Watt v Police

[2015] NZHC 2568

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-40 [2015] NZHC 2568

BETWEEN

MELANIE MARIE WATT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015
Appearances:	H Cuthill for Appellant M McClenaghan for Respondent
Judgment:	20 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

WATT v NEW ZEALAND POLICE [2015] NZHC 2568 [20 October 2015]

[1]      Ms Watt pleaded guilty in the District Court to two charges of breaching a sentence of intensive supervision.   The breaches in question related to Ms Watt’s continued association with her former partner when a condition of her intensive supervision  prohibited  her  from  doing  so.    On  12  August  2015,  Judge  Cook sentenced  Ms  Watt  to  four  months  home  detention.1      Ms Watt  appeals  against sentence on the basis that the Judge erred in principle, and that this led to a sentence that was manifestly excessive.

The facts

[2]      The offending was based on summaries of fact with which Ms Watt evidently had no dispute at the time of sentencing.  On 6 May 2015, Ms Watt was sentenced to one year’s intensive supervision after being convicted of breaching a condition of intensive supervision.  She was subsequently issued with a written direction not to associate with her former partner.   On 26 May 2015, Ms Watt was seen to be associating with her former partner contrary to that direction.  This gave rise to the first charge that is now in issue.

[3]      The second charge was laid as a result of an incident that occurred on 9 June

2015.  The summary of facts records that Ms Watt associated again with her former partner on that date as he accompanied her in an ambulance to hospital.  Ms Watt and her mother have now filed affidavits to explain that incident.  These record that on the day in question Ms Watt took an overdose of tramadol.  Her mother discovered her unconscious and called an ambulance.   Ms Watt’s mother was not prepared to travel in  the  ambulance  to  hospital,  because she has  a fear of  ambulances  and hospitals.   Ms Watt’s mother deposes that she therefore called Ms Watt’s former partner and asked him to accompany Ms Watt in the ambulance to the hospital.  Ms Watt says that when she woke up in the ambulance and found her partner there, she immediately asked him to leave.   He complied with that request as soon as the

ambulance arrived at the hospital.

1      Department of Corrections v Watt [2015] NZDC 16166.

The Judge’s decision

[4]      The Judge took a cumulative starting point of three months imprisonment on each of the two charges.   This produced an end starting point of six months imprisonment.  She then added an uplift of one month to reflect previous convictions for similar offending, and applied a discount of 25 per cent to reflect early guilty pleas. This produced an end sentence of six months imprisonment.

[5]      This meant that Ms Watt could not complete a sentence of four and a half months community detention that she was currently serving.   She had served two months of that sentence, leaving a balance outstanding of two and a half months. The Judge equated that sentence to an uplift, or re-sentencing, of two months imprisonment.  This produced an end sentence of eight months imprisonment, which translated to four months home detention.

Decision

[6]      Having regard to the material now before the Court, I am satisfied it was not appropriate to impose any penalty on Ms Watt in respect of the incident that occurred on 9 June 2015.  That offending occurred in circumstances that were clearly outside Ms Watt’s control. I therefore do not consider that a three month cumulative sentence ought to have been imposed on that charge.  Counsel takes no issue, however, with the three month starting point selected in respect of the remaining charge.

[7]      To that starting point needs to be added an uplift of one month to reflect previous convictions.   From the starting point thereby produced  of four months imprisonment, a deduction of one month is needed to reflect early guilty pleas.  This produces a sentence of three months imprisonment.  To that must be added a further two months to reflect the re-sentencing on the cancellation of the existing sentence of community detention.    That produces an end sentence of five months imprisonment.   Converted to home detention, the sentence Ms Watt is currently serving, this equates to a sentence of two months and two weeks.

Result

[8]      The sentences of four months home detention are quashed.  In their place I impose a sentence of two months two weeks home detention on the charge relating to the incident that occurred on 26 May 2015.    Ms Watt is convicted and discharged

on the other charge relating to the incident on 9 June 2015..

Lang J

Solicitors:

Crown Solicitor, Invercargill

John K Fraser Law Ltd, Invercargill