The Queen v Ondra [2009] NZCA 489 (20 October 2009)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Ondra [2009] NZCA 489 (20 October 2009)

Last Updated: 27 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/2009 [2009] NZCA 489THE QUEEN

v

MAREK ONDRA

Hearing: 11 September 2009

Court: Chambers, Rodney Hansen and Fogarty JJ

Counsel: M W Ryan for Appellant
M D Downs for Crown

Judgment: 20 October 2009 at 10 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of imprisonment is quashed with effect from 9 am on 22 October 2009.

100. In substitution therefor, the appellant is sentenced, with effect from 9 am on 22 October 2009, to:
     • (a) home detention for six months at apartment 7A, 54 Liverpool Street, Auckland Central; and
     • (b) 100 hours’ community work.

4. The sentence of home detention is subject to a special condition that the appellant surrenders all passports he holds to the Chief Executive of the Department of Labour for the duration of the term of home detention.
   

REASONS OF THE COURT

(Given by Fogarty J)

[1] On 28 July 2009 Mr Ondra was sentenced to 16 months’ imprisonment after pleading guilty to one charge of cultivating cannabis. His co-offender was sentenced to seven months’ home detention and 200 hours’ community work on the same charge.
[2] Mr Ondra appeals against his sentence. He contends it should have been a sentence of home detention. Home detention had been indicated as a possible sentence at a sentence indication hearing, but the sentencing Judge thought that she could not impose it. Judge Cunningham said in her opening paragraph:

I am going to make it a 16-month imprisonment term in the end which means that you will only serve half, so it will be eight months. You have been mucked around by the system Mr Ondra and I am sorry about that. If I felt that I could properly do my job and give you home detention, I would, but I feel that I cannot, in view of the law.

[3] The reason why she felt she could not sentence the appellant to home detention was that Mr Ondra was, and had been at the time of the offending, in New Zealand unlawfully. She said:

The Court of Appeal has indicated that people who are not allowed to be lawfully in the community should not receive a community-based sentence.

[4] That was an error of law. It appears to have been based on her interpretation of a remark in a judgment of this Court in R v Hassan [2008] NZCA 402, where giving the decision of the Court of Appeal Ronald Young J commented at [34]:

There can be no question of this sentence being served by way of home detention. The appellant is not entitled to be resident in New Zealand and can expect to be deported immediately upon the completion of the sentence.

[5] Bashire Hassan was a Swedish citizen who had pleaded guilty to using a forged document, his birth certificate, and making a false declaration and attempting to pervert the course of justice to the Refugee Status Appeals Authority. Most of the judgment is an analysis of comparative cases in order to determine whether or not the District Court sentence of two years’ imprisonment was manifestly excessive. The comment made at [34] was not intended to mean that offenders unlawfully in New Zealand can never be sentenced to home detention; the Court was simply saying that, on the facts and in the circumstances of that case, home detention was out of the question.
[6] The Court cannot have intended more than that, as the more general proposition would have been contrary to a number of other appellate authorities. Had the Hassan Court intended to disagree with those other authorities, there would clearly have had to be discussion of them and why the Court considered them wrong. There is no such discussion, which must mean the remark was confined to the circumstances of that case.
[7] A number of cases hold that courts in sentencing should not take into account the possibility that, if the offender is here unlawfully, he or she might be removed from the country by the Immigration Service before he or she has completed any community-based sentence imposed.
[8] In R v Ahlquist [1989] 2 NZLR 177 (CA) Hardie Boys J for the Court said at 179:

In our view, the question of the removal of a person such as Ahlquist from the country must be an administrative matter. For we consider that the Court must maintain consistency of sentencing and not differentiate between convicted persons according to their country of origin.

That dictum was made in a context where the Court was responding to a suggestion that the Court should take into account the fact that Mr Ahlquist would, after sentence, in any event, be deported.

[9] In R v Zhang CA56/05 24 May 2005 Robertson J commented at [16]:

The appropriate sentence is a matter for the Courts, bearing in mind the totality of the relevant circumstances of both offence and offender. The issue of removal from New Zealand is for others and not a factor which can properly weigh in the sentencing process.

[10] In R v Appitu CA31/98 29 April 1998 the Court said:

... [T]he function of the Court in its criminal jurisdiction is to impose a sentence which is appropriate to the particular offending, which ordinarily should not be adjusted so as to interfere with those other processes which have their own bases and established regime.

[11] In R v Sabuncuoglu [2008] NZCA 448 Cooper J giving the decision of this Court observed at [34]:

The Courts must also maintain consistency of sentencing and not differentiate between convicted persons or according to their country of origin or the consequences which would flow following their release.

[12] Offenders who are unlawfully in New Zealand are liable for removal under the Immigration Act 1987. The making of a removal order is entirely a discretionary matter for the Chief Executive or designated immigration officer: see Part 2 of the Act. Liability for removal is neither conditional upon nor triggered by the offender’s convictions; instead, it is dependent upon their unlawful immigration status.
[13] The appellant last held a valid permit to be in New Zealand on 10 September 2006. He was served with a removal order on 26 June 2008. Obviously that order has not yet been executed. Execution of a removal order is neither automatic nor immediate. A designated immigration officer may cancel the order at any time: s 58.
[14] The Immigration Act does not contain any express prohibition upon a removal order being executed while the offender is serving a sentence of home detention or some lesser sentence. There is a provision that a removal order cannot be executed while a person is in prison undergoing imprisonment.
[15] For these reasons we are of the view that it was open to the sentencing Judge to consider the sentence of home detention which she had considered appropriate but felt Hassan ruled unavailable. To that end we sought a report.
[16] The Department of Corrections has considered the suitability of a three bedroom apartment in Auckland, which is occupied by a friend of the appellant. The appendixed report advises that the address is unsuitable because, although one security access card has been offered, two are required, one for the police and one for the probation officer. We assume that the security access cards provide access to the common area of the building and to the apartment. Under the terms of home detention the occupants agree to allow access at any time by a probation officer. The terms do not include the police. We are not sure why if one security access card is available, two cannot be made available. In any event, we do not think this qualification is a sufficient reason for concluding that the proposed address is unsuitable. The principal way that security is achieved with home detention is by use of the electronic bracelet. We consider there is an extremely low risk of the appellant seeking to tamper with this bracelet. Accordingly, we disregard the qualification in the Department of Corrections report.
[17] The Department of Corrections does not favour home detention to apartments. However, a significant part of the urban population now live in apartments. In the absence of a legislative policy to the contrary it would be wrong to rule out home detention for apartment dwellers.
[18] We turn to consider the duration of home detention. By the end of this month Mr Ondra will have been imprisoned for three months. He was sentenced on the basis that he is likely to serve eight months. We think in the circumstances a six month sentence of home detention is appropriate. We also think it appropriate that, like his co-offender, he be sentenced to community work.
[19] We acknowledge the possibility that the appellant will decide, given the likelihood of his removal at the end of the home detention term, to attempt early flight from the country. It is one thing if the Immigration Service decide he should be removed early; it is quite another if he were to decide to remove himself early! To this end, we have decided it is appropriate to impose a special condition of home detention (under s 80D of the Sentencing Act 2002) requiring the appellant to surrender all passports he holds to the Chief Executive of the Department of Labour for the duration of the term of home detention. In order to put in place this requirement and generally to ensure that the proposed home detention residence is ready, we are deferring the start of the substitute sentence to 9 am on 22 October 2009: see s 57A. In the meantime, the appellant must remain in prison.

Solicitors:
Crown Law Office, Wellington