Wilkinson v Department of Corrections HC Nelson CRI-2011-442-40

[2011] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-40

ROYLEEN BARABRA JALEEZA WILKINSON

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         25 October 2011 (Heard at Wellington)

Counsel:         F E Geiringer for Appellant

J A Ongley for Respondent

Judgment:      25 October 2011

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against sentence and there is associated an appeal against a refusal by the sentencing judge to grant bail pending the appeal against sentence.

[2]      The circumstances are that the appellant was convicted in May 2011 of one count of breach of community work and a sentence of community work of 120 hours was imposed.  She was then convicted in July 2011 on one further count of breach of community work and she was convicted and discharged with a warning given by the judge that a harsher penalty was likely the next time.   She appeared again on a further  charge  of  breach  of  community work.    That  was  laid  on  21 July.    She appeared on that charge on 22 August and was remanded to September when she pleaded guilty.  She was remanded to 17 October.  On that date the judge had before

him a short pre-sentence report which commented on the possibility of community

WILKINSON V DEPARTMENT OF CORRECTIONS HC NEL CRI-2011-442-40 25 October 2011

detention  and  noted  that  a  sentence  of  community  detention  would  have  been deemed suitable but there was no address to be assessed for the sentence.  The report raised  the  possibility  that  the  Court  might  consider  a  further  remand  for  an alternative address to be assessed and the recommendation was that the probation officer was unable to recommend a community based sentence.

[3]      Judge Grace, in sentencing, noted the history of the matter.   He noted that there were 64 hours outstanding of community work.   He noted that there was no suitable address and in a comment to which counsel for the appellant takes issue.  He said:[1]

…  In order to get that, you appear to be wanting to go to WINZ to get a bond payment so you can get accommodation.  It seems to me that the State is being asked to fund you into a situation so you get accommodation where you have not been doing what the State has asked you to do in the first place.

[1] Department of Corrections v Wilkinson DC Nelson CRI-2011-042-002689, 17 October 2011 at [4].

[4]      He then said that the appellant had had ample opportunity to do the sentence and had chosen not to do so for her own reasons and he was not prepared to remand further.  He imposed a sentence of one month’s imprisonment and did not cancel the remaining hours of community work.

[5]      Counsel for the appellant submits that the sentence is manifestly excessive. He also submits that it is wrong in principle in that the judge apparently gave weight to the need for state funding for an address to be obtained.

[6]      Dealing with that latter point I do not consider that the judge’s remarks are to be taken as indicating that he took into account a need for  state assistance for accommodation as a factor to be taken into account in sentencing.  Rather it seems that he was conscious of the fact that there was no alternative address available, and the comment about the state funding seems to have been an observation in that context rather than a factor specifically relied upon.   I do not consider that the appellant has demonstrated that the sentence is wrong in principle.

[7]      So  the  question  is  whether  the  sentence  is  manifestly  excessive.    The response  which  involved  imprisonment,  of  an  offender  who  has  not  previously

served a sentence of imprisonment, for a breach of community work can I think best be described as stern.   I would not necessarily, however, regard the sentence of imprisonment as outside the available range.

[8]      Counsel  for the  appellant  has  today introduced  a report  from  the  prison noting that when the appellant was medically examined on admission to prison she was found to be pregnant. That was assessed, in a report dated yesterday, as being of nine weeks gestation.

[9]      Part of the explanation for the appellant’s failure to carry out the community work was that she was feeling ill and it is possible that that may provide an explanation. That was a matter which was not of course before the judge.

[10]     In the circumstances, counsel for the appellant submits that the appropriate outcome for the appeal would be for a sentence of imprisonment to be imposed which would equate to  the time which  has already been served, which counsel advises is approximately eight days.    Counsel for the Crown responsibly acknowledges, while not conceding that the sentence is manifestly excessive, that in the circumstances that would be a just outcome.  I too have formed that view.

[11]     The  appeal  is  allowed.    The  sentence  of  one  month’s  imprisonment  is quashed and in substitution I substitute a sentence equivalent to twice the time which the appellant has already served.  That should achieve the result that she should be immediately released on the basis that she has served the sentence which has been imposed.

[12]     In these circumstances it is unnecessary for me to address separately the appeal against refusal of bail.

Solicitors:           Felix Geiringer, Barrister Wellington, for Appellant

Luke Cunningham Clere, Wellington, for Respondent

“A D MacKenzie J”