THE QUEEN v RUTH KALPANA MCKENDRY [2002] NZCA 247 (29 August 2002)

IN THE court of appeal of new zealand

ca 265/02

THE QUEEN

V

RUTH KALPANA MCKENDRY

Hearing:	29 August 2002
Coram:	Blanchard J Robertson J Panckhurst J
Appearances:	S J O'Driscoll for Appellant J Jelaoe for Crown
Judgment: Reasons for Judgment	29 August 2002 4 September 2002

REASONS FOR THE judgment of the court DELIVERED BY PANCKHURST J

[1] At the conclusion of the hearing the court announced that the appeal would be dismissed and that we would give our reasons at a later date.

[2] The appeal was against a discretionary decision not to defer the start date of a sentence of imprisonment to enable an application for release to home detention to be considered.

[3] Following a jury trial the appellant and her partner were convicted of injuring with intent.In the early hours of 29 September 2001 a student, effectively a good samaritan, inquired as to the welfare of a member of a group who appeared to be in distress, possibly under some form of restraint.The appellant and her partner were in that group.Their response was to assault the complainant.She was both punched and kicked, including several punches while she was defenceless on the ground.

[4] Sentencing occurred in the District Court on 9 August 2002.The Judge, one of considerable trial experience, decided that the appellant's partner should be sentenced to twelve months imprisonment, subject to the grant of leave to apply for home detention.Reflecting the appellant's lesser involvement in the assault (she did not kick the victim) she was sentenced to six months imprisonment, also with leave granted to apply for home detention.The appellant does not challenge the substantive sentence.

[5] Mr O'Driscoll also applied to the Judge for an order deferring the start date of the sentence of imprisonment to enable an application for home detention to be determined.Section 100(1) of the Sentencing Act 2002 provides:

(1) The court may defer the start date of a sentence of imprisonment for a specified period of up to 2 months -

(a) on humanitarian grounds;or

(b) if the court has given leave for the offender to apply for home detention and it is satisfied that there are special reasons (such as retention of employment) why the sentence should not commence immediately.

[6] The Judge dealt with this aspect as follows:

I have listened to what he (Mr O'Driscoll) has said and I appreciate that you have got two young children.There are others who can look after them.I am not persuaded that that is sufficient to justify deferment in the circumstances.

As a result the appellant is presently in prison.Her application for release to home detention is due to be considered by the Parole Board on 12 September 2002.

[7] Mr O'Driscoll submitted that the Judge was wrong not to exercise his discretion in favour of deferment.Noticing that s100(1)(b) envisaged loss of employment as a special reason he asked rhetorically "whether the loss of contact between a mother and her six year old and four year old daughters (was) any more or any less `special' than loss of employment?"Counsel also pointed out that if a home detention release was granted on 12 September the appellant would by then have served almost five weeks of her sentence, an appreciable part of it (assuming she received early release in the absence of home detention).

[8] We are not persuaded that it would be appropriate to interfere with the Judge's exercise of discretion.The reason which he gave for non-deferment was a valid consideration.The most which can be said is that the interests of the children could have assumed more significance, but that is a question of weight and degree.We are in no way inclined to second-guess the assessment of a Judge who presided at the trial and imposed sentence with an immediate feel for all the circumstances of the case.It is most significant that there is no evidence before us to suggest the Judge's assessment that there were other family members who could adequately care for the children, was misplaced. Absent evidence of that kind, for example, there is nothing to indicate that the discretion was wrongly exercised.

[9] For these reasons the appeal was dismissed.

Solicitors:

O'Driscoll & Marks, Dunedin for Appellant

Crown Law Office, Wellington