected carefully on this matter, it seems to me the only matter for me to resolve today is whether the sentence imposed has so lost its efficacy that a different sentence should now be substituted.  The answer to that question is clearly yes.  Mr Van Helmond is obviously too unwell to complete a sentence of community work.  Whether Mr Van Helmond wishes to revisit his guilty plea or the underlying basis for sentencing is ultimately a matter for him.  Clearly however, remorse will not  mitigate  sentence  in  this  case.    What  is  important  in  the  context  of  this application is to keep the question of Mr Van Helmond’s physical ability to complete the sentence separate from his issue over guilty plea.

[8]      I consider that a sentence of community detention is an appropriate substitute in this case.  It will hold Mr Van Helmond accountable and responsible.  It will also denounce and deter.

[9]      In light of the level of the original sentence of community work, I consider that three months’ community detention is appropriate.

[10]     The sentence of community work is quashed accordingly and substituted with

a sentence of three months’ community detention.  Conditions will be as follows:

(a)       That   the   applicant   be   curfewed   to   the   proposed   address   of

115 Fergusson    Street,   Woodville,    for    the   purpose    of   serving community detention;

(b)      That the applicant be curfewed from 7.00pm to 6.00am from Monday

to Sunday;’

(c)      That the applicant become subject to the above proposed curfew at least three days following a sentence of community detention being imposed;

(d)      That  the  applicant  report  to  Community  Probation  Services  at

404 Church  Street  East,  Palmerston  North,  within  24  hours  of  a sentence of community detention being imposed.

Williams J

Solicitors:

Crown Solicitor, Palmerston North
H G Van Helmond, 115 Fergusson Street, Woodville