Vernall v The King

[2024] NZHC 991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-37

CRI-2024-404-38 [2024] NZHC 991

BETWEEN

MATTHEW JAMES VERNALL

Appellant

AND

THE KING

Respondent

Hearing:	29 April 2024
Counsel:	M W Ryan for Appellant D Becker for Respondent
Judgment:	30 April 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 30 April 2024 at 11.30 am

Registrar/Deputy Registrar

Solicitors/Counsel:

Mark Ryan (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

VERNALL v R [2024] NZHC 991 [30 April 2024]

Introduction

[1]    Mr Vernall appeals the sentence of 16 months’ imprisonment imposed upon him by Judge J M Jelaš on 19 December 2023.¹ Mr Vernall does not challenge the sentence as being manifestly excessive. His ground of appeal is that the Judge was obliged to grant him leave to apply for home detention.²

[2]    Mr Vernall pleaded guilty to charges of unlawfully using a motor vehicle, unlawful possession of a firearm, breaching a protection order and driving a motor vehicle while his licence was suspended (third or subsequent occasion).

[3]    I do not need to go into factual detail given Mr Vernall’s acceptance that the end sentence of 16 months’ imprisonment was available to the Judge, subject to the appeal ground that leave should have been granted to apply for home detention. I will say that the offending was concerning since Mr Vernall was found driving a stolen motor vehicle to which was affixed number plates stolen from a second vehicle. He had with him in the car a pistol and a magazine containing five live rounds.

[4]    Mr Ryan, for Mr Vernall, submits that Judge Jelaš wrongly refused to adjourn so that a home detention suitability report could be obtained.³ The issue of home detention was before the Judge and her Honour was aware, through an earlier EM bail report, that Mr Vernall’s parents’ address was available and suitable. The Judge did not consider the availability of a rehabilitation centre as an address.

Discussion

[5]    For the appeal to succeed Mr Ryan must show an error on the part of the Judge such that a different sentence should be imposed.

[6]    The insurmountable difficulty for Mr Vernall’s appeal is that the Judge did not refuse home detention on the basis that there was no suitable address available but on

1      R v Vernall [2023] NZDC 28724.

2      The notice of appeal specified the grounds of appeal as being error on the part of the Judge by sentencing Mr Vernall to imprisonment and declining Mr Vernall’s application to adjourn his sentencing hearing. Before me, the ground was refined.

3      Mr Ryan also wanted time to obtain a s 27 report, but that is not of moment in the appeal.

the basis that Mr Vernall’s offending, and his criminal history, meant that imprisonment was the least restrictive option available as a sentence.

[7]    With that conclusion, the Judge could not grant Mr Vernall  leave to subsequently apply for home detention. Section 80I of the Sentencing Act 2002 provides:

(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.

[8]    The section did not apply to Mr Vernall because the Judge did not consider a sentence of home detention to be appropriate.

[9]    Mr Ryan is correct that Judge Jelaš did not consider Mr Vernall’s parents’ address to be suitable. The Judge referenced Mr Vernall’s longstanding drugs dependency “and other anti-social factors”.⁴ The Judge did not consider Mr Vernall’s mother to have the appropriate expertise to support him.

[10]However, the Judge then said:

[17]      In any event, given his poor compliance with his electronically monitored bail, which I infer from the factors before the Court where not only was there alleged offending, but it was stated somewhere there was foiling of his bracelet, that a prison sentence is the proper outcome.

[18]      Finally, as I have determined that imprisonment is the appropriate outcome, some recognition should be given for the time that Mr Vernall spent on electronically monitored bail.

[11]   The Judge’s decision is hardly surprising and was certainly available to her given the circumstances of the offending and Mr Vernall’s criminal history, the latter

4 At [15].

occupying 13 pages. For example, on 11 April 2018 he was sentenced to 10 months’ home detention on 12 charges of violence and dishonesty. On 1 February 2019 he was sentenced to community work on two charges of breaching his home detention conditions. On 3 October 2019 he was convicted on a charge of breaching his community work. He continued to offend prolifically through 2019, including again driving while disqualified (third or subsequent occasion).

[12]   In short, the index offending and Mr Vernall’s record meant that Judge Jelaš was amply justified in concluding that a sentence of imprisonment was the least restrictive outcome available for Mr Vernall.

Decision

[13]   The appeal is dismissed.

Brewer J