Bates v R [2016] NZCA 485 (6 October 2016)

Last Updated: 18 October 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA306/2016 [2016] NZCA 485
BETWEEN	THOMAS WESLEY BATES Appellant
AND	THE QUEEN Respondent

Hearing:	5 September 2016
Court:	Miller, Courtney and Woodhouse JJ
Counsel:	A M Dooney for Appellant A J Ewing for Respondent
Judgment:	6 October 2016 at 10.30 am

JUDGMENT OF THE COURT

1. The appeal is allowed and the sentence of imprisonment is quashed.
2. A sentence of home detention for four months is substituted, with that sentence subject to the conditions recorded in this judgment.

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FURTHER REASONS OF THE COURT

(Given by Woodhouse J)

[1] For the reasons recorded in the judgment of 23 September 2016^[1] we held that, subject to provision of a suitable home detention residence report, the appeal against sentence would be allowed, the sentence of imprisonment quashed, and a sentence of four months’ home detention substituted.
[2] A home detention report, dated 4 October 2016, has been received from the Department of Corrections. In light of that report the proposed home detention sentence may be confirmed.
[3] The sentence of home detention is subject to the following conditions in addition to the standard conditions prescribed by s 80C of the Sentencing Act 2002:

• (a) The home detention residence is 44 Arcus Street, Raumanga, Whangarei.
• (b) The appellant is to travel directly to 44 Arcus Street, Raumanga, Whangarei immediately following his release from prison and await the arrival of the electronic monitoring company representative.
• (c) The appellant is not to purchase, possess or consume alcohol.
• (d) The appellant is to attend a full assessment and undertake such counselling and treatment for drug dependency as directed by the probation officer to the satisfaction of the programme provider and the probation officer.
• (e) The appellant is to attend an assessment for a departmental programme and, if found suitable, complete such departmental programmes and maintenance sessions as directed by the probation officer.
• (f) The appellant is to undertake any other such programmes/counselling to address his offending needs as deemed appropriate by the probation officer.

[4] The sentence is also subject to post-detention conditions for four months, as follows:

• (a) To undertake assessments for drug use as directed by a probation officer.
• (b) If found suitable, to undertake and complete counselling/programme or treatment for drug use as directed by a probation officer and to the satisfaction of the counsellor/programme/treatment provider.
• (c) To attend assessments for a departmental programme and, if found suitable, to complete a departmental programme and maintenance sessions to the satisfaction of the programme facilitators.
• (d) To undertake and complete any such counselling as directed by a probation officer.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Bates v R [2016] NZCA 456.