Police v Borell DC Taumarunui CRI-2013-068-000252 [2013] NZDC 2280 (12 December 2013)

Last Updated: 25 December 2016

IN THE DISTRICT COURT CRI-2013-068-000252

AT TAUMARUNUI

NEW ZEALAND POLICE

Informant

v

BEAU ROYCE VINCENT BORELL

Defendant

Date: 12 December 2013

Appearances: Sergeant D Grey for the Informant

K A Quinn for the Defendant

_{RULING OF JUDGE L H ATKINS QC}

[1] Beau Royce Vincent Borell sought a sentence indication on 19 November of this year. A sentence indication was given with respect to informations 0401, 0402,

0398 and 0405 and the indication given was that the sentence would be a sentence of imprisonment but it would not be more than two years. It could be anywhere in range between 12 months and two years. I also noted that it would be in range of a sentence of home detention and I would be inclined to the view that home detention would be appropriate if nothing were raised by Community Corrections indicating that it would be inappropriate, and providing an appropriate address can be put forward by Mr Borell. So, accordingly, the decision was that the overall position would be a sentence of imprisonment less than two years with a willingness to make it a sentence of home detention providing nothing was revealed by Community Corrections which would render that inappropriate and providing there is a suitable address.

[2] Following the provision of that sentencing indication guilty pleas were entered to informations ending 0398, 0402 and 0401 and the matter was remanded to this week to enable sentencing to take place.

[3] This week there was provided a pre-sentence report. The pre-sentence report indicated that neither the address nor the sentence itself was appropriate and gave reasons for that.

[4] Mr Borell then sought today to withdraw his guilty pleas and to defend all matters.

[5] Under s 115 Criminal Procedure Act 2011 a plea of guilty may be withdrawn by leave of the Court. It may be withdrawn at any time before the defendant has been sentenced or otherwise dealt with. It is then said in subs (2) that:

The Court must grant leave to a defendant to withdraw a plea of guilty referred to in s 116(1) if –

(a) The Court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in s 116(2) apply and it proposes to impose a sentence of a different type or types or the same type or types but a greater quantum than that specified in the sentence indication.

[6] Mr Borell now seeks to change his plea and he seeks to change his plea as best I can understand the argument that has been put forward by his counsel on the basis that he now faces an additional charge and that he felt pressured when he entered his guilty pleas because he wanted to get matters over with and resolved.

[7] I note the sentence indication is given on 12 November and that the guilty pleas were entered on 13 November. The situation is one in which he had plenty of time to consider his position and that he elected to enter guilty pleas. I am not of the view that he could be arguing that he was under any form of pressure to get matters over with; he had time to consider the position even if matters had gone ahead on the same day as a sentence indication was given. There was, in my assessment of the situation, no pressure on him to accept the position; he simply chose to do so. He

came along to Court his week with sentencing apparently going to be proceeding but an unfavourable pre-sentence report was received indicating that the address was not suitable and indicating also that home detention itself would not be suitable.

[8] In those circumstances he now seeks to argue that he felt under pressure at the time that he entered the guilty pleas and it may be that he is also attempting to argue something out of s 115, namely to the effect that a different type of sentence is going to be given.

[9] As I have already indicated, the sentence indication which I gave would be that it would be a sentence less than two years which could be converted to home detention providing there was nothing raised by Community Corrections to render that inappropriate. The situation is one in which that sentence indication it not altered by anything which has occurred in that the sentence would still be a sentence of two years or under. The only difficulty that he would be confronted by is that home detention would be available for reasons which are set out in the pre-sentence report.

[10] In short, I do not accept that he was under pressure. He was represented by counsel and he had time to consider the issue. Secondly, that there has been no indication from me of the sentence going beyond what was indicated in the sentence indication and, accordingly, in those circumstances I am of a view that his plea may not be withdrawn.

L H Atkins QC District Court Judge